EXHIBIT 10.52
OFFICE LEASE
BETWEEN
CRESCENT REAL ESTATE FUNDING VIII, L.P.
("LANDLORD")
AND
STARTEK USA, INC.
("TENANT")
TABLE OF CONTENTS
PAGE
----
1. Basic Lease Information ............................................ 1
2. Lease Grant ........................................................ 3
3. Term; Adjustment of Commencement Date; Early Access ................ 4
4. Rent ............................................................... 5
5. Tenant's Use of Premises ........................................... 12
6. Security Deposit ................................................... 13
7. Services to be Furnished by Landlord ............................... 13
8. Use of Electrical Services by Tenant ............................... 15
9. Repairs and Alterations ............................................ 16
10. Entry by Landlord .................................................. 17
11. Assignment and Subletting .......................................... 18
12. Liens .............................................................. 20
13. Indemnity .......................................................... 20
14. Insurance .......................................................... 15
15. Mutual Waiver of Subrogation ....................................... 21
16. Casualty Damage .................................................... 22
17. Condemnation ....................................................... 23
18. Events of Default .................................................. 23
19. Remedies ........................................................... 24
20. Limitation of Liability ............................................ 27
21. No Waiver .......................................................... 27
22. Tenant's Right to Possession ....................................... 28
23. Relocation ......................................................... 28
24. Holding Over ....................................................... 28
25. Subordination to Mortgages; Estoppel Certificate ................... 29
26. Attorneys' Fees .................................................... 29
27. Notice ............................................................. 29
28. Reserved Rights .................................................... 30
29. Surrender of Premises .............................................. 30
30. Hazardous Materials ................................................ 31
31. Miscellaneous ...................................................... 32
EXHIBITS AND RIDERS:
EXHIBIT A-1 OUTLINE AND LOCATION OF PREMISES
EXHIBIT A-2 LEGAL DESCRIPTION OF PROPERTY
EXHIBIT B RULES AND REGULATIONS
EXHIBIT C COMMENCEMENT LETTER
EXHIBIT D WORK LETTER
EXHIBIT E PARKING AGREEMENT
EXHIBIT F FLOOR PLAN OF PREFERENTIAL SPACE
i
EXHIBIT G DEPICTION OF LOCATION OF MONUMENT/RAISED WALL
EXHIBIT H MONUMENT/WALL AND SIGNAGE SPECIFICATIONS
RIDER NO. 1 PREFERENTIAL RIGHT TO LEASE
ii
OFFICE LEASE
This Office Lease (this "LEASE") is entered into by and between CRESCENT
REAL ESTATE FUNDING VIII, L.P., a Delaware limited partnership ("LANDLORD"), and
STARTEK USA, INC., a Colorado corporation ("TENANT"), and shall be effective as
of the date set forth below Landlord's signature (the "EFFECTIVE DATE")
1. BASIC LEASE INFORMATION. The key business terms used in this Lease are
defined as follows:
A. "BUILDING": The building commonly known as 44 Cook and located at 44
Cook Street, Denver, Colorado 80206.
B. "RENTABLE SQUARE FOOTAGE OF THE BUILDING" is agreed and stipulated to
be 124,174 square feet.
C. "PREMISES": The area shown on EXHIBIT A-1 to this Lease. The Premises
are located on floor four of the Building and known as suite number 400. The
"RENTABLE SQUARE FOOTAGE OF THE PREMISES" is deemed to be 14,077 square feet. If
the Premises include, now or hereafter, one or more floors in their entirety,
all corridors and restroom facilities located on such full floor(s) shall be
considered part of the Premises. Landlord and Tenant stipulate and agree that
the Rentable Square Footage of the Building and the Rentable Square Footage of
the Premises are correct and shall not be remeasured.
D. "BASE RENT":
ANNUAL RATE MONTHLY
PERIOD PER SQUARE FOOT BASE RENT
------ --------------- ---------
Months 1 - 12 $17.00 $19,942.42
Months 13 - 24 $18.50 $21,702.04
Months 25 - 48 $19.50 $22,875.13
Months 49 - 54 $20.00 $23,461.67
Tenant shall be entitled to an abatement of Base Rent for 7,077 Rentable Square
Feet of the Premises commencing on the Commencement Date (hereinafter defined)
and continuing for twelve (12) months thereafter (such that, for the first 12
months, Tenant shall be required to pay Base Rent on only 7,000 Rentable Square
Feet, or monthly payments of Nine Thousand Nine Hundred Sixteen and 67/100
Dollars ($9,916.67). Notwithstanding such partial abatement of Base Rent, upon
any Monetary Default (hereinafter defined) by Tenant under this Lease during
such period of partially abated Base Rent, Landlord may elect to cancel such
partial abatement of Base Rent in its entirety. In such event, Tenant shall
immediately commence payment of all subsequent installments of Base Rent as
stipulated above, as if never abated. In addition, if any Monetary Default
occurs after the expiration of the partially abated Base Rent period, Tenant
shall, promptly upon demand, pay Landlord an amount equal to all Base Rent
theretofore abated; provided, however, that if no such Monetary Default has
occurred within the first one (1) year following the Commencement Date, but
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a Monetary Default thereafter occurs, Landlord agrees that it shall decrease the
amount of previously abated Base Rent which Tenant would be required to re-pay
hereunder by an amount equal to one (1) month's abated Base Rent for each two
(2) month period following such first anniversary of the Commencement Date in
which no such Monetary Default occurs (e.g., if a Monetary Default occurs in
Months 15-16, Tenant shall only be required to re-pay 11 months of the abated
Base Rent; if a Monetary Default occurs in Months 17-18, Tenant shall only be
required to re-pay 10 months of the abated Base Rent, etc.), such that, if no
Monetary Default has occurred by the third anniversary of the Commencement Date,
this Base Rent re-payment provision will be deemed terminated. Such obligation
of Tenant to pay abated Base Rent upon a Monetary Default as provided herein
shall be independent of and in addition to Landlord's other rights and remedies
available under this Lease or at law or in equity.
E. "TENANT'S PRO RATA SHARE": The percentage equal to the Rentable Square
Footage of the Premises divided by the Rentable Square Footage of the Building.
Based on the current Rentable Square Footage of the Premises and Building,
Tenant's Pro Rata Share equates to 11.34%.
F. "BASE YEAR" for Operating Expenses: 2004.
G. "TERM": The period of approximately seventy-two (72) months starting on
the Commencement Date, subject to the provisions of ARTICLE 3.
H. "ESTIMATED COMMENCEMENT DATE": July 1, 2004, subject to adjustment, if
any, as provided in SECTION 3.A and the Work Letter, if any.
I. "SECURITY DEPOSIT": $19,942.42.
J. "GUARANTOR(S)": None.
K. "BUSINESS DAY(S)": Monday through Friday of each week, exclusive of New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the day
after Thanksgiving and Christmas Day ("HOLIDAYS"). Landlord may designate
additional Holidays, provided that the additional Holidays are commonly
recognized by other office buildings in the area where the Building is located.
L. "LAW(S)": All applicable statutes, codes, ordinances, orders, rules and
regulations of any municipal or governmental entity, now or hereafter adopted,
including the Americans with Disabilities Act and any other law pertaining to
disabilities and architectural barriers (collectively, "ADA"), and all laws
pertaining to the environment, including the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, 42 U.S.C. ss.9601 et seq.
("CERCLA"), and all restrictive covenants existing of record and all rules and
requirements of any existing association or improvement district affecting the
Property.
M. "NORMAL BUSINESS HOURS": 7:00 A.M. to 6:00 P.M. on Business Days and
8:00 A.M. to 1:00 P.M. on Saturdays, exclusive of Holidays.
N. "NOTICE ADDRESSES":
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Tenant: On or after the Commencement Date, notices shall be sent to Tenant at
the Premises with a copy to Tenant's counsel at the address set forth below.
Prior to the Commencement Date, notices shall be sent to Tenant at the following
address:
100 Garfield St. With a copy to:
Denver, CO 80206
Attn: Mr. Grant G. Lomas Mark A. Senn, Esq.
Phone #: (303) 262-4535 Senn Visciano Kirschenbaum
Fax #: (303) 388-9970 1801 California St., Suite 4300
Denver, CO 80202
Phone #: (303) 298-1122
Fax #: (303) 296-9101
Landlord: With a copy to: And to:
55 Madison Street, Suite 575 777 Main Street, Suite 2100 777 Main Street, Suite 2100
Denver, Colorado 80206 Fort Worth, Texas 76102 Fort Worth, Texas 76102
Attn: Property Manager Attn: Vice President, Attn: Legal Department
Phone #: (303) 333-4664 Asset Management Phone #: (817) 321-2100
Fax #: (303) 333-4593 Phone #: (817) 321-2100 Fax #: (817) 321-2000
Fax #: (817) 321-2000
Rent (defined in SECTION 4.A) is payable to the order of Crescent Real
Estate Funding VIII, L.P., at the following address: P.O. Box 844537, Dallas,
Texas 75284-4537 or by wire transfer to Bank of America, Dallas, Texas, ABA
111-0000-25, Crescent Real Estate Funding VIII, L.P., Account #004771163036, 44
Cook/Name of Tenant.
O. "OTHER DEFINED TERMS": In addition to the terms defined above, an index
of the other defined terms used in the text of this Lease is set forth below,
with a cross-reference to the paragraph in this Lease in which the definition of
such term can be found:
Affiliate .................................................... 11.E
Alterations .................................................. 9.C(1)
Audit Election Period ........................................ 4.G
Cable ........................................................ 9.A
Claims ....................................................... 13
Collateral ................................................... 19.E
Commencement Date ............................................ 3.A
Common Areas ................................................. 2
Completion Estimate .......................................... 16.B
Contamination ................................................ 30.C
Costs of Reletting ........................................... 19.B
Excess Operating Expenses .................................... 4.B
Expiration Date .............................................. 3.A
Force Majeure ................................................ 31.C
Hazardous Materials .......................................... 30.C
Landlord Parties ............................................. 13
Landlord Work ................................................ 3.A
Landlord's Rental Damages .................................... 19.B
Leasehold Improvements ....................................... 29
Minor Alterations ............................................ 9.C(1)
Monetary Default ............................................. 18.A
Mortgage ..................................................... 25
Mortgagee .................................................... 25
Operating Expenses ........................................... 4.D
Permitted Transfer ........................................... 11.E
Permitted Use ................................................ 5.A
Prime Rate ................................................... 19.B
Property ..................................................... 2
3
Provider ..................................................... 7.C
Relocated Premises ........................................... 23
Relocation Date .............................................. 23
Rent ......................................................... 4.A
Service Failure .............................................. 7.B
Special Installations ........................................ 29
Substantial Completion ....................................... Work Letter
Taking ....................................................... 17
Tenant Parties ............................................... 13
Tenant's Insurance ........................................... 14.A
Tenant's Property ............................................ 14.A
Tenant's Removable Property .................................. 29
Time Sensitive Default ....................................... 18.B
Transfer ..................................................... 11.A
Work Letter .................................................. 3.A
2. LEASE GRANT. Landlord leases the Premises to Tenant and Tenant leases the
Premises from Landlord, together with the right in common with others to use any
portions of the Property (defined below) that are designated by Landlord for the
common use of tenants and others, such as sidewalks, common corridors, vending
areas, lobby areas and, with respect to multi-tenant floors, restrooms and
elevator foyers (the "COMMON AREAS"). "PROPERTY" means the Building and the
parcel(s) of land on which it is located as more fully described on EXHIBIT A-2,
together with all other buildings and improvements located thereon; and the
Building garage(s) and other improvements serving the Building, if any, and the
parcel(s) of land on which they are located.
3. TERM; ADJUSTMENT OF COMMENCEMENT DATE; EARLY ACCESS.
A. TERM. This Lease shall govern the relationship between Landlord and
Tenant with respect to the Premises from the Effective Date through the last day
of the Term specified in SECTION 1.G (the "EXPIRATION DATE"), unless terminated
early in accordance with this Lease. The Term of this Lease (as specified in
SECTION 1.G) shall commence on the "COMMENCEMENT DATE", which shall be the
earliest of (1) the date on which the Landlord Work (defined below) is
Substantially Complete, as determined pursuant to the Work Letter (defined
below), or (2) the date on which the Landlord Work would have been Substantially
Complete but for Tenant Delay, as such term is defined in the Work Letter, or
(3) the date Tenant takes possession of any part of the Premises for purposes of
conducting business. If Landlord is delayed in delivering possession of the
Premises or any other space due to any reason, including Landlord's failure to
Substantially Complete the Landlord Work by the Estimated Commencement Date, the
holdover or unlawful possession of such space by any third party, the failure of
Landlord to obtain a termination of the existing rights to the Premises from the
current tenant of the Premises (the "CURRENT TENANT"), or for any other reason,
such delay shall not be a default by Landlord, render this Lease void or
voidable, or otherwise render Landlord liable for damages. Without limiting the
generality of the foregoing, Tenant acknowledges and agrees that Landlord's
ability to deliver the Premises to Tenant is expressly conditioned on the
termination of the Current Tenant's existing rights to the Premises and the
vacation of Current Tenant from the Premises on or before the Commencement Date;
provided, however, that if Landlord has not effectuated a termination of the
Current Tenant's rights to the Premises by May 21, 2004, then at any time
thereafter but prior to Landlord's effectuation of a termination of the Current
Tenant's rights to the Premises, Tenant may terminate this Lease by giving
written notice to Landlord of such termination, in which case this Lease shall
be deemed null, void and of no further effect as if the same had never been
entered into. In the event that Landlord has not effectuated a termination of
the Current Tenant's rights to the Premises on or before the Estimated
Commencement Date, then at any time thereafter, at Landlord's option, Landlord
may terminate this
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Lease and the same shall be null, void and of no further effect as if the same
had never been entered into. Promptly after the determination of the
Commencement Date, the Expiration Date, the Rent schedule and any other variable
matters, Landlord shall prepare and deliver to Tenant a commencement letter
agreement substantially in the form attached as EXHIBIT C. If such commencement
letter is not executed by Tenant within 30 days after delivery of same by
Landlord, then Tenant shall be deemed to have agreed with the matters set forth
therein. Notwithstanding any other provision of this Lease to the contrary, if
the Expiration Date would otherwise occur on a date other than the last day of a
calendar month, then the Term shall be automatically extended to include the
last day of such calendar month, which shall become the Expiration Date.
"LANDLORD WORK" means the work, if any, that Landlord is obligated to perform in
the Premises pursuant to a separate work letter agreement (the "WORK LETTER"),
if any, attached as EXHIBIT D. If a Work Letter is not attached to this Lease or
if an attached Work Letter does not require Landlord to perform any work, the
occurrence of the Commencement Date shall not be conditioned upon the
performance of work by Landlord.
B. ACCEPTANCE OF PREMISES. The Premises are accepted by Tenant in "as is"
condition and configuration subject to (1) any Landlord obligation to perform
Landlord Work, and (2) any latent defects in the Premises of which Tenant
notifies Landlord within one year after the Commencement Date [other than work
performed by Tenant Parties (defined below)]. TENANT HEREBY AGREES THAT THE
PREMISES ARE IN GOOD ORDER AND SATISFACTORY CONDITION AND THAT, EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN THIS LEASE, THERE ARE NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY LANDLORD REGARDING THE PREMISES,
THE BUILDING OR THE PROPERTY.
C. EARLY ACCESS. Prior to the date the Landlord Work is Substantially
Complete, Tenant's access to the Premises shall be permitted only with the prior
written consent of Landlord. Early access to the Premises shall be subject to
the terms and conditions of this Lease and Tenant shall pay Rent (defined in
SECTION 4.A) to Landlord for each day of such early access. However, if such
early access to the Premises is permitted by Landlord for the sole purpose of
performing improvements or installing furniture, equipment or other personal
property, Tenant shall not be required to pay Base Rent and Tenant's Pro Rata
Share of Excess Operating Expenses for any days of such early access; provided
however, Tenant shall pay for the cost of any other Building services requested
by Tenant (e.g., freight elevator usage).
4. RENT.
A. PAYMENTS. As consideration for this Lease, commencing on the
Commencement Date, Tenant shall pay Landlord, without any demand, setoff or
deduction, the total amount of Base Rent, Tenant's Pro Rata Share of Excess
Operating Expenses (defined in SECTION 4.B) and any and all other sums payable
by Tenant under this Lease (all of which are sometimes collectively referred to
as "RENT"). Tenant shall pay and be liable for all rental, sales and use taxes
(but excluding income taxes), if any, imposed upon or measured by Rent under
applicable Law. The monthly Base Rent and Tenant's Pro Rata Share of Excess
Operating Expenses shall be due and payable in advance on the first day of each
calendar month without notice or demand. All other items of Rent shall be due
and payable by Tenant on or before 30 days after billing by Landlord. All
payments of Rent shall be by good and sufficient check or by other means (such
as automatic debit or electronic transfer)
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acceptable to Landlord. If the Term commences on a day other than the first day
of a calendar month, the monthly Base Rent and Tenant's Pro Rata Share of any
Excess Operating Expenses for the month shall be prorated on a daily basis based
on a 360 day calendar year. Landlord's acceptance of less than the correct
amount of Rent shall be considered a payment on account of the earliest Rent
due. No endorsement or statement on a check or letter accompanying a check or
payment shall be considered an accord and satisfaction, and either party may
accept such check or payment without such acceptance being considered a waiver
of any rights such party may have under this Lease or applicable Law. Subject
only to any express rights set forth herein, Tenant's covenant to pay Rent is
independent of every other covenant in this Lease.
B. EXCESS OPERATING EXPENSES. Tenant shall pay Tenant's Pro Rata Share of
the amount, if any, by which Operating Expenses (defined in SECTION 4.D) for
each calendar year during the Term exceed Operating Expenses for the Base Year
(the "EXCESS OPERATING EXPENSES"). If Operating Expenses in any calendar year
decrease below the amount of Operating Expenses for the Base Year, Tenant's Pro
Rata Share of Operating Expenses for that calendar year shall be $0. In no event
shall Base Rent be reduced if Operating Expenses for any calendar year are less
than Operating Expenses for the Base Year. On or about January 1 of each
calendar year, Landlord shall provide Tenant with a good faith estimate of the
Excess Operating Expenses for such calendar year during the Term. On or before
the first day of each month, Tenant shall pay to Landlord a monthly installment
equal to one-twelfth of Tenant's Pro Rata Share of Landlord's estimate of the
Excess Operating Expenses. If Landlord determines that its good faith estimate
of the Excess Operating Expenses was incorrect, Landlord may provide Tenant with
a revised estimate. After its receipt of the revised estimate, Tenant's monthly
payments shall be based upon the revised estimate. If Landlord does not provide
Tenant with an estimate of the Excess Operating Expenses by January 1 of a
calendar year, Tenant shall continue to pay monthly installments based on the
most recent estimate(s) until Landlord provides Tenant with the new estimate.
Upon delivery of the new estimate, an adjustment shall be made for any month for
which Tenant paid monthly installments based on the same year's prior incorrect
estimate(s). Tenant shall pay Landlord the amount of any underpayment within 30
days after receipt of the new estimate. Any overpayment shall be credited
against the next sums due and owing by Tenant or, if no further Rent is due,
refunded directly to Tenant within 30 days of determination. The obligation of
Tenant to pay for Excess Operating Expenses as provided herein shall survive the
expiration or earlier termination of this Lease.
C. RECONCILIATION OF OPERATING EXPENSES. Within 120 days after the end of
each calendar year or as soon thereafter as is practicable, Landlord shall
furnish Tenant with a statement of the actual Operating Expenses and Excess
Operating Expenses (including a good faith itemization reasonably determined by
Landlord and delivered in the ordinary course of how Landlord determined such
good faith estimate) for such calendar year. If the most recent estimated Excess
Operating Expenses paid by Tenant for such calendar year are more than the
actual Excess Operating Expenses for such calendar year, Landlord shall apply
any overpayment by Tenant against Rent due or next becoming due; provided, if
the Term expires before the determination of the overpayment, Landlord shall,
within 30 days of determination, refund any overpayment to Tenant after first
deducting the amount of Rent due. If the most recent estimated Excess Operating
Expenses paid by Tenant for the prior calendar year are less than the actual
Excess Operating Expenses for such year, Tenant shall pay Landlord, within 30
days after its receipt of the statement of Operating Expenses, any underpayment
for the prior calendar year.
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D. OPERATING EXPENSES DEFINED. "OPERATING EXPENSES" means all costs and
expenses incurred or accrued in each calendar year in connection with the
ownership, operation, maintenance, management, repair and protection of the
Property which are directly attributable or reasonably allocable to the
Building, including Landlord's personal property used in connection with the
Property and including all costs and expenditures relating to the following:
(1) Operation, maintenance, repair and replacements of any part of
the Property, including the mechanical, electrical, plumbing, HVAC, vertical
transportation, fire prevention and warning and access control systems;
materials and supplies (such as light bulbs and ballasts); equipment and tools;
floor, wall and window coverings; personal property; required or beneficial
easements; and related service agreements and rental expenses, except that if
such replacements or repairs are properly classified as capital in nature under
sound real estate accounting principles consistently applied, the cost of such
replacements or repairs shall be included in Operating Expenses and amortized
pursuant to SECTION 4.D(9) below. As used in this Lease, the "sound real estate
accounting principles" used by Landlord in calculating Operating Expenses will,
to the extent applicable and except as otherwise provided in this Lease, be
consistent with "generally accepted accounting principles" or "GAAP".
(2) Administrative and management fees, including accounting,
information and professional services (except for negotiations and disputes with
specific tenants not affecting other parties); management office(s); and wages,
salaries, benefits, reimbursable expenses and taxes (or allocations thereof) for
full and part time personnel involved in operation, maintenance and management.
(3) Janitorial service; window cleaning; waste disposal; gas, water
and sewer and other utility charges (including add-ons); and landscaping,
including all applicable tools and supplies.
(4) Property, liability and other insurance coverages carried by
Landlord, including deductibles and risk retention programs and a proportionate
allocation of the cost of blanket insurance policies maintained by Landlord
and/or its Affiliates (defined below).
(5) Real estate taxes, assessments, business taxes, excises,
association dues, fees, levies, charges and other taxes of every kind and nature
whatsoever, general and special, extraordinary and ordinary, foreseen and
unforeseen, including interest on installment payments, which may be levied or
assessed against or arise in connection with ownership, use, occupancy, rental,
operation or possession of the Property (including personal property taxes for
property that is owned by Landlord and used in connection with the operation,
maintenance and repair of the Property), or substituted, in whole or in part,
for a tax previously in existence by any taxing authority, or assessed in lieu
of a tax increase, or paid as rent under any ground lease. Real estate taxes do
not include Landlord's income, franchise or estate taxes (except to the extent
such excluded taxes are assessed in lieu of taxes included above).
(6) Compliance with Laws, including license, permit and inspection
fees (but not in duplication of capital expenditures amortized as provided in
SECTION 4.D(9)); and all expenses and fees, including attorneys' fees and court
or other venue of dispute resolution costs, incurred in negotiating or
contesting real estate taxes or the validity and/or applicability of any
governmental
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enactments which may affect Operating Expenses; provided Landlord shall credit
against Operating Expenses any refunds received from such negotiations or
contests to the extent originally included in Operating Expenses (less
Landlord's costs).
(7) Building safety services, to the extent provided or contracted
for by Landlord.
(8) Goods and services purchased from Landlord's subsidiaries and
Affiliates to the extent the cost of same is generally consistent with rates
charged by unaffiliated third parties for similar goods and services.
(9) Amortization of capital expenditures incurred: (a) to conform
with Laws which are amended, become effective, or are interpreted or enforced
differently, after the date of this Lease; provided, however, all capital
expenditures made in order to conform to or comply with ADA shall be included in
Operating Expenses; (b) to provide or maintain building standards (other than
building standard tenant improvements and any property improvements of a
structural nature [an example of which is an entire roof replacement which would
not be included as Operating Expense, but maintenance items such as the
replacement of a chiller component of an energy management system would be
included in Operating Expenses]); or (c) with the intention of promoting safety
or reducing or controlling increases in Operating Expenses, such as lighting
retrofit and installation of energy management systems. Such expenditures shall
be amortized uniformly over the following periods of time (together with
interest on the unamortized balance at the Prime Rate (defined in SECTION 19.B)
as of the date incurred plus 2%): for building improvements, the shorter of 10
years or the estimated useful life of the improvement; and for all other items,
3 years for expenditures under $50,000 and 5 years for expenditures in excess of
$50,000. Notwithstanding the foregoing, Landlord may elect to amortize capital
expenditures under this subsection over a longer period of time based upon (i)
the purpose and nature of the expenditure, (ii) the relative capital burden on
the Property, (iii) for cost savings projects, the anticipated payback period,
and (iv) otherwise in accordance with sound real estate accounting principles
consistently applied.
(10) Electrical services used in the operation, maintenance and use
of the Property; sales, use, excise and other taxes assessed by governmental
authorities on electrical services supplied to the Property, and other costs of
providing electrical services to the Property.
E. EXCLUSIONS FROM OPERATING EXPENSES. Operating Expenses exclude the
following expenditures:
(1) Leasing commissions, attorneys' fees and other expenses related
to leasing tenant space and constructing improvements for the sole benefit of an
individual tenant.
(2) Goods and services furnished to an individual tenant of the
Building which are above building standard and which are separately reimbursable
directly to Landlord in addition to Excess Operating Expenses.
(3) Repairs, replacements and general maintenance paid by insurance
proceeds or condemnation proceeds.
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(4) Except as provided in SECTION 4.D(9), depreciation,
amortization, interest payments on any encumbrances on the Property and the cost
of capital improvements or additions.
(5) Costs of installing any specialty service, such as an
observatory, broadcasting facility, luncheon club, or athletic or recreational
club.
(6) Expenses for repairs or maintenance related to the Property
which have been reimbursed to Landlord pursuant to warranties or service
contracts.
(7) Costs (other than maintenance costs) of any art work (such as
sculptures or paintings) used to decorate the Building.
(8) Principal or interest payments on indebtedness secured by liens
against the Property, or costs of refinancing such indebtedness.
(9) Expenses incurred in leasing or procuring new tenants, including
advertising and marketing expenses and expenses for preparation of leases or
renovating space for new tenants, rent allowances, lease takeover costs, payment
of moving costs and similar costs and expenses.
(10) Overtime and other costs of curing defaults by Landlord or
performing work which is required to be performed by Landlord at Landlord's sole
cost and expense.
(11) The cost of any work or service performed for any tenant
(including Tenant) at such tenant's cost.
(12) Landlord's general overhead and general administrative expenses
except as provided in SECTION 4.D(2).
(13) Costs related to the existence and maintenance of Landlord as a
legal entity, except to the extent attributable to the operation and management
of the Property.
(14) Costs incurred as a result of an intentional tort , gross
negligence or willful misconduct by Landlord or its agents.
(15) Costs relating to disputes between Landlord and a specific
tenant of the Building.
(16) The cost (including legal fees) of any disputes (other than tax
disputes and those which generally benefit the tenants of the Property), between
Landlord or any employee or agent of Landlord, and any Mortgagee(s).
(17) Costs incurred for use of any portion of the Property for
special events or private events.
(18) Interest and penalties due to late payment of any amounts owed
by Landlord, except such as may be incurred as a result of Tenant's failure to
timely pay its portion of such amounts or as a result of Landlord's contesting
such amounts in good faith.
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(19) Costs, penalties and fines incurred due to the violation by
Landlord or any other tenant of the Building of Laws, or the terms and
conditions of any lease pertaining to the Building, except such as may be
incurred by Landlord in contesting in good faith the alleged violation.
(20) Costs of correcting latent defects in the Premises which are
disclosed to Landlord within one year after the Commencement Date.
(20) Any ground lease rental.
(21) Any "validated" parking for any entity.
(22) Costs arising from Landlord's charitable or political
contributions.
F. PRORATION OF OPERATING EXPENSES; ADJUSTMENTS. If Landlord incurs
Operating Expenses for the Property together with one or more other buildings or
properties, whether pursuant to a reciprocal easement agreement, common area
agreement or otherwise, the shared costs and expenses shall be equitably
prorated and apportioned by Landlord between the Property and the other
buildings or properties. If the Building is not 100% occupied during any
calendar year or partial calendar year or if Landlord is not supplying services
to 100% of the total Rentable Square Footage of the Building at any time during
a calendar year or partial calendar year, Operating Expenses shall be determined
as if the Building had been 100% occupied and Landlord had been supplying
services to 100% of the Rentable Square Footage of the Building during that
calendar year. If Tenant pays for Tenant's Pro Rata Share of Operating Expenses
based on increases over a "BASE YEAR" and Operating Expenses for a calendar year
are determined as provided in the prior sentence, Operating Expenses for the
Base Year shall also be determined as if the Building had been 100% occupied and
Landlord had been supplying services to 100% of the Rentable Square Footage of
the Building. The extrapolation of Operating Expenses under this Section shall
be performed by Landlord by adjusting the cost of those components of Operating
Expenses that are impacted by changes in the occupancy of the Building in
accordance with sound real estate accounting principles, consistently applied.
Landlord will not recover in any one calendar year more than 100% of the actual
Operating Expenses for such year.
G. AUDIT RIGHTS. Within 60 days after Landlord furnishes its statement of
actual Operating Expenses for any calendar year (including the Base Year) (the
"AUDIT ELECTION PERIOD"), Tenant may, at its expense, elect to audit Landlord's
Operating Expenses for such calendar year only, subject to the following
conditions: (1) there is no uncured event of default under this Lease; (2) the
audit shall be prepared by an independent certified public accounting firm of
recognized national or regional standing; (3) in no event shall any audit be
performed by a firm retained on a "contingency fee" basis; (4) the audit shall
commence within 30 days after Landlord makes Landlord's books and records
available to Tenant's auditor and shall conclude within 60 days after
commencement; (5) the audit shall be conducted during Landlord's normal business
hours at the location where Landlord maintains its books and records and shall
not unreasonably interfere with the conduct of Landlord's business; (6) Tenant
and its accounting firm shall treat any audit in a confidential manner and shall
each execute Landlord's confidentiality agreement for Landlord's benefit prior
to commencing the audit; and (7) the accounting firm's audit report shall, at no
charge
10
to Landlord, be submitted in draft form for Landlord's review and comment before
the final approved audit report is delivered to Landlord, and any reasonable
comments by Landlord shall be incorporated into the final audit report. This
paragraph shall not be construed to limit, suspend, or abate Tenant's obligation
to pay Rent when due, including estimated Excess Operating Expenses. Landlord
shall credit any overpayment determined by the final approved audit report
against the next Rent due and owing by Tenant or, if no further Rent is due,
refund such overpayment directly to Tenant within 30 days of determination.
Likewise, Tenant shall pay Landlord any underpayment determined by the final
approved audit report within 30 days of determination. The foregoing obligations
shall survive the expiration or termination of this Lease. If Tenant does not
give written notice of its election to audit Landlord's Operating Expenses
during the Audit Election Period, Landlord's Operating Expenses for the
applicable calendar year shall be deemed approved for all purposes, and Tenant
shall have no further right to review or contest the same. The right to audit
granted hereunder is personal to the initial Tenant named in this Lease and to
any assignee under a Permitted Transfer (defined below) and shall not be
available to any subtenant under a sublease of the Premises. If the audit proves
that Landlord's calculation of Operating Expenses for the calendar year under
inspection was overstated by more than five percent (5%), then, after
verification, Landlord shall pay Tenant's actual reasonable out-of-pocket audit
and inspection fees (including, if applicable, reasonable travel costs of one
auditor if records are not made available to Tenant in the Denver, Colorado
metropolitan area) applicable to the review of said calendar year statement
within thirty (30) days after receipt of Tenant's invoice therefor.
11
5. TENANT'S USE OF PREMISES.
A. PERMITTED USES. The Premises shall be used only for general office use
(the "PERMITTED USE") and for no other use whatsoever. Tenant shall not use or
permit the use of the Premises for any purpose which is illegal, creates
obnoxious odors (including tobacco smoke), noises or vibrations, is dangerous to
persons or property, increases Landlord's insurance costs, or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Building or interferes with the operation or maintenance of the Property. Except
as provided below, the following uses are expressly prohibited in the Premises:
schools, government offices or agencies; personnel agencies; collection
agencies; credit unions; data processing, telemarketing or reservation centers;
medical treatment and health care; radio, television or other telecommunications
broadcasting; restaurants and other retail; customer service offices of a public
utility company; or any other purpose which would, in Landlord's reasonable
opinion, impair the reputation or quality of the Building, overburden any of the
Building systems, Common Areas or parking facilities (including any use which
would create a population density in the Premises which is in excess of the
density which is standard for the Building), impair Landlord's efforts to lease
space or otherwise interfere with the operation of the Property. Notwithstanding
the foregoing, the following ancillary uses are permitted in the Premises only
so long as they do not, in the aggregate, occupy more than 10% of the Rentable
Square Footage of the Premises or any single floor (whichever is less): (1) the
following services provided by Tenant exclusively to its employees: schools,
training and other educational services; credit unions; and similar employee
services; and (2) the following services directly and exclusively supporting
Tenant's business: telemarketing; reservations; storage; data processing; debt
collection; and similar support services.
B. COMPLIANCE WITH LAWS. Tenant shall comply with all Laws regarding the
operation of Tenant's business and Tenant's use, condition, configuration and
occupancy of the Premises and the use of the Common Areas. Tenant, within 10
days after receipt, shall provide Landlord with copies of any notices Tenant
receives regarding a violation or alleged or potential violation of any Laws
concerning the Premises. Tenant shall comply with the rules and regulations of
the Building attached as EXHIBIT B and such other reasonable rules and
regulations (or modifications thereto) adopted by Landlord from time to time
provided such modifications do not materially diminish the rights of Tenant or
add additional charges to Tenant under this Lease and provided further that in
the event there is a conflict between the rules and regulations and this Lease,
the terms of this Lease shall govern. Such rules and regulations will be applied
in an equitable manner as determined by Landlord. Tenant shall also cause its
agents, contractors, subcontractors, employees, customers, and subtenants to
comply with all rules and regulations.
C. TENANT'S SECURITY RESPONSIBILITIES. Tenant shall (1) lock the doors to
the Premises and take other reasonable steps to secure the Premises and the
personal property of all Tenant Parties (defined in SECTION 13) and any of
Tenant's transferees, contractors or licensees in the Common Areas and parking
facilities of the Building and Property, from unlawful intrusion, theft, fire
and other hazards; (2) subject to Landlord's obligations under SECTION 9.B, keep
and maintain in good working order all security and safety devices installed in
the Premises by or for the benefit of Tenant (such as locks, smoke detectors and
burglar alarms); and (3) cooperate with Landlord and other tenants in the
Building on Building safety matters. Tenant acknowledges that any security or
safety measures employed by Landlord are for the protection of Landlord's own
interests; that Landlord is
12
not a guarantor of the security or safety of the Tenant Parties or their
property; and that such security and safety matters are the responsibility of
Tenant and the local law enforcement authorities.
6. SECURITY DEPOSIT. The Security Deposit shall be delivered to Landlord upon
the execution of this Lease by Tenant and shall be held by Landlord (without
liability for interest, except to the extent required by Law) as security for
the performance of Tenant's obligations under this Lease. The Security Deposit
is not an advance payment of Rent or a measure of Tenant's liability for
damages. Landlord may, from time to time while an event of default remains
uncured, without prejudice to any other remedy, use all or a portion of the
Security Deposit to satisfy past due Rent, cure any uncured default by Tenant,
or repay Landlord for damages and charges for which Tenant is legally liable
under this Lease or resulting from Tenant's breach of this Lease. If Landlord
uses the Security Deposit, Tenant shall on demand restore the Security Deposit
to its original amount and such use by Landlord of the Security Deposit shall
not constitute a cure of the existing event of default until such time as the
entire amount owing to Landlord is paid in full and the Security Deposit is
fully restored. Provided that Tenant has performed all of its obligations
hereunder, Landlord shall return any unapplied portion of the Security Deposit
to Tenant within 30 days after the later to occur of: (A) the date Tenant
surrenders possession of the Premises to Landlord in accordance with this Lease;
or (B) the Expiration Date. Tenant does hereby authorize Landlord to withhold
from the Security Deposit all amounts allowed by Law and the amount reasonably
anticipated by Landlord to be owed by Tenant as a result of an underpayment of
Tenant's Pro Rata Share of any Excess Operating Expenses for the final year of
the Term. To the fullest extent permitted by applicable Law, Tenant agrees that
the provisions of this ARTICLE 6 shall supersede and replace all statutory
rights of Tenant under applicable Law (if any) regarding the retention,
application or return of security deposits. If Landlord transfers its interest
in the Premises, Landlord shall assign the Security Deposit to the transferee
and, following the assignment and the delivery to Tenant of an acknowledgement
of the transferee's responsibility for the Security Deposit if required by Law,
Landlord shall have no further liability for the return of the Security Deposit.
Landlord shall not be required to keep the Security Deposit separate from its
other accounts.
7. SERVICES FURNISHED BY LANDLORD.
A. STANDARD SERVICES. Subject to the provisions of this Lease, Landlord
agrees to furnish (or cause a third party provider to furnish) the following
services to Tenant during the Term:
(1) Water service for use in the lavatories on each floor on which
the Premises are located.
(2) Heat and air conditioning in season during Normal Business
Hours, at such temperatures and in such amounts as required by governmental
authority or as supplied by comparable office buildings with comparable
densities in the Cherry Creek submarket of Denver, Colorado, taking into account
age, size and other relevant operating factors. Tenant, upon such notice as is
reasonably required by Landlord, and subject to the capacity of the Building
systems, may request HVAC service during hours other than Normal Business Hours.
Tenant shall pay Landlord the standard charge for the additional service as
determined by Landlord from time to time.
(3) Maintenance and repair of the Property as described in SECTION
9.B.
13
(4) Janitorial service five days per week (excluding Holidays), as
determined by Landlord. If Tenant's use of the Premises, floor covering or other
improvements require special services in excess of the standard services for the
Building, Tenant shall pay the additional cost attributable to the special
services.
(5) Elevator service (with at least one passenger elevator available
at all times, emergencies, events of Force Majeure and/or temporary closures due
to maintenance requiring all elevators to be shut down, excepted), subject to
proper authorization and Landlord's policies and procedures for use of the
elevator(s) in the Building.
(6) Exterior window washing at such intervals as determined by
Landlord.
(7) Electricity to the Premises for general office use, in
accordance with and subject to the terms and conditions in ARTICLE 8.
B. SERVICE INTERRUPTIONS. For purposes of this Lease, a "SERVICE FAILURE"
shall mean any interruption, suspension or termination of services being
provided to Tenant by Landlord or by third-party providers, whether engaged by
Tenant or pursuant to arrangements by such providers with Landlord, which are
due to (1) the application of Laws; (2) the failure, interruption or
malfunctioning of any electrical or mechanical equipment, utility or other
service to the Building or Property; (3) the performance of repairs,
maintenance, improvements or alterations; or (4) the occurrence of any other
event or cause whether or not within the reasonable control of Landlord. No
Service Failure shall render Landlord liable to Tenant, constitute a
constructive eviction of Tenant, give rise to an abatement of Rent, or relieve
Tenant from the obligation to fulfill any covenant or agreement. Notwithstanding
the foregoing, commencing on the 6th consecutive Business Day of a Service
Failure which is either within or beyond the control of Landlord (unless the
Service Failure is caused by a fire or other casualty, in which event SECTION 16
controls), Tenant shall, as its sole remedy, be entitled to an equitable
diminution of Base Rent based upon the pro rata portion of the Premises which is
rendered unfit for occupancy for the Permitted Use, except to the extent such
Service Failure is caused by a Tenant Party. In no event shall Landlord be
liable to Tenant for any loss or damage, including the theft of Tenant's
Property (defined in ARTICLE 14), arising out of or in connection with any
Service Failure or the failure of any Building safety services, personnel or
equipment.
C. THIRD PARTY SERVICES. If Tenant desires any service which Landlord has
not specifically agreed to provide in this Lease, such as private security
systems or telecommunications services serving the Premises, Tenant shall
procure such service directly from a reputable third party service provider
("PROVIDER") for Tenant's own account. Tenant shall require each Provider to
comply with the Building's rules and regulations, all Laws, and Landlord's
reasonable policies and practices for the Building. Tenant acknowledges
Landlord's current policy that requires all Providers utilizing any area of the
Property outside the Premises to be approved by Landlord and to enter into a
written agreement acceptable to Landlord prior to gaining access to, or making
any installations in or through, such area. Accordingly, Tenant shall give
Landlord written notice sufficient for such purposes.
14
8. USE OF ELECTRICAL SERVICES BY TENANT.
A. LANDLORD'S ELECTRICAL SERVICE. Subject to the terms of this Lease,
Landlord shall furnish building standard electrical service to the Premises
sufficient to operate customary lighting, office machines and other equipment of
similar low electrical consumption. Landlord may, at any time and from time to
time, calculate Tenant's actual electrical consumption in the Premises by a
survey conducted by a reputable consultant selected by Landlord, all at Tenant's
expense. If such survey or submeter does not indicate above building standard
usage by Tenant, Landlord shall pay the cost of such survey or submeter. The
cost of any electrical consumption in excess of that which Landlord determines
is standard for the Building shall be paid by Tenant in accordance with SECTION
8.D. The furnishing of electrical services to the Premises shall be subject to
the rules, regulations and practices of the supplier of such electricity and of
any municipal or other governmental authority regulating the business of
providing electrical utility service. Landlord shall not be liable or
responsible to Tenant for any loss, damage or expense which Tenant may sustain
or incur if either the quantity or character of the electrical service is
changed or is no longer available or no longer suitable for Tenant's
requirements.
B. SELECTION OF ELECTRICAL SERVICE PROVIDER. Landlord shall have and
retain the sole right to select the provider of electrical services to the
Building and/or the Property. To the fullest extent permitted by Law, Landlord
shall have the continuing right to change such utility provider. All charges and
expenses incurred by Landlord due to any such changes in electrical services,
including maintenance, repairs, installation and related costs, shall be
included in the electrical services costs referenced in SECTION 4.D(10), unless
paid directly by Tenant.
C. SUBMETERING. Landlord shall have the continuing right, upon 30 days
written notice, to install a submeter for the Premises at Tenant's expense, but
such expense shall only be charged to Tenant if Landlord is installing submeters
for all or substantially all tenants or has a reasonable belief that Tenant's
electrical consumption is above building standard. If submetering is installed
for the Premises, Landlord may charge for Tenant's actual electrical consumption
monthly in arrears for the kilowatt hours used, a rate per kilowatt hour equal
to that charged to Landlord by the provider of electrical service to the
Building during the same period of time (plus, to the fullest extent permitted
by applicable Laws, an administrative fee equal to 10% of such charge), except
as to electricity directly purchased by Tenant from third party providers after
obtaining Landlord's consent to the same. In the event Landlord is unable to
determine the exact kilowatt hourly charge during the period of time, Landlord
shall use the average kilowatt hourly charge to the Building for the first
billing cycle ending after the period of time in question. Even if the Premises
are submetered, Tenant shall remain obligated to pay Tenant's Pro Rata Share of
the cost of electrical services as provided in SECTION 4.B, except that Tenant
shall be entitled to a credit against electrical services costs equal to that
portion of the amounts actually paid by Tenant separately and directly to
Landlord which are attributable to building standard electrical services
submetered to the Premises.
D. EXCESS ELECTRICAL SERVICE. Tenant's use of electrical service shall not
exceed, in voltage, rated capacity, use beyond Normal Business Hours or overall
load, that which Landlord deems to be standard for the Building (subject to
SECTION 8.A above). If Tenant requests permission to consume excess electrical
service, Landlord may refuse to consent or may condition consent upon conditions
that Landlord reasonably elects (including the installation of utility service
upgrades,
15
meters, submeters, air handlers or cooling units). The costs of any approved
additional consumption (to the extent permitted by Law), installation and
maintenance shall be paid by Tenant.
9. REPAIRS AND ALTERATIONS.
A. TENANT'S REPAIR OBLIGATIONS. Tenant shall keep the Premises in good
condition and repair, ordinary wear and tear excepted. Tenant's repair
obligations include, without limitation, repairs to: (1) floor covering and/or
raised flooring; (2) interior partitions; (3) doors; (4) the interior side of
demising walls; (5) electronic, phone and data cabling and related equipment
(collectively, "CABLE") that is installed by or for the benefit of Tenant
whether located in the Premises or in other portions of the Building; (6)
supplemental air conditioning units, private showers and kitchens, including hot
water heaters, plumbing, dishwashers, ice machines and similar facilities in the
Premises serving Tenant exclusively; (7) phone rooms used exclusively by Tenant
in the Premises; (8) Alterations (defined below) performed by contractors
retained by Tenant, including related HVAC balancing; and (9) all of Tenant's
furnishings, trade fixtures, equipment and inventory. Prior to performing any
such repair obligation, Tenant shall give written notice to Landlord describing
the necessary maintenance or repair. Upon receipt of such notice, Landlord may
elect either to perform any of the maintenance or repair obligations specified
in such notice (provided Landlord's charge for such work is competitive with the
fees charged for comparable work by contractors performing work in the Cherry
Creek submarket of Denver, Colorado), or require that Tenant perform such
obligations by using contractors approved by Landlord. All work shall be
performed at Tenant's expense in accordance with the rules and procedures
described in SECTION 9.C below. If Tenant fails to make any repairs to the
Premises for more than 15 days after notice from Landlord (although notice shall
not be required if there is an emergency), Landlord may, in addition to any
other remedy available to Landlord, make the repairs, and Tenant shall pay to
Landlord the reasonable cost of the repairs within 30 days after receipt of an
invoice, together with an administrative charge in an amount equal to 15% of the
cost of the repairs.
B. LANDLORD'S REPAIR OBLIGATIONS. Landlord shall keep and maintain in good
repair and working order and make repairs to and perform maintenance upon: (1)
structural elements of the Building; (2) standard mechanical (including HVAC),
electrical, plumbing and fire/life safety systems serving the Building
generally; (3) Common Areas; (4) the roof of the Building; (5) exterior windows
of the Building; and (6) elevators serving the Building. Landlord shall promptly
make repairs (taking into account the nature and urgency of the repair) for
which Landlord is responsible. If any of the foregoing maintenance or repair is
necessitated due to the negligent or willful acts or omissions of any Tenant
Party (defined in SECTION 13), Tenant shall pay the costs of such repairs or
maintenance to Landlord within 30 days after receipt of an invoice, together
with an administrative charge in an amount equal to 10% of the cost of the
repairs.
C. ALTERATIONS.
(1) When Consent Is Required. Tenant shall not make alterations,
additions or improvements to the Premises or install any Cable in the Premises
or other portions of the Building (collectively, "ALTERATIONS") without first
obtaining the written consent of Landlord in each instance. However, Landlord's
consent shall not be required for any Alteration that satisfies all of the
following criteria (a "MINOR ALTERATION"): (a) is of a cosmetic nature such as
painting, wallpapering, hanging pictures and installing carpeting; (b) is not
visible from outside the Premises or Building; (c)
16
will not affect the systems or structure of the Building; and (d) does not
require work to be performed inside the walls or above the ceiling of the
Premises.
(2) Requirements For All Alterations, Including Minor Alterations.
Prior to starting work on any Alteration (other than a Minor Alteration), Tenant
shall furnish to Landlord for review and approval: plans and specifications;
names of proposed contractors (provided that Landlord may designate specific
contractors with respect to Building systems); copies of contracts; necessary
permits and approvals; evidence of contractors' and subcontractors' insurance;
and Tenant's security for performance of the Alteration. Changes to the plans
and specifications must also be submitted to Landlord for its approval. Prior to
starting work on any Minor Alteration, Tenant shall furnish to Landlord a copy
of plans and specifications, if any; names of proposed contractors; copies of
contracts; and evidence of contractors' and subcontractors' insurance.
Landlord's waiver on one occasion shall not waive Landlord's right to enforce
such requirements on any other occasion. Alterations shall be constructed in a
good and workmanlike manner using materials of a quality that is at least equal
to the quality designated by Landlord as the minimum standard for the Building.
Landlord may designate reasonable rules, regulations and procedures for the
performance of Alterations in the Building and, to the extent reasonably
necessary to avoid disruption to the occupants of the Building, shall have the
right to designate the time when Alterations may be performed. Tenant shall
reimburse Landlord within 30 days after receipt of an invoice for out-of-pocket
sums paid by Landlord for third party examination of Tenant's plans for
Alterations. In addition, within 30 days after receipt of an invoice from
Landlord, Tenant shall pay to Landlord a fee equal to 10% of the total cost of
such Alterations for Landlord's oversight and coordination of any Alterations
other than a Minor Alteration. No later than 30 days after completion of the
Alterations, Tenant shall furnish "as-built" plans (which shall not be required
for Minor Alterations), completion affidavits, full and final waivers of liens,
receipts and bills covering all labor and materials. Tenant shall assure that
the Alterations comply with all insurance requirements and Laws.
(3) Landlord's Liability For Alterations. Landlord's approval of an
Alteration shall not be a representation by Landlord that the Alteration
complies with applicable Laws or will be adequate for Tenant's use. Tenant
acknowledges that Landlord is not an architect or engineer, and that the
Alterations will be designed and/or constructed using independent architects,
engineers and contractors. Accordingly, Landlord does not guarantee or warrant
that the applicable construction documents will comply with Laws or be free from
errors or omissions, or that the Alterations will be free from defects, and
Landlord will have no liability therefor.
10. ENTRY BY LANDLORD. Landlord, its agents, contractors and representatives may
enter the Premises to inspect or show the Premises, to clean and make repairs,
alterations or additions to the Premises, and to conduct or facilitate repairs,
alterations or additions to any portion of the Building, including other
tenants' premises. Except in emergencies or to provide janitorial and other
Building services after Normal Business Hours, Landlord shall provide Tenant
with reasonable prior notice of entry into the Premises, which may be given
orally. Landlord shall have the right to temporarily close all or a portion of
the Premises to perform repairs, alterations and additions, if reasonably
necessary for the protection and safety of Tenant and its employees. Except in
emergencies, Landlord will not close the Premises if the work can be completed
on weekends and after Normal Business Hours; provided, however, that Landlord is
not required to conduct work on weekends or
17
after Normal Business Hours if such work can be conducted without closing the
Premises. Entry by Landlord for any such purposes shall not constitute a
constructive eviction or entitle Tenant to an abatement or reduction of Rent.
11. ASSIGNMENT AND SUBLETTING.
A. LANDLORD'S CONSENT REQUIRED. Subject to the remaining provisions of
this ARTICLE 11, but notwithstanding anything to the contrary contained
elsewhere in this Lease, Tenant shall not assign, transfer or encumber any
interest in this Lease (either absolutely or collaterally) or sublease or allow
any third party to use any portion of the Premises (collectively or
individually, a "TRANSFER") without the prior written consent of Landlord, which
consent shall not be unreasonably withheld. Without limitation, Tenant agrees
that Landlord's consent shall not be considered unreasonably withheld if: (1)
the proposed transferee's financial condition does not meet the criteria
Landlord uses to select Building tenants having similar leasehold obligations;
(2) the proposed transferee is a governmental organization or present occupant
of the Property, or Landlord is otherwise engaged in lease negotiations with the
proposed transferee for other premises in the Property (unless Landlord is
unable to accommodate such present occupant's need for additional space in the
Building of a size comparable to that portion of the Premises covered by the
proposed Transfer); (3) any uncured event of default exists under this Lease;
(4) any portion of the Building or Premises would likely become subject to
additional or different Laws as a consequence of the proposed Transfer; (5) the
proposed transferee's use of the Premises conflicts with the Permitted Use or
any exclusive usage rights granted to any other tenant in the Building; (6) the
use, nature, business, activities or reputation in the business community of the
proposed transferee (or its principals, employees or invitees) does not meet
Landlord's standards for Building tenants; (7) either the Transfer or any
consideration payable to Landlord in connection therewith adversely affects the
real estate investment trust qualification tests applicable to Landlord or its
Affiliates; or (8) the proposed transferee is or has been involved in litigation
with Landlord or any of its Affiliates. Tenant shall not be entitled to receive
monetary damages based upon a claim that Landlord unreasonably withheld its
consent to a proposed Transfer and Tenant's sole remedy shall be an action to
enforce any such provision through specific performance or declaratory judgment.
Any attempted Transfer in violation of this Article is voidable at Landlord's
option.
B. CONSENT PARAMETERS/REQUIREMENTS. As part of Tenant's request for, and
as a condition to, Landlord's consent to a Transfer, Tenant shall provide
Landlord with financial statements for the proposed transferee, a complete copy
(unexecuted) of the proposed assignment or sublease and other contractual
documents, and such other information as Landlord may reasonably request.
Landlord shall then have the right (but not the obligation) to terminate this
Lease as of the date the Transfer would have been effective ("LANDLORD
TERMINATION DATE") with respect to the portion of the Premises which Tenant
desires to Transfer. In such event, Tenant shall vacate such portion of the
Premises by the Landlord Termination Date and upon Tenant's vacating such
portion of the Premises, the rent and other charges payable shall be
proportionately reduced. Consent by Landlord to one or more Transfer(s) shall
not operate as a waiver of Landlord's rights to approve any subsequent
Transfers. In no event shall any Transfer or Permitted Transfer release or
relieve Tenant from any obligation under this Lease, nor shall the acceptance of
Rent from any assignee, subtenant or occupant constitute a waiver or release of
Tenant from any of its obligations or liabilities under this Lease. Tenant shall
pay Landlord a review fee equal to Landlord's actual reasonable costs and
18
expenses (including reasonable attorney's fees) incurred in connection with
Landlord's review of any Permitted Transfer or requested Transfer, not to exceed
$1000 in any one instance.
C. PAYMENT TO LANDLORD. If the aggregate consideration paid to a Tenant
Party for a Transfer exceeds that payable by Tenant under this Lease (prorated
according to the transferred interest), Tenant shall pay Landlord 50% of such
excess (after deducting therefrom reasonable leasing commissions, reasonable
attorney's fees and reasonable costs of tenant improvements paid to unaffiliated
third parties in connection with the Transfer, with proof of same provided to
Landlord). Tenant shall pay Landlord for Landlord's share of any excess within
30 days after Tenant's receipt of such excess consideration. If any uncured
event of default exists under this Lease (or a condition exists which, with the
passage of time or giving of notice, would become an event of default), Landlord
may require that all sublease payments be made directly to Landlord until the
event of default is cured or the condition no longer exists, in which case
Tenant shall receive a credit against Rent in the amount of any payments
received, but not to exceed the amount payable by Tenant under this Lease.
D. CHANGE IN CONTROL OF TENANT. Except for a Permitted Transfer, if Tenant
is a corporation, limited liability company, partnership, or similar entity, and
if the entity which owns or controls a majority of the voting shares/rights in
Tenant at any time sells or disposes of such majority of voting shares/rights,
or changes its identity for any reason (including a merger, consolidation or
reorganization), such change of ownership or control shall constitute a
Transfer. The foregoing shall not apply so long as, both before and after the
Transfer, Tenant is an entity whose outstanding stock is listed on a recognized
U.S. securities exchange, or if at least 80% of its voting stock is owned by
another entity, the voting stock of which is so listed; provided, however, that
Tenant shall give Landlord written notice at least 30 days prior to the
effective date of such change in ownership or control.
E. NO CONSENT REQUIRED. Tenant may assign its entire interest under this
Lease to its Affiliate (defined below) or to a successor to Tenant by purchase,
merger, consolidation or reorganization without the consent of Landlord,
provided that all of the following conditions are satisfied in Landlord's
reasonable discretion (a "PERMITTED TRANSFER"): (1) no uncured event of default
exists under this Lease; (2) Tenant's successor shall own all or substantially
all of the assets of Tenant; (3) such Affiliate or successor shall have a net
worth which is at least equal to the greater of Tenant's net worth at the date
of this Lease or Tenant's net worth as of the day prior to the proposed
purchase, merger, consolidation or reorganization; (4) no portion of the
Building or Premises would likely become subject to additional or different Laws
as a consequence of the proposed Transfer; (5) such Affiliate's or successor's
use of the Premises shall not conflict with the Permitted Use or any exclusive
usage rights granted to any other tenant in the Building; (6) neither the
Transfer nor any consideration payable to Landlord in connection therewith
adversely affects the real estate investment trust qualification tests
applicable to Landlord or its Affiliates; (7) such Affiliate or successor is not
and has not been involved in litigation with Landlord or any of Landlord's
Affiliates; and (8) Tenant shall give Landlord written notice at least 30 days
prior to the effective date of the proposed Transfer, along with all applicable
documentation and other information necessary for Landlord to determine that the
requirements of this SECTION 11.E have been satisfied, including if applicable,
the qualification of such proposed transferee as an Affiliate of Tenant. The
term "AFFILIATE" means any person or entity controlling, controlled by or under
common
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control with Tenant or Landlord, as applicable. If requested by Landlord, the
Affiliate or successor shall sign a commercially reasonable form of assumption
agreement in the event of an assignment.
12. LIENS. Tenant shall not permit mechanic's or other liens to be placed upon
the Property, Premises or Tenant's leasehold interest in connection with any
work or service done or purportedly done by or for the benefit of Tenant. If a
lien is so placed, Tenant shall, within 10 days of notice from Landlord of the
filing of the lien, fully discharge the lien by settling the claim which
resulted in the lien or by bonding or insuring over the lien in the manner
prescribed by the applicable lien Law. If Tenant fails to discharge the lien,
then, in addition to any other right or remedy of Landlord, Landlord may bond or
insure over the lien or otherwise discharge the lien. Tenant shall, within 30
days after receipt of an invoice from Landlord, reimburse Landlord for any
amount paid by Landlord, including reasonable attorneys' fees, to bond or insure
over the lien or discharge the lien.
13. INDEMNITY. Subject to ARTICLE 15 Tenant shall hold Landlord, its trustees,
Affiliates, subsidiaries, members, principals, beneficiaries, partners,
officers, directors, shareholders, employees, Mortgagee(s) (defined in ARTICLE
25) and agents (including the manager of the Property) (collectively, "LANDLORD
PARTIES") harmless from, and indemnify and defend such parties against, all
liabilities, obligations, damages, penalties, claims, actions, costs, charges
and expenses, including reasonable attorneys' fees and other professional fees
that may be imposed upon, incurred by or asserted against any of such
indemnified parties (each a "CLAIM" and collectively "CLAIMS") that arise out of
or in connection with any damage or injury occurring in the Premises. Provided
Landlord Parties are properly named as additional insureds in the policies
required to be carried under this Lease, and except as otherwise expressly
provided in this Lease, the indemnity set forth in the preceding sentence shall
be limited to $5,000,000. Subject to ARTICLES 9.B, 15 and 20, Landlord shall
hold Tenant, its trustees, members, principals, beneficiaries, partners,
officers, directors, shareholders, employees and agents (collectively, "TENANT
PARTIES") harmless from, and indemnify and defend such parties against, all
Claims that arise out of or in connection with any damage or injury occurring in
or on the Property (excluding the Premises), not to exceed the amount of
$5,000,000.
14. INSURANCE.
A. TENANT'S INSURANCE. Tenant shall maintain the following insurance
("TENANT'S INSURANCE"), at its sole cost and expense: (1) commercial general
liability insurance applicable to the Premises and its appurtenances providing,
on an occurrence basis, a per occurrence limit of no less than $1,000,000; (2)
causes of loss-special form (formerly "all risk") property insurance, covering
all above building standard leasehold improvements and Tenant's trade fixtures,
equipment, furniture and other personal property within the Premises ("TENANT'S
PROPERTY") in the amount of the full replacement cost thereof; (3) business
income (formerly "business interruption") insurance written on an actual loss
sustained form or with sufficient limits to address reasonably anticipated
business interruption losses; (4) business automobile liability insurance to
cover all owned, hired and nonowned automobiles owned or operated by Tenant
providing a minimum combined single limit of $1,000,000; (5) workers'
compensation insurance as required by the state in which the Premises is located
and in amounts as may be required by applicable statute (provided, however, if
no workers' compensation insurance is statutorily required, Tenant shall carry
workers' compensation insurance in a minimum amount of $500,000); (6) employer's
liability insurance in an
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amount of at least $500,000 per occurrence; and (7) umbrella liability insurance
that follows form in excess of the limits specified in (1), (4) and (6) above,
of no less than $4,000,000 per occurrence and in the aggregate. Any company
underwriting any of Tenant's Insurance shall have, according to A.M. Best
Insurance Guide, a Best's rating of not less than A- and a Financial Size
Category of not less than VIII. All commercial general liability, business
automobile liability and umbrella liability insurance policies shall name
Landlord (or any successor), Landlord's property manager, Landlord's Mortgagee
(if any), and their respective members, principals, beneficiaries, partners,
officers, directors, employees, and agents, and other designees of Landlord as
the interest of such designees shall appear, as "additional insureds" and shall
be primary with Landlord's policy being secondary and noncontributory. If any
aggregate limit is reduced because of losses paid to below 75% of the limit
required by this Lease, Tenant will notify Landlord in writing within 10 days of
the date of reduction. All policies of Tenant's Insurance shall contain
endorsements that the insurer(s) shall give Landlord and its designees at least
30 days' advance written notice of any change, cancellation, termination or
lapse of insurance. Tenant shall provide Landlord with a certificate of
insurance and all required endorsements evidencing Tenant's Insurance prior to
the earlier to occur of the Commencement Date or the date Tenant is provided
access to the Premises for any reason, and upon renewals at least 10 days prior
to the expiration of the insurance coverage. All of Tenant's Insurance policies,
endorsements and certificates will be on forms and with deductibles and
self-insured retention, if any, reasonably acceptable to Landlord. The limits of
Tenant's insurance shall not limit Tenant's liability under this Lease.
B. LANDLORD'S INSURANCE. Landlord shall maintain: (1) commercial general
liability insurance applicable to the Property which provides, on an occurrence
basis, a minimum combined single limit of no less than $5,000,000 (coverage in
excess of $1,000,000 may be provided by way of an umbrella/excess liability
policy); and (2) causes of loss-special form (formerly "all risk") property
insurance on the Building in the amount of the replacement cost thereof, as
reasonably estimated by Landlord. The foregoing insurance and any other
insurance carried by Landlord may be effected by a policy or policies of blanket
insurance and shall be for the sole benefit of Landlord and under Landlord's
sole control. Consequently, Tenant shall have no right or claim to any proceeds
thereof or any other rights thereunder.
15. MUTUAL WAIVER OF SUBROGATION. Notwithstanding anything in this Lease to the
contrary, Tenant waives, and shall cause its insurance carrier(s) and any other
party claiming through or under such carrier(s), by way of subrogation or
otherwise, to waive any and all rights of recovery, Claim, action or causes of
action against all Landlord Parties for any loss or damage to Tenant's business,
any loss of use of the Premises, and any loss, theft or damage to Tenant's
Property (including Tenant's automobiles or the contents thereof), INCLUDING ALL
RIGHTS (BY WAY OF SUBROGATION OR OTHERWISE) OF RECOVERY, CLAIMS, ACTIONS OR
CAUSES OF ACTION ARISING OUT OF THE NEGLIGENCE OF ANY LANDLORD PARTY, which loss
or damage is (or would have been, had the insurance required by this Lease been
maintained) covered by insurance. In addition, Landlord shall cause its
insurance carrier(s) and any other party claiming through or under such
carrier(s), by way of subrogation or otherwise, to waive any and all rights of
recovery, Claim, action or causes of action against all Tenant Parties for any
loss of or damage to or loss of use of the Building, any additions or
improvements to the Building, or any contents thereof, INCLUDING ALL RIGHTS (BY
WAY OF SUBROGATION OR OTHERWISE) OF RECOVERY, CLAIMS, ACTIONS OR CAUSES OF
ACTION
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ARISING OUT OF THE NEGLIGENCE OF ANY TENANT PARTY, which loss or damage is (or
would have been, had the insurance required by this Lease been maintained)
covered by insurance.
16. CASUALTY DAMAGE.
A. REPAIR OR TERMINATION BY LANDLORD. If all or any part of the Premises
are damaged by fire or other casualty, Tenant shall immediately notify Landlord
in writing. Landlord shall have the right to terminate this Lease if: (1) the
Building shall be damaged so that, in Landlord's judgment, substantial
alteration or reconstruction of the Building shall be required (whether or not
the Premises have been damaged); (2) Landlord is not permitted by Law to rebuild
the Building in substantially the same form as existed before the fire or
casualty; (3) the Premises have been materially damaged and there is less than 2
years of the Term remaining on the date of the casualty; (4) any Mortgagee
requires that the insurance proceeds be applied to the payment of the mortgage
debt; or (5) an uninsured loss of the Building occurs notwithstanding Landlord's
compliance with SECTION 14.B above. Landlord may exercise its right to terminate
this Lease by notifying Tenant in writing within 90 days after the date of the
casualty. If Landlord does not terminate this Lease under this SECTION 16.A,
Landlord shall commence and proceed with reasonable diligence to repair and
restore the Building and/or the Premises to substantially the same condition as
existed immediately prior to the date of damage; provided, however, that
Landlord shall only be required to reconstruct building standard leasehold
improvements existing in the Premises as of the date of damage, and Tenant shall
be required to pay the cost for restoring any other leasehold improvements.
However, in no event shall Landlord be required to spend more than the insurance
proceeds received by Landlord.
B. TIMING FOR REPAIR; TERMINATION BY EITHER PARTY. If all or any portion
of the Premises or Building is damaged as a result of fire or other casualty,
Landlord shall, with reasonable promptness, cause an architect or general
contractor selected by Landlord to provide Landlord and Tenant with a written
estimate of the amount of time required to substantially complete the repair and
restoration of the Premises or Building, using standard working methods
("COMPLETION ESTIMATE"). If the Completion Estimate indicates that the Premises
or Building cannot be made tenantable within 270 days from the date of damage,
then regardless of anything in SECTION 16.A above to the contrary, either party
shall have the right to terminate this Lease by giving written notice to the
other of such election within 10 days after receipt of the Completion Estimate.
Tenant, however, shall not have the right to terminate this Lease if the fire or
casualty was caused by the gross negligence or intentional misconduct of any of
the Tenant Parties. If neither party terminates this Lease under this SECTION
16.B, then Landlord shall repair and restore the Premises or Building in
accordance with, and subject to the limitations of, SECTION 16.A.
C. ABATEMENT. In the event a material portion of the Premises is damaged
as a result of a fire or other casualty, or access thereto is denied, the Base
Rent and Excess Operating Expenses shall abate for the portion of the Premises
that is damaged and not usable by Tenant until substantial completion of the
repairs and restoration required to be made by Landlord pursuant to SECTION
16.A. Tenant, however, shall not be entitled to such abatement if the fire or
other casualty was caused by the gross negligence or intentional misconduct of
any of the Tenant Parties. Landlord shall not be liable for any loss or damage
to Tenant's Property or to the business of Tenant resulting in any way from the
fire or other casualty or from the repair and restoration of the damage.
Landlord and
22
Tenant hereby waive the provisions of any Law relating to the matters addressed
in this Article, and agree that their respective rights for damage to or
destruction of the Premises shall be those specifically provided in this Lease.
17. CONDEMNATION. Either party may terminate this Lease if the whole or any
material part of the Premises are taken or condemned for any public or
quasi-public use under Law, by eminent domain or private purchase in lieu
thereof (a "TAKING"). Landlord shall also have the right to terminate this Lease
if there is a Taking of any portion of the Building or Property which would
leave the remainder of the Building unsuitable for use as an office building in
a manner comparable to the Building's use prior to the Taking. In order to
exercise its right to terminate this Lease under this ARTICLE 17, Landlord or
Tenant, as the case may be, must provide written notice of termination to the
other within 45 days after the terminating party first receives notice of the
Taking. Any such termination shall be effective as of the date the physical
taking of the Premises or the portion of the Building or Property occurs. If
this Lease is not terminated, the Rentable Square Footage of the Building, the
Rentable Square Footage of the Premises and Tenant's Pro Rata Share shall, if
applicable, be appropriately adjusted by Landlord. In addition, Base Rent for
any portion of the Premises taken or condemned shall be abated during the
unexpired Term effective when the physical taking of the portion of the Premises
occurs. All compensation awarded for a Taking, or sale proceeds, shall be the
property of Landlord, any right to receive compensation or proceeds being
expressly waived by Tenant. However, Tenant may file a separate claim at its
sole cost and expense for Tenant's Property (excluding above building standard
leasehold improvements) and Tenant's reasonable relocation expenses, provided
the filing of such claim does not diminish the award which would otherwise be
receivable by Landlord.
18. EVENTS OF DEFAULT. Tenant shall be considered to be in default under this
Lease upon the occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the Rent
("MONETARY DEFAULT"); provided that the first such failure during any
consecutive 12 month period shall not be a Monetary Default if Tenant pays the
amount due within 5 days after written notice from Landlord.
B. Tenant's failure to perform any of the obligations of Tenant in the
manner set forth in ARTICLES 14, 23, 24 or 25 (a "TIME SENSITIVE DEFAULT").
C. Tenant's failure (other than a Monetary Default or a Time Sensitive
Default) to comply with any term, provision or covenant of this Lease, if the
failure is not cured within 10 days after written notice to Tenant. However, if
Tenant's failure to comply cannot reasonably be cured within 10 days, Tenant
shall be allowed additional time (not to exceed an additional 30 days) as is
reasonably necessary to cure the failure so long as: (1) Tenant commences to
cure the failure within the 10 day period following Landlord's initial written
notice, and (2) Tenant diligently pursues a course of action that will cure the
failure and bring Tenant back into compliance with this Lease. However, if
Tenant's failure to comply creates a hazardous condition, the failure must be
cured immediately upon notice to Tenant. In addition, if Landlord provides
Tenant with notice of Tenant's failure to comply with the same specific term,
provision or covenant of this Lease on more than two (2) occasions during any 12
month period, Tenant's subsequent violation of the same term, provision or
covenant shall, at Landlord's option, be deemed an incurable event of default by
Tenant.
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D. Tenant or any Guarantor becomes insolvent, files a petition for
protection under the U.S. Bankruptcy Code (or similar Law) or a petition is
filed against Tenant or any Guarantor under such Laws and is not dismissed
within 45 days after the date of such filing, makes a transfer in fraud of
creditors or makes an assignment for the benefit of creditors, or admits in
writing its inability to pay its debts when due.
E. The leasehold estate is taken by process or operation of Law.
F. In the case of any ground floor or retail tenant, or any other tenant
whose space is visible from the Common Areas or elevator lobby areas of the
Building, Tenant does not take possession of, or abandons or vacates all or a
substantial portion of the Premises; provided, however that so long as Tenant
keeps the Premises neat and orderly (including, without limitation, keeping the
Premises free of trash and boxes and the window coverings closed so that the
vacant space is not visible), it shall not be an event of default if Tenant
abandons or vacates all or a substantial portion of the Premises.
G. Tenant is in default beyond any notice and cure period under any other
lease or agreement with Landlord in connection with the Property, including any
lease or agreement for parking.
19. REMEDIES.
A. LANDLORD'S REMEDIES. Upon any default, Landlord shall have the right
without notice or demand (except as provided in ARTICLE 18) to pursue any of its
rights and remedies at Law or in equity, including any one or more of the
following remedies:
(1) Terminate this Lease;
(2) To the fullest extent permitted by applicable Law, re-enter the
Premises, change locks, alter security devices and lock out Tenant or terminate
Tenant's right of possession of the Premises without terminating this Lease and,
in connection with the foregoing, to the fullest extent permitted by applicable
Law, Tenant waives the benefits of any rights (statutory, common law or
otherwise) which would impede, hinder or otherwise impair Landlord's ability to
exercise the foregoing rights;
(3) Remove and store, at Tenant's expense, all the property in the
Premises using such lawful force as may be necessary;
(4) Cure such event of default for Tenant at Tenant's expense (plus
a 15% administrative fee);
(5) Withhold or suspend payment of sums Landlord would otherwise be
obligated to pay to Tenant under this Lease or any other agreement;
(6) Require all future payments to be made by cashier's check, money
order or wire transfer after the first time any check is returned for
insufficient funds, or the second time any sum due hereunder is more than five
(5) days late;
24
(7) Apply any Security Deposit as permitted under this Lease; and/or
(8) Recover such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time by applicable Law, including any
other amount necessary to compensate Landlord for all the detriment proximately
caused by Tenant's failure to perform its obligations under this Lease or which
in the ordinary course of events would be likely to result therefrom.
B. MEASURE OF DAMAGES.
(1) Calculation. If Landlord either terminates this Lease or
terminates Tenant's right to possession of the Premises, Tenant shall
immediately surrender and vacate the Premises and pay Landlord on demand: (a)
all Rent accrued through the end of the month in which the termination becomes
effective; (b) interest on all unpaid Rent from the date due at a rate equal to
the lesser of 18% per annum or the highest interest rate permitted by applicable
Law; (c) all expenses reasonably incurred by Landlord in enforcing its rights
and remedies under this Lease, including all reasonable legal expenses; (d)
Costs of Reletting (defined below); and (e) all Landlord's Rental Damages
(defined below). In the event that Landlord relets the Premises for an amount
greater than the Rent due during the Term, Tenant shall not receive a credit for
any such excess.
(2) Definitions. "COSTS OF RELETTING" shall include commercially
reasonable costs, losses and expenses incurred by Landlord in reletting all or
any portion of the Premises including, without limitation, the cost of removing
and storing Tenant's furniture, trade fixtures, equipment, inventory or other
property, repairing and/or demolishing the Premises, removing and/or replacing
Tenant's signage and other fixtures, making the Premises ready for a new tenant,
including the cost of advertising, commissions, architectural fees, legal fees
and leasehold improvements, and any allowances and/or concessions provided by
Landlord. "LANDLORD'S RENTAL DAMAGES" shall mean the total Rent which Landlord
would have received under this Lease (had Tenant made all such Lease payments as
required) for the remainder of the Term minus the fair rental value of the
Premises for the same period, or, if the Premises are relet, the actual rental
value (not to exceed the Rent due during the Term), both discounted to present
value at the Prime Rate (defined below) in effect upon the date of
determination. For purposes hereof, the "PRIME RATE" shall be the per annum
interest rate publicly announced by a federally insured bank selected by
Landlord in the state in which the Building is located as such bank's prime or
base rate.
(3) Landlord's Alternative Calculation. Because future market rental
rates, and the costs or time involved in reletting may be uncertain and
difficult to determine at the time of Tenant's default, the parties agree that
Landlord may in its sole discretion elect to recover, in lieu of calculating
damages under SECTION 19.B(1)(D) and (E) above (but without limiting damages
under SECTION 19.B(1)(A) and (B) above), the sum of (a) the unamortized portion
of all costs, losses and expenses incurred by Landlord as a result of entering
into the Lease, and (b) twenty five percent (25%) of the total nominal Rent
which Landlord would have received under this Lease (had Tenant made all such
Rent payments as required) for the remainder of the Term, which the parties
agree is a fair and reasonable estimate of Landlord's Rental Damages and the
Costs of Reletting.
C. TENANT NOT RELIEVED FROM LIABILITIES. Unless expressly provided in this
Lease, the repossession or re-entering of all or any part of the Premises or
Landlord's exercise of any other
25
remedy either as provided herein or otherwise, shall not relieve Tenant of its
liabilities and obligations under this Lease including, without limitation,
Tenant's liability for the payment of Rent or any other damages Landlord may
incur by reason of Tenant's breach. In addition, Tenant shall not be relieved of
its liabilities under this Lease, nor be entitled to any damages hereunder,
based upon minor or immaterial errors in the exercise of Landlord's remedies. No
right or remedy of Landlord shall be exclusive of any other right or remedy.
Each right and remedy shall be cumulative and in addition to any other right and
remedy now or subsequently available to Landlord at Law or in equity. If Tenant
fails to pay any amount when due hereunder (after the expiration of any
applicable cure period), Landlord shall be entitled to receive interest on any
unpaid item of Rent from the date initially due (without regard to any
applicable grace period) at a rate equal to the lesser of 12% per annum or the
highest rate permitted by Law. In addition, if Tenant fails to pay any item or
installment of Rent when due (after the expiration of any applicable cure
period), Tenant shall pay Landlord an administrative fee equal to 5% of the past
due Rent. However, Landlord waives its right to impose a late charge against
Tenant for the first time Tenant fails to pay any amount within 5 days after
becoming due under this Lease. However, in no event shall the charges permitted
under this SECTION 19.C or elsewhere in this Lease, to the extent they are
considered interest under applicable Law, exceed the maximum lawful rate of
interest. If any payment by Tenant of an amount deemed to be interest results in
Tenant having paid any interest in excess of that permitted by Law, then it is
the express intent of Landlord and Tenant that all such excess amounts
theretofore collected by Landlord be credited against the other amounts owing by
Tenant under this Lease. Receipt by Landlord of Tenant's keys to the Premises
shall not constitute an acceptance or surrender of the Premises. NOTWITHSTANDING
ANY OTHER PROVISION OF THIS LEASE TO THE CONTRARY, TENANT SHALL HOLD LANDLORD
PARTIES HARMLESS FROM AND INDEMNIFY AND DEFEND SUCH PARTIES AGAINST, ALL CLAIMS
THAT ARISE OUT OF OR IN CONNECTION WITH A BREACH OF THIS LEASE BY TENANT,
SPECIFICALLY INCLUDING ANY VIOLATION OF APPLICABLE LAWS OR CONTAMINATION
(DEFINED IN ARTICLE 30) CAUSED BY A TENANT PARTY.
D. MITIGATION OF DAMAGES. Upon termination of Tenant's right to possess
the Premises, Landlord shall, only to the extent required by Law, use
objectively reasonable efforts to mitigate damages by reletting the Premises.
Landlord shall not be deemed to have failed to do so if Landlord refuses to
lease the Premises to a prospective new tenant with respect to whom Landlord
would be entitled to withhold its consent pursuant to SECTION 11.A, or who (1)
is an Affiliate, parent or subsidiary of Tenant; (2) is not acceptable to any
Mortgagee of Landlord; (3) requires improvements to the Premises to be made at
Landlord's expense; or (4) is unwilling to accept lease terms then proposed by
Landlord, including: (a) leasing for a shorter or longer term than remains under
this Lease; (b) re-configuring or combining the Premises with other space, (c)
taking all or only a part of the Premises; and/or (d) changing the use of the
Premises. Notwithstanding Landlord's duty to mitigate its damages as provided
herein, Landlord shall not be obligated (i) to give any priority to reletting
Tenant's space in connection with its leasing of space in the Building or any
complex of which the Building is a part, or (ii) to accept below market rental
rates for the Premises or any rate that would negatively impact the market rates
for the Building. To the extent that Landlord is required by applicable Law to
mitigate damages, Tenant must plead and prove by clear and convincing evidence
that Landlord failed to so mitigate in accordance with the provisions of this
SECTION 19.D, and that such failure resulted in an avoidable and quantifiable
detriment to Tenant.
26
E. LANDLORD'S LIEN. To secure Tenant's obligations under this Lease,
Tenant grants Landlord a contractual security interest on all of Tenant's
inventory, goods, consumer goods and equipment now or hereafter situated in the
Premises and all proceeds therefrom, including insurance proceeds (collectively,
"COLLATERAL"). No Collateral shall be removed from the Premises without
Landlord's prior written consent until all of Tenant's obligations are fully
satisfied (except in the ordinary course of business and then only if replaced
with items of same or greater value and quality). Upon any event of default,
Landlord may, to the fullest extent permitted by Law and in addition to any
other remedies provided herein, enter upon the Premises and take possession of
any Collateral without being held liable for trespass or conversion, and sell
the same at public or private sale, after giving Tenant at least 10 days written
notice (or more if required by Law) of the time and place of such sale. Such
notice may be sent with or without return receipt requested. Unless prohibited
by Law, any Landlord Party may purchase any Collateral at such sale. Subject to
applicable Law, the proceeds from such sale, less Landlord's expenses, including
reasonable attorneys' fees and other expenses, shall be credited against
Tenant's obligations. Any surplus shall be paid to Tenant (or as otherwise
required by Law) and any deficiency shall be paid by Tenant to Landlord upon
demand. Tenant hereby authorizes Landlord to file a financing statement
sufficient to perfect the foregoing security interest, or to file a copy of this
Lease as a financing statement, as permitted under Law. Landlord agrees to
subordinate its foregoing contractual lien rights to a third party providing
furniture, fixtures and/or equipment for Tenant's use in the Premises during the
Term (or providing funds for the acquisition of same), provided that (i) there
is no uncured event of default by Tenant under the Lease at the time of such
subordination; (ii) such subordination shall be limited to the specified items,
amount and time stated in the subordinating instrument; and (iii) such
subordination shall be in writing, signed by all parties and in a form
acceptable to Landlord. Notwithstanding anything to the contrary contained in
this subparagraph, effective as of the second anniversary date of the
Commencement Date, this Landlord's lien shall be automatically terminated (and,
upon Tenant's written request, Landlord will file any necessary releases to the
extent Landlord has filed any financing statements in connection herewith),
provided that prior to such date, no uncured event of default shall have
occurred hereunder.
20. LIMITATION OF LIABILITY. Notwithstanding anything to the contrary contained
in this Lease, the liability of Landlord (and of any successor Landlord) to
Tenant (or any person or entity claiming by, through or under Tenant) shall be
limited to the interest of Landlord in the Property. Tenant shall look solely to
Landlord's interest in the Property for the recovery of any judgment or award
against Landlord. No Landlord Party shall be personally liable for any judgment
or deficiency. Before filing suit for an alleged default by Landlord, Tenant
shall give Landlord and the Mortgagee(s) (defined in ARTICLE 25) whom Tenant has
been notified hold Mortgages (defined in ARTICLE 25) on the Property, Building
or Premises, notice and reasonable time to cure the alleged default. Tenant
hereby waives all claims against all Landlord Parties for consequential, special
or punitive damages allegedly suffered by any Tenant Parties, including lost
profits and business interruption.
21. NO WAIVER. Neither party's failure to declare a default immediately upon its
occurrence or delay in taking action for a default shall constitute a waiver of
the default, nor shall it constitute an estoppel. Neither party's failure to
enforce its rights for a default shall constitute a waiver of that party's
rights regarding any subsequent default.
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22. TENANT'S RIGHT TO POSSESSION. Provided Tenant pays the Rent and fully
performs all of its other covenants and agreements under this Lease, Tenant
shall have the right to occupy the Premises without hindrance from Landlord or
any person lawfully claiming through Landlord, subject to the terms of this
Lease, all Mortgages, insurance requirements and applicable Law. This covenant
and all other covenants of Landlord shall be binding upon Landlord and its
successors only during its or their respective periods of ownership of the
Building, and shall not be a personal covenant of any Landlord Parties.
23. RELOCATION. Landlord may, upon 60 days notice to Tenant, relocate the
Premises (but only as to such portion on any floor wherein Tenant occupies less
than 5,500 Rentable Square Feet of such floor, and in such instance, only in the
event that Landlord has a need for such space to accommodate another tenant or
prospective tenant which will occupy in excess of 5,500 Rentable Square Feet in
the Building) to any other premises within the Property ("RELOCATED PREMISES")
on a date of relocation (the "RELOCATION DATE") specified therein. The Relocated
Premises shall in all respects be substantially the same or better, as
reasonably determined by Landlord, in area, finish, and appropriateness for the
Permitted Use. In such event, all reasonable expenses of moving Tenant and
decorating the Relocated Premises with substantially the same leasehold
improvements shall be at the expense of Landlord, including the physical move,
relocating Tenant's existing telephone equipment and other costs set forth
below. All moving costs (including the cost to relocate phones, computers and
other systems of similar nature), all costs of reprinting stationery, cards and
other printed material bearing Tenant's address at the Premises if such address
changes due to the relocation (but only the quantity existing immediately prior
to the relocation) and all other out-of-pocket costs directly incurred by Tenant
in connection with relocation to the Relocated Premises, including reasonable
decorating and design costs, shall be paid by Landlord within thirty (30) days
after receipt of third-party invoices therefor. Tenant shall have the option,
effective as of the Relocation Date, either to enter into an appropriate lease
amendment relocating the Premises, or to terminate this Lease, which option
shall be exercised within 10 Business Days following receipt of Landlord's
relocation notice. Failure of Tenant to choose either option within such period
shall constitute Tenant's election to relocate. If Tenant elects (or is deemed
to have elected) to relocate, Landlord shall have the option to tender the
Relocated Premises to Tenant on any date within a 30 day period prior to or
after the Relocation Date, in which event the date of tender of possession of
the Relocated Premises shall become the Relocation Date. From the Relocation
Date through the Expiration Date, the aggregate Base Rent for the Relocated
Premises shall be the same as for the original Premises. Tenant's failure to
vacate the Premises and move into the Relocated Premises on the Relocation Date
shall constitute a Time Sensitive Default.
24. HOLDING OVER. Except for any permitted occupancy by Tenant under ARTICLE 29,
if Tenant or any party claiming by, through or under Tenant fails to surrender
the Premises at the expiration or earlier termination of this Lease, the
continued occupancy of the Premises shall be that of a tenancy at sufferance.
Tenant shall pay an amount (on a per month basis without reduction for partial
months during the holdover) equal to 150% of the Base Rent and Tenant's Pro Rata
Share of Operating Expenses for the first ninety (90) days following expiration
or termination, and 200% of the Base Rent and Tenant's Pro Rata Share of
Operating Expenses thereafter. Tenant shall otherwise continue to be subject to
all of Tenant's obligations under this Lease. No holdover by Tenant or payment
by Tenant after the expiration or early termination of this Lease shall be
construed to extend the Term or prevent Landlord from immediate recovery of
possession of the Premises by
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summary proceedings or otherwise. In addition to the payment of the amounts
provided above, if Landlord is unable to deliver possession of the Premises to a
new tenant, or to perform improvements for a new tenant, as a result of Tenant's
holdover and Tenant fails to vacate the Premises within 15 days after Landlord
notifies Tenant of Landlord's inability to deliver possession, or perform
improvements, such failure shall constitute a Time Sensitive Default hereunder;
and notwithstanding any other provision of this Lease to the contrary, TENANT
SHALL BE LIABLE TO LANDLORD FOR, AND SHALL PROTECT LANDLORD FROM AND INDEMNIFY
AND DEFEND LANDLORD AGAINST, ALL LOSSES AND DAMAGES, INCLUDING ANY CLAIMS MADE
BY ANY SUCCEEDING TENANT RESULTING FROM SUCH FAILURE TO VACATE, AND ANY
CONSEQUENTIAL DAMAGES THAT LANDLORD SUFFERS FROM THE HOLDOVER.
25. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE. Tenant accepts this Lease
subject and subordinate to any mortgage(s), deed(s) of trust, ground lease(s) or
other lien(s) now or subsequently affecting the Premises, the Building or the
Property, and to renewals, modifications, refinancings and extensions thereof
(collectively, a "MORTGAGE"). The party having the benefit of a Mortgage shall
be referred to as a "MORTGAGEE." This clause shall be self-operative, but upon
request from a Mortgagee, Tenant shall execute a commercially reasonable
subordination agreement in favor of the Mortgagee. In lieu of having the
Mortgage be superior to this Lease, a Mortgagee shall have the right at any time
to subordinate its Mortgage to this Lease. If requested by a
successor-in-interest to all or a part of Landlord's interest in this Lease,
Tenant shall, without charge, attorn to the successor-in-interest. Tenant shall,
within 10 days after receipt of a written request from Landlord, execute and
deliver an estoppel certificate to those parties as are reasonably requested by
Landlord (including a Mortgagee or prospective purchaser). The estoppel
certificate shall include a statement certifying that this Lease is unmodified
(except as identified in the estoppel certificate) and in full force and effect,
describing the dates to which Rent and other charges have been paid,
representing that, to the best of Tenant's knowledge, there is no default (or
stating with specificity the nature of the alleged default) and certifying other
matters with respect to this Lease that may reasonably be requested. Tenant's
failure to provide any estoppel certificate within the 10 day period specified
above, and the continuation of such failure for a period of 5 days after
Landlord delivers a second written notice requesting same, shall constitute a
Time Sensitive Default under this Lease. If at any time during the Term Tenant
occupies any area in the Building such that the total Rentable Square Footage of
the Premises is equal to or greater than 150% of the area of the Premises as of
the Effective Date, at any time thereafter and upon written request from Tenant,
Landlord shall use reasonable efforts, at Tenant's costs, to obtain Landlord's
Mortgagee's then-current form of nondisturbance agreement for the benefit of
Tenant.
26. ATTORNEYS' FEES. If either party institutes a suit against the other for
violation of or to enforce any covenant or condition of this Lease, or if either
party intervenes in any suit in which the other is a party to enforce or protect
its interest or rights, the prevailing party shall be entitled to all of its
costs and expenses, including reasonable attorneys' fees.
27. NOTICE. If a demand, request, approval, consent or notice (collectively, a
"NOTICE") shall or may be given to either party by the other, the notice shall
be in writing and delivered by hand or sent by registered or certified mail with
return receipt requested, or sent by overnight or same day courier service, or
sent by facsimile, at the party's respective Notice Address(es) set forth in
ARTICLE 1, except that if Tenant has vacated the Premises (or if the Notice
Address for Tenant is other than the
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Premises, and Tenant has vacated such address) without providing Landlord a new
Notice Address, Landlord may serve notice in any manner described in this
Article or in any other manner permitted by Law. Each notice shall be deemed to
have been received or given on the earlier to occur of actual delivery (which,
in the case of delivery by facsimile, shall be deemed to occur at the time of
delivery indicated on the electronic confirmation of the facsimile) or the date
on which delivery is first refused, or, if Tenant has vacated the Premises or
the other Notice Address of Tenant without providing a new Notice Address, three
(3) days after notice is deposited in the U.S. mail or with a courier service in
the manner described above. Either party may, at any time, change its Notice
Address by giving the other party written notice of the new address in the
manner described in this Article.
28. RESERVED RIGHTS. This Lease does not grant any rights to light or air over
or about the Building. Landlord excepts and reserves exclusively to itself the
use of: (A) roofs, (B) telephone, electrical and janitorial closets, (C)
equipment rooms, Building risers or similar areas that are used by Landlord for
the provision of Building services, (D) rights to the land and improvements
below the floor of the Premises, (E) the improvements and air rights above the
Premises, (F) the improvements and air rights outside the demising walls of the
Premises, (G) the areas within the Premises used for the installation of utility
lines and other installations serving occupants of the Building, and (H) any
other areas designated from time to time by Landlord as service areas of the
Building. Tenant shall not have the right to install or operate any equipment
producing radio frequencies, electrical or electromagnetic output or other
signals, noise or emissions in or from the Building without the prior written
consent of Landlord, which consent shall not be unreasonably withheld, provided
that Tenant signs Landlord's then-current form of telecom agreement. To the
extent permitted by applicable Law, Landlord reserves the right to restrict and
control the use of such equipment. Landlord has the right to change the
Building's name or address. Landlord also has the right to make such other
changes to the Property and Building as Landlord deems appropriate, provided the
changes do not materially affect Tenant's ability to use the Premises for the
Permitted Use. Landlord shall also have the right (but not the obligation) to
temporarily close the Building if Landlord reasonably determines that there is
an imminent danger of significant damage to the Building or of personal injury
to Landlord's employees or the occupants of the Building. The circumstances
under which Landlord may temporarily close the Building shall include, without
limitation, electrical interruptions, hurricanes and civil disturbances. A
closure of the Building under such circumstances shall not constitute a
constructive eviction nor entitle Tenant to an abatement or reduction of Rent.
29. SURRENDER OF PREMISES. All improvements to the Premises (collectively,
"LEASEHOLD IMPROVEMENTS") shall be owned by Landlord and shall remain upon the
Premises without compensation to Tenant. At the expiration or earlier
termination of this Lease or Tenant's right of possession, Tenant shall remove
Tenant's Removable Property (defined below) from the Premises, and quit and
surrender the Premises to Landlord, broom clean, and in good order, condition
and repair, ordinary wear and tear excepted. As used herein, the term "TENANT'S
REMOVABLE PROPERTY" shall mean: (A) Cable installed by or for the benefit of
Tenant and located in the Premises or other portions of the Building; (B) any
Leasehold Improvements that are installed by or for the benefit of Tenant and,
in Landlord's reasonable judgment, are of a nature that would require removal
and repair costs that are materially in excess of the removal and repair costs
associated with standard office improvements ("SPECIAL INSTALLATIONS"); and (C)
Tenant's personal property. Notwithstanding
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the foregoing, Landlord may, in Landlord's sole discretion and at no cost to
Landlord, require Tenant to leave any of its Special Installations in the
Premises. Notwithstanding any provisions contained in this Lease to the
contrary, Landlord shall have the right to require Tenant to remove, at Tenant's
expense, upon the expiration or earlier termination of the Term, any Special
Installations made or installed by Tenant or at Tenant's expense in the Premises
if, and only if, Landlord notifies Tenant to such effect in writing at the time
of Landlord's approval of the installation of such Special Installations. If
Tenant fails to remove any of Tenant's Removable Property (other than Special
Installations which Landlord has designated to remain in the Premises) within 2
days after the termination of this Lease or of Tenant's right to possession,
Landlord, at Tenant's sole cost and expense, shall be entitled (but not
obligated) to remove and store Tenant's Removable Property. Landlord shall not
be responsible for the value, preservation or safekeeping of Tenant's Removable
Property. Tenant shall pay Landlord, upon demand, the expenses and storage
charges incurred for Tenant's Removable Property. To the fullest extent
permitted by applicable Law, any unused portion of Tenant's Security Deposit may
be applied to offset Landlord's costs set forth in the preceding sentence. In
addition, if Tenant fails to remove Tenant's Removable Property from the
Premises or storage, as the case may be, within 30 days after written notice,
Landlord may deem all or any part of Tenant's Removable Property to be
abandoned, and title to Tenant's Removable Property (except with respect to any
Hazardous Material [defined in ARTICLE 30]) shall be deemed to be immediately
vested in Landlord. Except for Special Installations designated by Landlord to
remain in the Premises, Tenant's Removable Property shall be removed by Tenant
before the Expiration Date; provided that upon Landlord's prior written consent
(which must be requested by Tenant at least 30 days in advance of the Expiration
Date and which shall not be unreasonably withheld), Tenant may remain in the
Premises for up to 5 days after the Expiration Date for the sole purpose of
removing Tenant's Removable Property. Tenant's possession of the Premises for
such purpose shall be subject to all of the terms and conditions of this Lease,
including the obligation to pay Base Rent and Tenant's Pro Rata Share of Excess
Operating Expenses on a per diem basis at the rate in effect for the last month
of the Term. In the event this Lease is terminated prior to the Expiration Date,
Tenant's Removable Property (except for Special Installations designated by
Landlord to remain in the Premises) shall be removed by Tenant on or before such
earlier date of termination. Tenant shall repair damage caused by the
installation or removal of Tenant's Removable Property.
30. HAZARDOUS MATERIALS.
A. RESTRICTIONS. No Hazardous Material (defined below) (except for de
minimis quantities of household cleaning products and office supplies used in
the ordinary course of Tenant's business at the Premises and that are used, kept
and disposed of in compliance with Laws) shall be brought upon, used, kept or
disposed of in or about the Premises or the Property by any Tenant Parties or
any of Tenant's transferees, contractors or licensees without Landlord's prior
written consent, which consent may be withheld in Landlord's sole and absolute
discretion. Tenant's request for such consent shall include a representation and
warranty by Tenant that the Hazardous Material in question (1) is necessary in
the ordinary course of Tenant's business, and (2) shall be used, kept and
disposed of in compliance with all Laws.
B. REMEDIATION. Tenant shall, at its expense, monitor the Premises for the
presence of Hazardous Materials or conditions which may reasonably give rise to
Contamination (defined
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below) and promptly notify Landlord if it suspects Contamination in the
Premises. Landlord will remediate Contamination caused by a Tenant Party or its
contractors or invitees and Tenant shall reimburse Landlord for the cost
thereof, plus a 15% administrative fee.
C. DEFINITIONS. For purposes of this ARTICLE 30, a "HAZARDOUS MATERIAL" is
any substance (1) the presence of which requires, or may hereafter require,
notification, investigation or remediation under any Laws or which is now or
hereafter defined, listed or regulated by any governmental authority as a
"hazardous waste", "extremely hazardous waste", "solid waste", "toxic
substance", "hazardous substance", "hazardous material" or "regulated
substance", or otherwise regulated under any Laws. "CONTAMINATION" means the
existence or any release or disposal of a Hazardous Material or biological or
organic contaminant, including any such contaminant which could adversely impact
air quality, such as mold, fungi or other bacterial agents in, on, under, at or
from the Premises, the Building or the Property which may result in any
liability, fine, use restriction, cost recovery lien, remediation requirement,
or other government or private party action or imposition affecting any Landlord
Party. For purposes of this Lease, claims arising from Contamination shall
include diminution in value, restrictions on use, adverse impact on leasing
space, and all costs of site investigation, remediation, removal and restoration
work, including response costs under CERCLA and similar statutes.
D. REPORTS, SURVEYS AND ACCEPTANCE OF PREMISES. All current surveys or
reports prepared for the Property regarding the presence of Hazardous Materials
(if any) in the Building are available for inspection by Tenant in the office of
the Property manager. With respect to Hazardous Materials, Tenant hereby (1)
accepts full responsibility for reviewing any such surveys and reports and
satisfying itself prior to the execution of this Lease as to the acceptability
of the Premises under SECTION 3.B above, and (2) acknowledges and agrees that
this provision satisfies all notice requirements under applicable Law. In the
event Tenant performs or causes to be performed any test on or within the
Premises for the purpose of determining the presence of a Hazardous Material,
Tenant shall obtain Landlord's prior written consent and use a vendor approved
by Landlord for such testing. In addition, Tenant shall provide to Landlord a
copy of such test within 10 days of Tenant's receipt.
31. MISCELLANEOUS.
A. GOVERNING LAW; JURISDICTION AND VENUE; SEVERABILITY; PARAGRAPH
HEADINGS. This Lease and the rights and obligations of the parties shall be
interpreted, construed and enforced in accordance with the Laws of the state in
which the Property is located. All obligations under this Lease are performable
in the county or other jurisdiction where the Property is located, which shall
be venue for all legal actions. If any term or provision of this Lease shall be
invalid or unenforceable, then such term or provision shall be automatically
reformed to the extent necessary to render such term or provision enforceable,
without the necessity of execution of any amendment or new document. The
remainder of this Lease shall not be affected, and each remaining and reformed
provision of this Lease shall be valid and enforced to the fullest extent
permitted by Law. The headings and titles to the Articles and Sections of this
Lease are for convenience only and shall have no effect on the interpretation of
any part of this Lease. The words "include", "including" and similar words will
not be construed restrictively to limit or exclude other items not listed.
32
B. RECORDING. Tenant shall not record this Lease or any memorandum without
Landlord's prior written consent.
C. FORCE MAJEURE. Whenever a period of time is prescribed for the taking
of an action by Landlord or Tenant, the period of time for the performance of
such action shall be extended by the number of days that the performance is
actually delayed due to strikes, acts of God, shortages of labor or materials,
war, terrorist attacks (including bio-chemical attacks), civil disturbances and
other causes beyond the reasonable control of the performing party ("FORCE
MAJEURE"). However, events of Force Majeure shall not extend any period of time
for the payment of Rent or other sums payable by either party or any period of
time for the written exercise of an option or right by either party.
D. TRANSFERABILITY; RELEASE OF LANDLORD. Landlord shall have the right to
transfer and assign, in whole or in part, all of its rights and obligations
under this Lease and in the Building and/or Property, and upon such transfer
Landlord shall be released from any further obligations hereunder, and Tenant
agrees to look solely to the successor in interest of Landlord for the
performance of such obligations.
E. BROKERS. Tenant represents that it has dealt directly with and only
with Jones Lang LaSalle (whose commission shall be paid by Landlord pursuant to
a separate written agreement) in connection with this Lease. TENANT AND LANDLORD
SHALL EACH INDEMNIFY THE OTHER AGAINST ALL COSTS, EXPENSES, ATTORNEYS' FEES,
LIENS AND OTHER LIABILITY FOR COMMISSIONS OR OTHER COMPENSATION CLAIMED BY ANY
BROKER OR AGENT CLAIMING THE SAME BY, THROUGH OR UNDER THE INDEMNIFYING PARTY,
OTHER THAN THE BROKER(S) SPECIFICALLY IDENTIFIED ABOVE.
F. AUTHORITY; JOINT AND SEVERAL LIABILITY. Landlord covenants, warrants
and represents that each individual executing, attesting and/or delivering this
Lease on behalf of Landlord is authorized to do so on behalf of Landlord, this
Lease is binding upon and enforceable against Landlord, and Landlord is duly
organized and legally existing in the state of its organization and is qualified
to do business in the state in which the Premises are located. Similarly, Tenant
covenants, warrants and represents that each individual executing, attesting
and/or delivering this Lease on behalf of Tenant is authorized to do so on
behalf of Tenant, this Lease is binding upon and enforceable against Tenant; and
Tenant is duly organized and legally existing in the state of its organization
and is qualified to do business in the state in which the Premises are located.
If there is more than one Tenant, or if Tenant is comprised of more than one
party or entity, the obligations imposed upon Tenant shall be joint and several
obligations of all the parties and entities. Notices, payments and agreements
given or made by, with or to any one person or entity shall be deemed to have
been given or made by, with and to all of them.
G. TIME IS OF THE ESSENCE; RELATIONSHIP; SUCCESSORS AND ASSIGNS. Time is
of the essence with respect to Tenant's performance of its obligations and the
exercise of any expansion, renewal or extension rights or other options granted
to Tenant. This Lease shall create only the relationship of landlord and tenant
between the parties, and not a partnership, joint venture or any other
relationship. This Lease and the covenants and conditions in this Lease shall
inure only to the benefit of and be binding only upon Landlord and Tenant and
their permitted successors and assigns.
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H. SURVIVAL OF OBLIGATIONS. The expiration of the Term, whether by lapse
of time or otherwise, shall not relieve either party of any obligations which
accrued prior to or which may continue to accrue after the expiration or early
termination of this Lease. Without limiting the scope of the prior sentence, it
is agreed that Tenant's obligations under SECTIONS 4.A, 4.B, and 4.C, and under
ARTICLES 6, 8, 12, 13, 19, 24, 29 and 30 shall survive the expiration or early
termination of this Lease.
I. BINDING EFFECT. Landlord has delivered a copy of this Lease to Tenant
for Tenant's review only, and the delivery of it does not constitute an offer to
Tenant or an option. This Lease shall not be effective against any party hereto
until an original copy of this Lease has been signed by such party and delivered
to the other party.
J. FULL AGREEMENT; AMENDMENTS. This Lease contains the parties' entire
agreement regarding the subject matter hereof. All understandings, discussions,
and agreements previously made between the parties, written or oral, are
superseded by this Lease, and neither party is relying upon any warranty,
statement or representation not contained in this Lease. This Lease may be
modified only by a written agreement signed by Landlord and Tenant. The exhibits
and riders attached hereto are incorporated herein and made a part of this Lease
for all purposes.
K. TAX WAIVER. Tenant waives all rights pursuant to all Laws to contest
any taxes or other levies or protest appraised values or receive notice of
reappraisal regarding the Property (including Landlord's personalty),
irrespective of whether Landlord contests same.
L. METHOD OF CALCULATION. Intentionally Omitted.
M. WAIVER OF CONSUMER RIGHTS. Intentionally Omitted.
N. MONUMENT/WALL SIGNAGE.
(1) During the initial Term, but only so long as (a) Tenant occupies at
least 14,077 Rentable Square Feet in the Building and (b) no event of default
has occurred under the Lease, Tenant shall have the right to install and
maintain, at Tenant's sole expense, non-exclusive exterior signage identifying
Tenant's name (the "SIGNAGE") on a raised wall to be erected by Tenant at
Tenant's sole cost and expense in the general location as depicted on Exhibit G
attached hereto (the "MONUMENT/WALL"). To the extent necessary, Landlord shall
pay the costs associated with removing any existing landscaping in front of the
proposed location of the Monument/Wall and Signage. The signage rights granted
herein are personal to the specific party originally identified as the "Tenant"
under the Lease and may not be transferred, shared or assigned in whole or in
part to any assignee, subtenant or other tenant in the Building.
(2) The location, size, material, construction and design of both
the Monument/Wall and the Signage shall be subject to (a) the prior written
approval of Landlord, in its sole discretion; (b) compliance with applicable
Laws; and (c) if required, the prior written approval of the architectural
review committee (the "ARC") under the restrictive covenants applicable to the
Property, as the same may be amended or modified from time to time (the
"COVENANTS"). Tenant shall not make any subsequent alterations in or additions
to the Monument/Wall and/or the Signage without in each instance first complying
with the foregoing requirements. Tenant acknowledges that
34
Landlord has made no representation that any Monument/Wall and/or Signage
proposed by Tenant will comply with applicable Law or the Covenants, nor has
Landlord made any representations as to whether or not any applicable
governmental authorities (including the City and County of Denver and any ARC)
will authorize the construction of the Monument/Wall. Landlord approves the use
of the name of Tenant on the Signage and represents that it is not in
competition with another tenant of Landlord or its affiliate nor it is in
contravention of any prior signage rights. In addition, Landlord approves the
specifications for the Monument/Wall and Signage as more fully depicted on
Exhibit H attached hereto (the "SIGNAGE SPECIFICATIONS"), subject to the
following conditions: (x) the type of stucco/brick identified in the Signage
Specifications is not approved by Landlord, and Tenant shall submit new samples
of stucco/brick for Landlord's review and approval, it being expressly
acknowledged and agreed that the stucco/brick remains subject to Landlord's
approval; (y) the Signage shall not be illuminated, and so the references on the
Signage Specifications to illuminated Signage are not approved by Landlord, it
being expressly acknowledged and agreed that the Signage shall not be
illuminated; and (z) the Signage Specifications (as the same may be modified
based on the issues identified in (x) and (y) above, still remain subject to
review and approval of all applicable governmental authorities (including the
City and County of Denver and any ARC).
(3) Tenant, at its expense, shall obtain all necessary governmental
permits and certificates required for the installation and use of the
Monument/Wall and/or the Signage, as well as any approvals necessary under the
Covenants; provided however that Landlord shall reasonably cooperate (so long as
there is no out-of-pocket cost to Landlord) with Tenant and/or its affiliates in
obtaining any such approvals. All construction, installation, alterations and
repair and maintenance work shall be performed in a good and workmanlike manner
in compliance with the Building's rules and regulations and shall not interfere
with, delay or otherwise impose any additional expenses upon Landlord in the
maintenance and operation of the Building or upon the use and enjoyment by other
tenants of their respective premises in the Building. Tenant shall maintain the
Signage and keep it in good working order repair and shall timely pay or cause
to be paid all costs for work done by Tenant or caused to be done by Tenant
related to the Signage, in accordance with the provisions of SECTION 9(C) of
this Lease. Landlord, as an Operating Expense, shall be generally responsible
for ordinary maintenance and repair to the Monument/Wall itself, once it has
been constructed as provided herein, unless such maintenance or repair is
necessitated due to the negligent or willful acts of any Tenant Party.
(4) Upon the Expiration Date or earlier termination of Tenant's
right to possess the Premises, or if Tenant otherwise fails at any time to
comply with the requirements of this Paragraph, Tenant shall, at its sole
expense, promptly remove all Signage from the Monument/Wall, and repair any
damage caused to the Monument/Wall and restore the same to as good of condition
as it was in prior to the installation of the Signage, ordinary wear and tear
excepted. The Monument/Wall will be deemed to be owned by Landlord and shall not
be removed by Tenant. However, if the Signage is not removed from the Property
within ten (10) business days after Landlord's notice, then the Signage shall
conclusively be deemed to have been abandoned by Tenant and may be removed,
appropriated, sold, stored, destroyed or otherwise disposed of by Landlord
without further notice to Tenant or any other person and without obligation to
account therefor. Tenant shall pay Landlord all expenses incurred in connection
with any such removal, appropriation, sale, storage, destruction and disposition
of the Signage and the repair of any damage caused by the Signage or its
removal.
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(5) Notwithstanding anything to the contrary contained in this
Paragraph, or in any approvals or other communications, Landlord reserves the
right, in its sole discretion and at its expense, to change any existing signage
or modify its signage guidelines for the Property at any time and from time to
time; provided, however, if Landlord removes any Signage, Landlord shall,
subject to obtaining appropriate approvals from all governmental authorities
having jurisdiction (including the City and County of Denver and any ARC),
construct and install replacement Signage of equal or greater prominence than
the Signage which was removed, which new Signage shall be subject to Tenant's
approval, not to be unreasonably withheld or delayed.
(6) If, at any time after the Commencement Date, Tenant occupies a
number of rentable square feet within the Building equal to or greater than the
rentable square footage contained in two full floors of the Building, Tenant
shall, subject to obtaining appropriate approvals from all governmental
authorities having jurisdiction (including the City and County of Denver and any
ARC), be permitted to add an additional sign to the exterior facade of the
Building, in such location as to be mutually agreed upon between Landlord and
Tenant. The size, color and other aesthetics of any such additional signage
shall be subject to Landlord's prior written approval, and all other terms and
conditions of this SECTION 30.N shall apply with respect to such additional
signage.
O. TELECOMMUNICATIONS LICENSE AGREEMENT. Landlord and Tenant agree that,
subject to availability, Tenant shall have the right to request no more than 100
square feet of space available for Tenant on the roof of the Building for the
installation of certain telecommunications equipment (the "TELECOMMUNICATIONS
EQUIPMENT"), subject to the provisions of this SECTION 31.O. In the event that
no such space is available at the time of Tenant's request, Landlord will have
no obligation to make any such space available. In the event that such space is
available at the time of Tenant's request, the following provisions shall apply
with respect to any such Telecommunications Equipment. The quantity, type, size,
electrical and transmission capacity, location and other variables regarding
such Telecommunications Equipment shall be subject to Landlord's prior approval.
The Telecommunications Equipment shall be installed in a good and workmanlike
manner, in compliance with all Laws, and at Tenant's sole cost and expense, and
Tenant shall be responsible for all upkeep and replacement of the same, all at
Tenant's sole cost and expense. Without limiting the generality of the
foregoing, Tenant shall execute Landlord's then current form of license
agreement concerning use of the area so designated for installation of the
Telecommunications Equipment, and Landlord expressly reserves the right to
charge Tenant monthly license fees for the use of any such space at Landlord's
then quoted rates.
P. BUILDING DIRECTORY SIGNAGE. Landlord agrees that so long as it
maintains any type of Building directory signage generally identifying the
tenants of the Building ("DIRECTORY SIGNAGE") located in the lobby of, or
elsewhere in the Building, Tenant shall have the right to have its name placed
on such Directory Signage along with other tenants, with the size, color, and
other aesthetics of both the Directory Signage and Tenant's designation thereon
to be determined by Landlord in its sole and absolute discretion. Subject to the
foregoing, Landlord will provide Tenant with building standard Directory Signage
at Landlord's cost and expense.
[THE REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
36
Landlord and Tenant have executed this Lease as of the Effective Date
specified below Landlord's signature.
LANDLORD:
CRESCENT REAL ESTATE FUNDING
VIII, L.P., a Delaware limited
partnership
By: CRE Management VIII, LLC, a
Delaware corporation, its General
Partner
By: Crescent Real Estate
Equities, Ltd., a Delaware
corporation, its Manager
By: /s/ John Zogg
------------------------------
Name: John L. Zogg, Jr.
----------------------------
Title: Senior Vice President
---------------------------
Asset Management and
Leasing
Effective Date: 5/21/04
--------------- -----------------
TENANT:
STARTEK USA, INC., a Colorado
corporation
By: /s/ L.R. Zingale
-------------------------------------
Name: L.R. Zingale
-----------------------------------
Title: COO
----------------------------------
37
EXHIBIT A-1
OUTLINE AND LOCATION OF PREMISES
[TO BE ATTACHED]
A1-1
[FLOORPLAN OF SUITE 400]
A1-2
EXHIBIT A-2
LEGAL DESCRIPTION OF PROPERTY
PARCEL A (1):
Parcel of land being a portion of Lot 7 and all of Lots 8 through 20, together
with a portion of the adjacent alley thereto vacated by Ordinance No. 554-1981,
Block 15, Burlington Capitol Hill Addition, City and County of Denver, State of
Colorado, described as follows:
Beginning at the Southwesterly boundary corner of said block 15; thence
Northerly along the Westerly boundary line of said Block 15, a distance of
349.47 feet; thence Easterly and parallel to the Southerly boundary line of said
Block 15 on an interior angle to the left of 89E58'19", a distance of 126.30
feet; thence Southerly and parallel to the Westerly boundary line of said Block
15 on an interior angle to the left of 90E01'41" a distance of 349.47 feet to a
point on the Southerly boundary line of said Block 15; thence Easterly on an
interior angle to the left 89E58'19" a distance of 126.30 feet to the point of
beginning.
PARCEL A (2):
Easement rights as created by an amended and restated Easement Agreement
recorded April 19, 1984, in Book 3076 at Page 140, over, across and through the
following described property:
A parcel of land being all of Lots 21 through 30 and a portion of Lots 31 and
32, together with a portion of the adjacent alley thereto vacated by Ordinance
554-1981, Block 15, Burlington Capitol Hill Addition, City and County of Denver,
State of Colorado, described as follows:
Beginning at the Southeasterly boundary corner of said Block 15; thence
Northerly along the Easterly boundary line of said Block 15, a distance of
283.10 feet; thence Westerly and parallel with the Southerly boundary line of
said Block 15 on an interior angle to the right of 90E00'48" a distance of 33.50
feet; thence Southwesterly on an interior angle to the right of 134E08'30" a
distance of 23.13 feet; thence Westerly and parallel to the Southerly boundary
line of said Block 15 on an interior angle to the right of 225E51'30" a distance
of 88.92 feet to a point that lays 126.30 feet Easterly, when measured at right
angles, from the Westerly boundary line of said Block 15; thence Southerly and
parallel to said Westerly boundary line on an interior angle to the right of
89E58'19" a distance of 266.50 feet to a point on the Southerly boundary line of
said Block 15; thence Easterly on an interior angle to the right of 90E01'41" a
distance of 138.46 feet to the point of beginning.
PARCEL B:
A2-1
A parcel of land being a portion of the alley vacated by Ordinance Number
554-1891, Block 15, Burlington Capitol Hill Addition, City and County of Denver,
State of Colorado described as follows:
Beginning at the southwesterly boundary corner of said Block 15; thence
northerly along the westerly boundary line of said Block 15 a distance of 349.47
feet; thence easterly and parallel to the southerly boundary line of said Block
15 on an interior angle to the left of 89E58'19" a distance of 126.30 feet to
the True Point of Beginning; thence continuing easterly on the same course 13.7
feet; thence southerly and parallel to the westerly boundary line of said Block
15 on an interior angle to the right of 90E01'41" a distance of 19.52 feet;
thence westerly on an interior angle to the right of 89E58'32" a distance of
13.7 feet; thence northerly and parallel to the westerly boundary line of said
Block 15 a distance of 19.52 feet to the Point of Beginning.
A2-2
EXHIBIT B
RULES AND REGULATIONS
[TO BE ATTACHED]
B-1
Landlord and Tenant agree that the following Rules and Regulations shall
be and hereby are made a part of this Lease, and Tenant agrees that Tenant's
employees and agents, or any others permitted by Tenant to occupy or enter the
Premises, will at all times abide by said Rules and Regulations:
1. The sidewalks, entries, passages, corridors, stairways and elevators of
the Building shall not be obstructed by Tenant, or Tenant's agents or employees,
or used for any purpose other than ingress to and egress from the Premises.
2. Furniture, equipment or supplies will be moved in or out of the
Building only upon the elevator designated by Landlord and then only during such
hours and in such manner as may be prescribed by Landlord and upon no less than
forty-eight (48) hours prior notice to Landlord. Landlord shall have the right
to approve or disapprove the movers or moving company employed by Tenant. Tenant
shall cause its movers to use only the loading facilities and elevator
designated by Landlord. In the event Tenant's movers damage the elevator or any
part of the Building, Tenant shall forthwith pay to Landlord the amount required
to repair said damage.
3. Landlord reserves the right to refuse admittance to the Building at any
time other than between the hours of 7:00 a.m. and 6:00 p.m. Monday through
Friday, and 8:00 a.m. to 1:00 on Saturday, to any person not producing both a
key to the Leased Premises and/or a pass issued by Landlord. In case of
invasion, riot, public excitement or other commotion, Landlord also reserves the
right to prevent access to the Building during the continuance of same. Landlord
shall in no case be liable for damages for the admission or exclusion of any
person to or from the Building.
4. No safe or articles, the weight of which may in the opinion of Landlord
constitute a hazard or damage to the Building or Building's equipment, shall be
moved into the Premises.
5. Safes and other equipment, the weight of which is excessive, shall be
moved into, from and about the Building only during such hours and in such
manner as shall be prescribed by Landlord; and Landlord shall have the right to
designate the location of such articles in the Premises (except Landlord shall
not designate the location of normal office equipment such as copiers, computers
or facsimile machines).
6. No sign, advertisement or notice shall be inscribed, painted or affixed
on any part of the inside or outside of the Building unless of such color, size
and style and in such place upon or in the Building, as shall be first
designated and approved in writing by Landlord, provided, however, there shall
be no obligation or duty on Landlord to allow any sign, advertisement or notice
to be inscribed, painted or affixed on any part of the inside or outside of the
Building except as otherwise provided in the Lease. No furniture shall be placed
in front of the Building or in any lobby or corridor, without the prior written
discretionary consent of Landlord. Landlord shall have the right to remove all
non-permitted signs and furniture, without notice to Tenant, and at the expense
of Tenant.
7. Tenant shall not do or permit anything to be done in the Premises, or
bring or keep anything therein which would in any way increase the rate of fire
insurance on the Building or on property keep therein, constitute a nuisance or
waste, or obstruct or interfere with the rights of other tenants, or in any way
injure or annoy them, or conflict with any of the rules or ordinances of the
Fire Department or of the Department of Health of the City and County where the
Building is located.
8. Tenant shall not employ any person or persons other than the janitor of
Landlord for the purpose of cleaning or taking care of the Premises, without the
prior written consent of Landlord. Landlord shall be in no way responsible to
Tenant for any loss of property from the Premises, however occurring, or for any
damage done to Tenant's furniture or equipment by the janitor or any of
janitor's staff, or by any other person or persons whomsoever; provided,
however, that the janitorial staff is bonded. The janitor of the Building may at
all times keep a pass key, and other agent of Landlord shall at all times be
allowed admittance to the Premises.
9. Water closets and other water fixtures shall not be used for any
purpose other than that for which the same are intended, and any damage
resulting to the same from misuse on the part of Tenant, Tenant's agents or
employees, shall be paid for by Tenant. No person shall waste water by tying
back or wedging the faucets or in any other manner.
10. No animals shall be allowed in the offices, halls, corridors and
elevators in the Building. No person shall disturb the occupants of this or
adjoining buildings or premises by the use of any radio, sound equipment or
musical instrument or by the making of loud or improper noises.
11. No vehicles, including bicycles, shall be permitted in the offices,
halls, corridors, and elevators in the Building nor shall any vehicles be
permitted to construct the sidewalks or entrances of the Building.
12. Tenant shall not allow anything to be placed on the outside of the
Building, nor allow anything to be thrown by Tenant, Tenant's agents or
employees, out of the windows or doors, or down the corridors, elevator shafts,
or ventilating ducts or shafts of the Building, Tenant, except in case of fire
or other emergency, shall not open any outside window.
13. No additional lock or locks shall be placed by Tenant on any door in
the Building unless written consent of Landlord shall first have been obtained.
A reasonable number of keys to the toilet rooms if locked by Landlord will be
furnished by Landlord and neither Tenant, Tenant's agents or employees shall
have any duplicate keys made. At the termination of this tenancy, Tenant shall
promptly return to Landlord all keys to offices, toilet rooms or vaults.
14. No window shades, blinds, screens, draperies or other window coverings
will be attached or detached by Tenant without Landlord's prior written consent.
Tenant agrees to abide by Landlord's rules with respect to maintaining uniform
curtains, draperies and/or linings at all windows and hallways.
15. No awnings shall be placed over any window.
16. If Tenant desires telegraphic, telephonic or other electric
connections. Landlord or Landlord's agents will direct the electricians a to
where and how the wires may be introduced and without such directions, no boring
or cutting for wires will be permitted. Any such installation and connection
shall be made at Tenant's expense.
2
17. Tenant shall not install or operate any steam or gas engine or boiler,
or carry on any mechanical operation in the Premises. The use of oil, gas or
inflammable liquids for heating, lighting or any other purpose is expressly
prohibited. Explosives or other articles deemed extra hazardous shall not be
brought into the Building.
18. Any painting or decorating as may be agreed to be done by Landlord
shall be done during regular weekday working hours. Should Tenant desire such
work on Saturdays, Sundays, holidays or outside of regular working hours, Tenant
shall pay for the extra cost thereof.
19. Except as permitted by Landlord and except for normal office
decorating, Tenant shall not mark upon, paint signs upon, cut, drill into, drive
nails or screws into or in any way deface the walls, ceilings, partitions or
floors of the Premises or of the Building, and any defacement, damage or injury
caused by Tenant, Tenant's agents or employees, shall be paid for by Tenant.
20. Landlord shall at all times have the right, by Landlord's
representatives or agents, to enter the Premises and show the same to persons
wishing to lease them, and may, at any time within sixty (60) days preceding the
termination of Tenant's Lease term, place upon the doors and windows of the
Premises a "For Lease" sign, which notice shall not be removed by Tenant.
21. Tenant shall not obstruct or interfere with the rights of other
tenants or the Building, or of persons having business in the Building, or in
any way injure or annoy such tenants or persons.
22. Tenant shall not commit any act or permit anything in or about the
Building which shall or might subject Landlord to any liability or
responsibility for injury to any person or property by reason of any business or
operation being carried on in or about the Building or for any other reason.
23. Tenant shall not use the Building for lodging, sleeping, or for any
immoral or illegal purpose or for any purpose that will damage the Building, or
the reputation thereof, or for any purposes other than those specified in the
Lease.
24. Canvassing, soliciting, peddling and distributing handbills in the
Building are prohibited, and Tenant shall cooperate to prevent such activities.
25. Tenant shall not conduct mechanical or manufacturing operations or
place or use any inflammable combustible explosive, or hazardous fluid,
chemical, device, substance or material in or about the Building, except for
materials which are normal and customary office supplies and are kept in
quantities normally and customarily found in offices and are not in violation of
Applicable Law. Tenant shall comply with all statutes, ordinances, rules,
orders, regulations and requirements imposed by governmental or
quasi-governmental authorities in connection with fire and public safety and
fire prevention and shall not commit any act or permit any object to be brought
or kept in the Building, which shall result in a change of the rating of the
Building by the insurance Services Officer or any similar person or entity.
26. Tenant shall not use the building for manufacturing or for the storage
of goods, wares or merchandise, except as such storage may be incidental to the
use of the Premises for general office purposes and except in such portions of
the Premises as may be specifically designated by
3
Landlord for such storage. Tenant shall not occupy the Building or permit any
portion of the Building to be occupied for the manufacture of direct sale of
liquor, narcotics, or tobacco in any form, or as a medical office, barber shop,
manicure shop, music or dance studio or employment agency. Tenant shall not
conduct in or about the Building any auction, public or private, without the
prior written approval of Landlord.
27. Tenant shall not use in the Building any machines, other than the
standard office machines such as typewriters, calculators, copying machines and
similar machines, without the express prior written consent of Landlord.
Business machines and mechanical equipment belonging to Tenant which cause noise
or vibration that may be transmitted to the structure of the Building, to such a
degree as to be objectionable to Landlord or other tenants, shall be placed and
maintained by Tenant, at Tenant's expense, on vibration eliminators or in
noise-dampening housing or other devices sufficient to eliminate noise or
vibration.
28. Tenant shall not deposit any trash, refuse, cigarettes, or other
substances of any kind within or out of the Building except in the refuse
containers provided therefore. Tenant shall not introduce into the Building any
substance which might add an undue burden to the cleaning or maintenance of the
Premises or the Building. Tenant shall exercise its best efforts to keep the
sidewalks, entrances, passages, courts, lobby areas, garages or parking areas,
elevators, escalators, stairways, vestibules, public corridors and halls in and
about the Building clean and free from rubbish.
29. Tenant shall use the Common Areas only as a means of ingress and
egress, and Tenant shall permit no loitering by any persons upon Common Areas or
elsewhere within the Building. The Common Areas and roof of the Building are not
for the use of the general public, and Landlord shall, in all cases, retain the
right to control or prevent access thereto by all persons whose presence in the
judgment of the Landlord, shall be prejudicial to the safety, character,
reputation or interests of the Building and its tenants. Tenant shall not enter
the mechanical rooms, air conditioning rooms, electrical closets, or similar
areas or go upon the roof of the Building without the express prior written
consent of Landlord.
30. Landlord its agents or representatives reserve the right to exclude or
expel from the Building any person, who, in the judgment of Landlord, is
intoxicated or under the influence of liquor or drugs or who shall in any manner
act in violation of the rules and regulations of the Building.
31. Tenant shall not use the washrooms, restrooms and plumbing fixtures of
the Building, and appurtenances thereto, for any other purpose then the purposes
for which they were constructed, and Tenant shall not deposit any sweepings,
rubbish, rags or other improper substances therein. Tenant shall not waste water
by interfering or tampering with the faucets or otherwise. If Tenant or Tenant's
servants, employees, contractors, jobbers, agents, licensees, invitees, guests
or visitors cause any damage to such washrooms, restrooms, plumbing fixtures or
appurtenances, such damage shall be repaired at Tenant's expense and Landlord
shall not be responsible therefor.
32. The sashes, sash doors, skylights, windows and doors that reflect or
admit light or air into the common areas of the Building shall not be covered or
obstructed by Tenant, through placement of objects upon windowsills or
otherwise. Tenant shall cooperate with Landlord in
4
obtaining maximum effectiveness of the cooling system of the Building by closing
drapes and other window coverings when the sun's rays fall upon the windows o
the Premises. Tenant shall not obstruct, alter or in any way impair the
efficient operation of Landlord's heating, ventilating, air conditioning,
electrical, fire, safety, or lighting systems, nor shall Tenant tamper with or
change the setting of any thermostat or temperature control valves in the
Building.
33. Subject to applicable fire or other safety regulations, all doors
opening into Common Area and all doors upon the perimeter of the Premises shall
be kept closed and, during nonbusiness hours, locked, except when in use for
ingress or egress. If Tenant uses the Premises after regular business hours or
on nonbusiness days, Tenant shall lock any entrance doors to the Building or to
the Premises used by Tenant immediately after using such doors.
34. During the term of the Lease, Tenant shall comply with all statutes,
ordinances, rules, orders, regulations and requirements of the federal, state,
county and city governments and all departments thereof applicable to the
presence, storage, use, maintenance and removal of toxic, hazardous or
contaminated substances (collectively, "hazardous material") in, on or about the
Premises, which presence, storage, use, maintenance or removal is caused or
permitted by Tenant. In no event shall the aforesaid be construed to mean that
Landlord has given or will give its consent to Tenant's storing, using,
maintaining or removing hazardous materials in, on or about the Premises.
35. Tenant shall not permit its employees or agents to smoke in any lobby,
hallway, stairwell or restroom within the Building Complex or in any other areas
of the Building Complex posted as a non-smoking area.
36. Tenant agrees that Landlord may reasonably amend, modify, delete or
add new and additional rules and regulations to the use and care of the Premises
and the Building, provided such changes shall not unreasonably interfere with
Tenant's use of the Premises for office purposes. Tenant agrees to comply with
all such rules and regulations upon notice to Tenant from Landlord thereof. In
the event of any breach of any rules and regulations herein set forth or any
reasonable amendments, modifications or additions thereto. Landlord shall have
all remedies in this Lease provided for in the event of default by Tenant.
5
EXHIBIT C
COMMENCEMENT LETTER
Re: Office Lease dated _____________, 200__ (the "LEASE") between CRESCENT
REAL ESTATE FUNDING VIII, L.P., ("LANDLORD") and STARTEK USA, INC.
("TENANT") for the Premises, the Rentable Square Footage of which is
14,077, located on the fourth floor of the building commonly known as 44
Cook and located at 44 Cook Street, Denver, Colorado 80206 (the
"BUILDING"). Unless otherwise specified, all capitalized terms used herein
shall have the same meanings as in the Lease.
Landlord and Tenant agree that:
Landlord has fully completed all Landlord Work required under the terms of the
Lease, if any.
Tenant has accepted possession of the Premises. The Premises are usable by
Tenant as intended; Landlord has no further obligation to perform any Landlord
Work or other construction, and Tenant acknowledges that both the Building and
the Premises are satisfactory in all respects.
The Commencement Date of the Lease is ______________, 200__.
The Expiration Date of the Lease is the last day of ______________, ______.
Tenant's Address at the Premises after the Commencement Date is:
__________________________________
__________________________________
__________________________________
Attention:________________________
Phone:____________________________
Fax:______________________________
All other terms and conditions of the Lease are ratified and acknowledged to be
unchanged.
EXECUTED as of ______________, 200__.
C-1
LANDLORD:
CRESCENT REAL ESTATE FUNDING VIII,
L.P., a Delaware limited partnership
By: Crescent Real Estate Equities
Limited Partnership, a Delaware limited
partnership, its managing agent,
By: Crescent Real Estate
Equities, Ltd., a Delaware
corporation, its general partner
By:________________________
Name:______________________
Title:_____________________
TENANT:
STARTEK USA, INC., a Colorado
corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
C-2
EXHIBIT D
WORK LETTER
This Work Letter is attached as an Exhibit to an Office Lease (the
"LEASE") between CRESCENT REAL ESTATE FUNDING VIII, L.P., as Landlord, and
STARTEK USA, INC., as Tenant, for the Premises, the Rentable Square Footage of
which is 14,077, located on the fourth floor of the Building. Unless otherwise
specified, all capitalized terms used in this Work Letter shall have the same
meanings as in the Lease. In the event of any conflict between the Lease and
this Work Letter, the latter shall control.
1. APPROVED CONSTRUCTION DOCUMENTS.
(A) Tenant's Information. Within 10 days after the Effective Date of
this Lease, Tenant shall submit to Landlord (i) the name of a representative of
Tenant who has been designated as the person responsible for receiving all
information from and delivering all information to Landlord relating to the
construction of the Landlord Work (as defined below), and (ii) all information
reasonably necessary for the preparation of complete, detailed architectural,
mechanical, electrical and plumbing drawings and specifications for construction
of the Landlord Work in the Premises, including, as necessary, Tenant's
partition and furniture layout, reflected ceiling, telephone and electrical
outlets and equipment rooms, initial provider(s) of telecommunications services,
doors (including hardware and keying schedule), glass partitions, windows,
critical dimensions, imposed loads on structure, millwork, finish schedules,
security devices, if any, which Tenant desires or Landlord requires to have
integrated with other Building safety systems, and HVAC and electrical
requirements (including Tenant's connected electrical loads and the National
Electrical Code (NFPA-70) Design Load Calculations), together with all
supporting information and delivery schedules ("TENANT'S INFORMATION").
(B) Construction Documents. As soon as reasonably practicable
following Landlord's execution of the Lease and receipt of Tenant's Information,
Landlord's designated architectural/engineering firm shall prepare and submit to
Tenant all finished and detailed architectural drawings and specifications,
including mechanical, electrical and plumbing drawings (the "CONSTRUCTION
DOCUMENTS"). In addition, Landlord shall advise Tenant of the number of days of
Tenant Delay (as defined below) attributable to extraordinary requirements (if
any) contained in Tenant's Information. Landlord (or its designated
representative) reserves the right to designate the location(s) of all of
Tenant's mechanical, electrical or other equipment and the manner in which such
equipment will be connected to Building systems.
(C) Approved Construction Documents. Within 3 Business Days after
receipt, Tenant shall (i) approve and return the Construction Documents to
Landlord, or (ii) provide Landlord Tenant's written requested changes to the
Construction Documents, in which event Landlord shall have the Construction
Documents revised (as Landlord deems appropriate) and resubmitted to Tenant for
approval within 3 Business Days after receipt. If Tenant fails to request
changes within such 3 Business Day period, Tenant shall be deemed to have
approved the Construction Documents. Upon Tenant's approval, the Construction
Documents shall become the "APPROVED CONSTRUCTION DOCUMENTS." By granting
approval of the Construction Documents (whether such approval is expressly
granted or deemed given as provided above), Tenant shall be
D-1
deemed to have confirmed by means of calculations or metering that the available
capacity of the Building electrical system will support Tenant's electrical
requirements.
2. COMPETITIVE BIDS. Landlord shall seek 3 competitive bids from general
contractors from Landlord's approved bidding list. Only subcontractors from
Landlord's approved subcontractor list shall be allowed to work on the
mechanical, electrical and plumbing components of the Building. Tenant shall be
invited to the bid opening and allowed to participate in the selection of the
successful bidder; and shall be permitted to select the general contractor from
the 3 competitive bids; provided, however, that notwithstanding which bidder
Tenant selects, Tenant shall be responsible for any Cost Overruns (hereinafter
defined) associated with such selection, which Cost Overruns shall be paid (or
prepaid, if applicable) as provided in PARAGRAPH 5 of this Work Letter.
3. LANDLORD'S CONTRIBUTIONS. Landlord will provide a construction allowance not
to exceed $24.00 multiplied by the Rentable Square Footage of the Premises (the
"CONSTRUCTION ALLOWANCE"), toward the cost of constructing the Landlord Work. In
addition, Landlord will construct the Monument/Wall and Signage thereon,
substantially in accordance with the Signage Specifications, subject to, and as
such Signage Specifications may be required to be amended based on, the
conditions set forth in SECTION 30.N(2) regarding aspects of the Signage
Specifications which have not been approved, which construction shall also be
considered a part of the Landlord Work and subject to all terms and conditions
of this Work Letter pertaining to the Landlord Work, except that Tenant shall be
responsible, at its cost (but subject to reimbursement therefor from Landlord
out of the Construction Allowance if sufficient funds are available for such
purpose after all payments are made for the Landlord Work), for providing any
plans and specifications regarding the Monument/Wall and Signage (including the
Signage Specifications and any required amendments thereto). Payments shall be
made directly to Landlord's contractor performing the Landlord Work. The cost of
(a) all space planning, design, consulting or review services and construction
drawings, (b) extension of electrical wiring from Landlord's designated
location(s) to the Premises, (c) purchasing and installing all building
equipment for the Premises (including any submeters and other above building
standard electrical equipment approved by Landlord), (d) required metering,
re-circuiting or re-wiring for metering, equipment rental, engineering design
services, consulting services, studies, construction services, cost of billing
and collections, (e) materials and labor, and (f) an asbestos survey of the
Premises if required by applicable Law, shall all be included in the cost of the
Landlord Work and may be paid out of the Construction Allowance, to the extent
sufficient funds are available for such purpose. Tenant acknowledges that an
asbestos survey will probably be required by applicable Law and that the time
required for such asbestos surveys should be incorporated in Tenant's
construction planning. In addition, and provided that there are sufficient funds
available in the Construction Allowance, Tenant may utilize a portion of the
Construction Allowance, not to exceed $2.40 per Rentable Square Foot of the
Premises, toward the costs of furniture, fixtures and equipment for the Premises
(the "FF&E" and such costs therefor the "FF&E COSTS"). Subject to the foregoing
limitation, in the event that Tenant elects to use the foregoing for the payment
of FF&E Costs, Landlord will pay such FF&E Costs within thirty (30) days after
receipt from Tenant of third-party invoices therefor. The FF&E shall be
considered the property of the Tenant for all purposes, including tax purposes,
except that any FF&E which by its nature is considered a Leasehold Improvement
(as defined in ARTICLE 29 of the Lease) shall be owned by Landlord and shall
remain upon the Premises without compensation to Tenant, unless such Leasehold
Improvements are deemed to be Special Installations (as defined in ARTICLE 29 of
the
D-2
Lease), in which case the provisions of the Lease regarding Special
Installations shall apply. In addition, and provided that there are sufficient
funds available in the Construction Allowance, Tenant may utilize a portion of
the Construction Allowance, not to exceed $1.50 per Rentable Square Foot of the
Premises, toward Tenant's reasonable out-of-pocket relocation costs (the
"RELOCATION COSTS"). Subject to the foregoing limitation, Landlord will pay such
Relocation Costs within thirty (30) days after receipt from Tenant of
third-party invoices therefor. Notwithstanding the foregoing, Landlord expressly
reserves the right to dispute the reasonableness of any such Relocation Costs.
The Construction Allowance made available to Tenant under this Work Letter must
be utilized for its intended purpose within 180 days of the Effective Date or be
forfeited with no further obligation on the part of Landlord. Notwithstanding
the foregoing, in the event that any of the Construction Allowance remains
unused after the completion of the Landlord Work as set forth in this Work
Letter, the remaining Construction Allowance may be utilized by Tenant for
additional tenant improvements at the Premises (or any other space in the
Building that may be leased by Tenant in the future) at any time so long as at
least six (6) months remain in the initial Term, which additional tenant
improvements shall be subject to Landlord's prior written approval, subject to
entering into a work letter in substantially the same form and of substantially
the same substance of this Work Letter, and subject to all of the provisions of
the Lease concerning the construction of improvements or alterations at the
Premises, including but not limited to SECTION 9 of the Lease.
4. CONSTRUCTION.
(A) General Terms. Subject to the terms of this Work Letter,
Landlord agrees to cause leasehold improvements to be constructed in the
Premises (the "LANDLORD WORK") in a good and workmanlike manner in accordance
with the Approved Construction Documents. Tenant acknowledges that Landlord is
not an architect or engineer, and that the Landlord Work will be designed and
performed by independent architects, engineers and contractors. Accordingly,
Landlord does not guarantee or warrant that the Approved Construction Documents
will comply with Laws or be free from errors or omissions, nor that the Landlord
Work will be free from defects, and Landlord will have no liability therefor. In
the event of such errors, omissions or defects, and upon Tenant's written
request, Landlord will use commercially reasonable efforts to cooperate with
Tenant in enforcing any applicable warranties. In addition, Landlord's approval
of the Construction Documents or the Landlord Work shall not be interpreted to
waive or otherwise modify the terms and provisions of the Lease. Except with
respect to the economic terms set forth in PARAGRAPH 3 of this Work Letter, the
terms and provisions contained in this Work Letter shall survive the completion
of the Landlord Work and shall govern in all applicable circumstances arising
under the Lease throughout the term of the Lease, including the construction of
future improvements in the Premises. Tenant acknowledges that Tenant's
Information and the Approved Construction Documents must comply with (i) the
definitions used by Landlord for the electrical terms used in this Work Letter,
(ii) the electrical and HVAC design capacities of the Building, (iii) Landlord's
policies concerning communications and fire alarm services, and (iv) Landlord's
policies concerning Tenant's electrical design parameters, including harmonic
distortion. Upon Tenant's request, Landlord will provide Tenant a written
statement outlining items (i) through (iv) above.
(B) ADA Compliance. Landlord shall, as an Operating Expense, be
responsible for ADA (and any applicable state accessibility standard) compliance
for the core areas of the Building (including elevators, Common Areas, and
service areas), the Property's parking facilities
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and all points of access into the Property. Tenant shall, at its expense, be
responsible for ADA (and any applicable state accessibility standard) compliance
in the Premises, including restrooms on any floor now or hereafter leased or
occupied in its entirety by Tenant, its Affiliates or transferees. Landlord
shall not be responsible for determining whether Tenant is a public
accommodation under ADA or whether the Approved Construction Documents comply
with ADA requirements, including submission of the Approved Construction
Documents for review by appropriate state agencies. Such determinations, if
desired by Tenant, shall be the sole responsibility of Tenant.
(C) Substantial Completion. The Landlord Work shall be deemed to be
"SUBSTANTIALLY COMPLETE" on the date that all Landlord Work (other than any
details of construction, mechanical adjustment or any other similar matter, the
noncompletion of which does not materially interfere with Tenant's use or
occupancy of the Premises) has been performed and Landlord has obtained the
necessary approval (if any) required from the City and County of Denver prior to
occupancy of the Premises. At or about the time of Substantial Completion,
Landlord and Tenant shall conduct a joint walk-through of the Premises and shall
prepare a written "punch list" of any outstanding items related to the Landlord
Work (the "PUNCHLIST"). Landlord will use commercially reasonable efforts to
complete any items on the Punchlist within thirty (30) days after the date of
Substantial Completion. Tenant shall not be entitled to any abatement of any
rental obligations as pertains to the Premises pending completion of the items
on the Punchlist. In the event that Tenant takes possession of the Premises in
the absence of having created a Punchlist, Tenant will be deemed to have waived
its right to create a Punchlist and shall be deemed to have accepted the
Premises in its "as is" condition. Time is of the essence in connection with the
obligations of Landlord and Tenant under this Work Letter. Landlord shall not be
liable or responsible for any claims incurred (or alleged) by Tenant due to any
delay in achieving Substantial Completion for any reason. Tenant's sole and
exclusive remedy for any delay in achieving Substantial Completion for any
reason other than Tenant Delay (defined below) shall be the resulting
postponement (if any) of the commencement of rental payments under the Lease.
"TENANT DELAY" means any act or omission of Tenant or its agents, employees,
vendors or contractors that actually delays the Substantial Completion of the
Landlord Work, including: (i) Tenant's failure to furnish information or
approvals within any time period specified in this Lease, including the failure
to prepare or approve preliminary or final plans by any applicable due date;
(ii) Tenant's selection of non-building standard equipment or materials; (iii)
changes requested or made by Tenant to previously approved plans and
specifications; or (iv) performance of work in the Premises by Tenant or
Tenant's contractor(s) during the performance of the Landlord Work.
5. COSTS.
(A) Change Orders and Cost Overruns. Landlord's approval is required
in advance of all changes to, and deviations from, the Approved Construction
Documents (each, a "CHANGE ORDER"), including any (i) omission, removal,
alteration or other modification of any portion of the Landlord Work, (ii)
additional architectural or engineering services, (iii) changes to materials,
whether building standard materials, specially ordered materials, or specially
fabricated materials, or (iv) cancellation or modification of supply or
fabrication orders. Except as otherwise expressly provided in this Work Letter,
all costs of the Landlord Work in excess of the Construction Allowance including
Change Orders requested by Tenant and approved by Landlord which increase the
cost of the Landlord Work (collectively, "COST OVERRUNS") shall be paid by
Tenant to Landlord
D-4
within 10 days of receipt of Landlord's invoice. In addition, at Landlord's
election, Landlord may require Tenant to prepay any projected Cost Overruns
within 10 days of receipt of Landlord's invoice for same. Landlord may stop or
decline to commence all or any portion of the Landlord Work until such payment
(or prepayment) of Cost Overruns is received. On or before the Commencement
Date, and as a condition to Tenant's right to take possession of the Premises,
Tenant shall pay Landlord the entire amount of all Cost Overruns, less any
prepaid amounts. Tenant's failure to pay, when due, any Cost Overruns or the
cost of any Change Order shall constitute an event of default under the Lease.
(B) Construction Management Fee. Within 10 days following the date
of invoice, Tenant shall, for supervision and administration of the construction
and installation of the Landlord Work, pay Landlord a construction management
fee equal to 2% of the aggregate contract price for the Landlord Work, which may
be paid from the unused portion of the Construction Allowance (if any). Tenant's
failure to pay such construction management fee when due shall constitute an
event of default under the Lease.
6. ACCEPTANCE. By taking possession of the Premises, Tenant agrees and
acknowledges that (i) the Premises are usable by Tenant as intended; (ii)
Landlord has no further obligation to perform any Landlord Work or other
construction (except punchlist items, if any agreed upon by Landlord and Tenant
in writing): and (iii) both the Building and the Premises are satisfactory in
all respects.
D-5
EXHIBIT E
PARKING AGREEMENT
This Parking Agreement (the "AGREEMENT") is attached as an Exhibit to an
Office Lease (the "LEASE") between CRESCENT REAL ESTATE FUNDING VIII, L.P., as
Landlord, and STARTEK USA, INC., as Tenant, for the Premises, the Rentable
Square Footage of which is 14,077, located on the fourth floor of the Building.
Unless otherwise specified, all capitalized terms used in this Agreement shall
have the same meanings as in the Lease.
1. As of the Commencement Date of the Lease, Tenant shall have the right
to take and pay for up to forty-two (42) permits allowing access to unreserved
spaces in parking facilities which Landlord provides for the use of tenants and
occupants of the Building (the "PARKING FACILITIES"). All of the foregoing
permits shall allow access to "B2/B3" area unreserved spaces in the parking
structure adjacent to the Building. Tenant may obtain the permits by giving
Landlord no less than 30 days' advance written notice of its desire to take such
permits (the "NOTICE"), which Notice shall contain: (a) the number of permits
(up to a maximum of 42 in the aggregate) which Tenant desires to take; and (b)
the date upon which Tenant desires to take such permits (which date shall be no
less than 30 days after the date of the Notice). In the event that Tenant's
Notice fails to designate the number of permits or the timing for obtaining the
same, Tenant will be deemed to have requested 42 permits (or, if Tenant had
previously requested permits, the number of permits still available to Tenant
hereunder), and the effective date for such permits will be deemed to be 30 days
after the date of Landlord's receipt of the Notice. During the first three (3)
years of the Term, Tenant shall pay Landlord $30.00 per permit per month (plus
any taxes thereon) for each unreserved permit taken by Tenant pursuant to the
foregoing procedure. Commencing on the third (3rd) anniversary date of the
Commencement Date, and continuing through the remaining Term (including any
renewal or extension), Tenant shall pay Landlord's quoted monthly contract rate
(as set from time to time) for each unreserved permit, plus any taxes thereon.
In addition, and subject to availability, Landlord will provide Tenant with up
to fourteen (14) additional permits allowing access to unreserved spaces in the
Parking Facilities (each, a "MONTH-TO-MONTH PERMIT" and collectively, the
"MONTH-TO-MONTH PERMITS"). The foregoing Month-to-Month Permits shall be made
available on a month-to-month basis only, subject to availability, shall allow
access to "B4" area unreserved spaces in the parking structure adjacent to the
Building (subject to availability) and either Landlord or Tenant shall have the
ability to cancel any or all of the Month-to-Month Permits at any time upon
thirty (30) days' prior written notice. Tenant may obtain Month-to-Month Permits
by giving Landlord Notice in the same manner as set forth above with respect to
the other permits. In the event that Tenant's Notice fails to designate the
number of Month-to-Month Permits or the timing for obtaining the same, Tenant
will be deemed to have requested fourteen (14) Month-to-Month Permits (or, if
Tenant had previously requested Month-to-Month Permits, the number of
Month-to-Month Permits still available to Tenant hereunder), and the effective
date for such Month-to-Month Permits will be deemed to be 30 days after the date
of Landlord's receipt of the Notice. In the event that such requested
Month-to-Month Permits are not then available, Landlord shall so advise Tenant,
and Tenant shall revise its Month-to-Month Permit request to a number which is
mutually agreeable to the parties, based on, among other things, availability of
the requested Month-to-Month Permits. In no event will Landlord have any
obligation to provide Month-to-Month Permits if the same are not
E-1
then available, and Landlord shall have no obligation to cause any such
Month-to-Month Permits to be made available. If such Month-to-Month Permits are
then available, Tenant shall pay for such Month-to-Month Permits in the same
manner and same amounts as set forth above for the other permits being made
available to Tenant hereunder from the date of the taking of such Month-to-Month
Permits on a month-to-month basis, subject to termination by either party as
provided above. During the period of use of any such Month-to-Month Permits by
Tenant, such Month-to-Month Permits shall be subject to all other terms and
conditions related to parking contained in the Lease, including without
limitation all terms and conditions of this Agreement.
2. Tenant shall at all times comply with all Laws respecting its use of the
Parking Facilities. Landlord reserves the right to adopt, modify, and enforce
reasonable rules and regulations governing the use of the Parking Facilities or
the Property, from time to time, including any key-card, sticker, or other
identification or entrance systems and hours of operations. Landlord may refuse
to permit any person who violates such rules and regulations to park in the
Parking Facilities, and any violation of the rules and regulations shall subject
the automobile in question to removal from the Parking Facilities.
3. Tenant may validate visitor parking by such method or methods as Landlord may
approve, at the validation rate (as set from time to time) generally applicable
to visitor parking. Unless specified to the contrary above, the parking spaces
for the parking permits provided hereunder shall be provided on an unreserved,
"first-come, first-served" basis. Tenant acknowledges that Landlord has arranged
or may arrange for the Parking Facilities to be operated by an independent
contractor, un-affiliated with Landlord. In such event, Tenant acknowledges that
Landlord shall have no liability for claims arising through acts or omissions of
such independent contractor. Landlord shall have no liability whatsoever for any
damage to vehicles or any other items located in or about the Parking
Facilities, and in all events, Tenant agrees to seek recovery from its insurance
carrier and to require Tenant's employees to seek recovery from their respective
insurance carriers for payment of any property damage sustained in connection
with any use of the Parking Facilities. Landlord reserves the right to assign
specific parking spaces, and to reserve parking spaces for visitors, small cars,
handicapped persons and for other tenants, guests of tenants or other parties,
with assigned and/or reserved spaces. Such reserved spaces may be relocated as
determined by Landlord from time to time, and Tenant and persons designated by
Tenant hereunder shall not park in any such assigned or reserved parking spaces.
Landlord also reserves the right to close all or any portion of the Parking
Facilities, at its discretion or if required by casualty, strike, condemnation,
repair, alteration, act of God, Laws, or other reason beyond Landlord's
reasonable control; provided, however, that except for matters beyond Landlord's
reasonable control, any such closure shall be temporary in nature. If Tenant's
use of any parking permit is precluded for any reason, Tenant's sole remedy for
any period during which Tenant's use of any parking permit is precluded shall be
abatement of parking charges for such precluded permits. Tenant shall not assign
its rights under this Agreement except in connection with a Permitted Transfer.
4. Tenant's failure to pay for any of the above-referenced parking permits or to
otherwise comply with any provision of this Agreement shall constitute an event
of default under the Lease (subject to any applicable notice and cure periods).
In addition to any rights or remedies available to Landlord in the event of a
Monetary Default under the Lease, Landlord shall have the right to cancel this
Agreement and/or remove any vehicles from the Parking Facilities.
E-2
EXHIBIT F
FLOOR PLAN OF PREFERENTIAL SPACE
[to be attached]
F-1
[FLOORPLAN OF SUITES 200 AND 210]
F-2
[FLOOR PLAN OF SUITE 300]
F-3
EXHIBIT G
DEPICTION OF LOCATION OF MONUMENT/WALL
G-1
[DEPICTION OF LOCATION OF MONUMENT/WALL]
G-2
EXHIBIT H
MONUMENT/WALL AND SIGNAGE SPECIFICATIONS
H-1
Style and dimension of sign to be approved by Landlord. Sign cannot be
illuminated and will need to match the color and current architectural design of
the building.
[MONUMENT/WALL AND SIGNAGE SPECIFICATIONS]
H-2
RIDER NO. 1
PREFERENTIAL RIGHT TO LEASE
A. PREFERENTIAL RIGHT TO LEASE. So long as twenty-four months remain in the
initial Term, Tenant shall have a Preferential Right to Lease any leasable area
on the 2nd and/or 3rd floors of the Building, as shown on Exhibit F to the Lease
(the "PREFERENTIAL SPACE"), at such time as such space becomes Available (as
defined below) for direct lease to a new tenant (whether or not a bona fide
offer has been made); provided no uncured event of default exists under the
Lease (and no condition exists which, with the passage of time and/or giving of
notice, would be an event of default) and Tenant remains in occupancy of the
entire Premises. The Preferential Space shall be deemed "AVAILABLE" at such time
as Landlord decides to offer the Preferential Space for lease and such space is
no longer any of the following: (i) leased or occupied; (ii) assigned or
subleased by the then-current tenant of the space; (iii) re-leased by the
then-current tenant of the space by renewal, extension or renegotiation (whether
agreed to prior to or after the Effective Date); or (iv) subject to an expansion
option, right of first refusal, preferential right or similar obligation
existing under any other tenant leases for the Property as of the Effective
Date. This Preferential Right to Lease shall terminate upon relocation of the
Premises to another building or upon any Transfer as defined in the Lease. The
Preferential Space shall be reduced to the extent Tenant leases any portion
thereof, whether or not pursuant to a formal option provision in the Lease.
B. ACCEPTANCE. Prior to leasing the Preferential Space to a new tenant, Landlord
shall first offer such space in writing to Tenant specifying the amount and
location of such space, the anticipated date of tender of possession, the rental
rate based on the then-quoted rental rates for comparable space in the Property
as of the anticipated Preferential Space Commencement Date (as defined below),
including any projected rate increases over the applicable term, and other
applicable terms (including any tenant improvement allowance being offered, if
any) (the "PREFERENTIAL RENTAL NOTICE"). Tenant shall have 5 days within which
to accept or reject such offer. If Tenant accepts Landlord's offer, Tenant
shall, within 15 days after Landlord's written request and receipt by Tenant of
a lease amendment setting out the applicable terms related to the Preferential
Space, execute and return a lease amendment adding the Preferential Space to the
Premises for all purposes under the Lease (including any extensions or renewals)
and confirming the Base Rent and other applicable terms specified in the
Preferential Rental Notice. Such lease amendment may, if applicable, contain a
construction agreement using Landlord's then-current form setting forth the
schedule and other terms and obligations of the parties regarding the
construction of any leasehold improvements in the Preferential Space. If Tenant
rejects such offer or fails timely to (i) accept such offer or (ii) execute and
return the required lease amendment, then this Preferential Right to Lease shall
lapse and be of no further force and effect. In such event, Landlord shall be
relieved of any future obligations hereunder and may thereafter lease all or
part of the Preferential Space to any party without further notice or obligation
to Tenant; provided, however, that Landlord will re-offer the Preferential Space
to Tenant if Landlord has been unable to lease such portion of the Preferential
Space within one year after having offered it to Tenant, subject to the same
terms and conditions of this Rider.
C. TENDER OF POSSESSION. The Preferential Space shall be leased for the period
commencing upon Landlord's tender of possession of the Preferential Space in
accordance with Landlord's offer and this Rider (the "PREFERENTIAL SPACE
COMMENCEMENT DATE") and continuing through the
R1-1
expiration or earlier termination of the Term, as it may be extended or renewed.
Landlord shall not be liable for any delay or failure to tender possession of
the Preferential Space by the anticipated tender date for any reason, including
by reason of any holdover tenant or occupant, nor shall such failure invalidate
the Lease or extend the Term.
D. CONDITION OF PREMISES. The Preferential Space shall be tendered in an "as-is"
condition. However, all leasehold improvements shall be constructed in the
Preferential Space in accordance with the construction agreement (if any)
attached to the applicable lease amendment. Any allowances shall be prorated for
any delays in the Preferential Space Commencement Date, taking into account the
economic assumptions underlying the terms in the Preferential Rental Notice.
E. PARKING. For the Preferential Space, Tenant shall take and pay for additional
permits allowing access to unreserved spaces in parking facilities which
Landlord provides for the use of tenants and occupants of the Property at a
ratio of three (3) such permits for every 1,000 Rentable Square Feet of
Preferential Space leased by Tenant hereunder. During the initial Term (and, if
applicable, during any renewal or extension term of this Lease), Tenant shall
pay Landlord's quoted monthly contract rate (as set from time to time) for each
such unreserved permit, plus any taxes thereon.
R1-2