150 CARPENTER FREEWAY
IRVING, TEXAS
OFFICE BUILDING LEASE
THIS LEASE is made this ______ day of ______________________, 19___,
between COSCAN COMMERCIAL PROPERTIES, INC., a Colorado corporation ("Landlord")
and __________________________, a ______________________________ ("Tenant").
1. PREMISES: Landlord hereby leases to Tenant those certain premises
designated on the Plans attached hereto as EXHIBIT A and incorporated herein by
this reference (the "Premises"), consisting of a total of approximately 10,638
square feet of space (Rentable Area) on the first (1st) floor(s), suite(s) 100
of the building known as 150 Carpenter Freeway located at 150 W. John Carpenter
Freeway (hereinafter the "Building"), located on the real property more
particularly described on EXHIBIT B attached hereto and incorporated herein by
reference, together with a non-exclusive right, subject to the provisions
hereof, to use all appurtenances thereunto, including, but not limited to,
parking garage, parking areas and any other areas designated by Landlord for use
by tenants of the Building (the Building, real property on which the same is
situated, parking areas, other areas and appurtenances are hereinafter
collectively sometimes called the "Building Complex"). For purposes of this
Lease, "Rentable Area" shall mean a measure of area expressed in square feet
computed by measuring the distance between the walls which enclose the floor to
the inside finished surface of the dominant portion of the permanent outer
building walls, exclusive of any major vertical penetrations of the floor and
inclusive of columns and projections necessary to the building. Major vertical
penetrations shall mean stairs, elevator shafts, flues, pipe shafts, vertical
ducts and the like, and their enclosing walls, which serve more than one floor
of the building, but shall not include stairs, dumbwaiters, lifts, and the like,
exclusively serving a tenant occupying the leased premises. This Lease is
subject to the terms, covenants and conditions set forth herein and Tenant and
Landlord each covenant as a material part of the consideration of this Lease to
keep and perform each and all of said terms, covenants and conditions to be kept
and performed by them.
2. TERM:
(a) The term of this Lease shall be for Seven (7) years (the "Primary
Lease Term") commencing at 12:01 a.m. on September 1, 1991 (the "Commencement
Date") and terminating at 12:00 midnight on August 31, 1998 (the "Termination
Date"), unless sooner terminated pursuant to the terms hereof. In the event the
Premises are not "Ready for Occupancy" as such term is defined in Paragraph 22
hereof, the Commencement Date shall mean and refer to the date the Premises are
Ready for Occupancy.
(b) If, as a result of the postponement or acceleration of the
Commencement Date, the term would begin other than on the first day of the
month, Tenant shall pay proportionate rent at the same monthly rate set forth
herein (also in advance) for such partial month and all other terms and
conditions of this Lease shall be in force and effect during such partial month,
and the end of the term hereof shall be adjusted to a date which is the last day
of the month _N/A_ years after the Commencement Date. Tenant agrees to execute
and deliver to Landlord, in form attached hereto as EXHIBIT C, an Estoppel and
Commencement Date Certificate, within ten (10) days of the date the term
commences, certifying as to the actual commencement and termination dates of the
term, the rent commencement date, if different, and such other matters as may be
reasonably required by Landlord.
3. RENT: Tenant shall pay to Landlord, rent for the Premises ("Base Rent")
as follows:
(a) During the First (1st) through Sixteenth (60th) months of the
Primary Lease Term, the sum of Five Hundred and Eighteen Thousand Six Hundred
and Two and 50/100 Dollars ($518,602.50) per year, payable in equal monthly
installments of Eight Thousand Six Hundred and Forty Three and 38/100 Dollars
($8,643.38);
(b) During the __________________ through _________________ months of
the Primary Lease Term, the sum of ___________________________________________;
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(c) During the Sixty-first (61st) through Eighty-fourth (84th)
months of the Primary Lease Term, the sum of Two hundred and sixty thousand
six hundred thirty one dollars and 00/100 Dollars ($260,631.00) per year,
payable in equal monthly installments of Ten thousand eight hundred fifty
nine and 63/100 Dollars ($10,859.63);
All installments of Base Rent shall be payable in advance, on the first (1st)
day of each calendar month during the term hereof. Rent for the first and last
months of the term hereof shall be prorated based upon the number of days during
each of said months that the Lease term was in effect. One monthly installment
of Base Rent shall be due and payable on the date of execution of this Lease by
Tenant. All Base Rent shall be paid without notice, demand, deduction or
offset, at the office of Landlord or to such other person or at such other place
as Landlord may designate in writing. Tenant shall pay to Landlord as
"Additional Rent" all other sums due under this Lease.
4. SECURITY DEPOSIT: It is agreed that Tenant, concurrently with the
execution of this Lease, has deposited with Landlord, and will keep on deposit
at all times during the term hereof, the sum of Ten thousand eight hundred and
fifty nine and 63/100 Dollars ($10,859.63), the receipt of which is hereby
acknowledged, as security for the payment of Tenant of the rent and all other
sums herein agreed to be paid and for the faithful performance of the terms,
conditions and covenants of this Lease. If, at any time during [illegible]
default in the performance of any provisions of [illegible] but shall not be
obligated, to use said deposit [illegible] payment of any rent in default,
reimbursement [illegible] in payment of any damages incurred by the [illegible]
such event, Tenant shall, on written demand [illegible] sufficient amount in
cash to restore said deposit Landlord [illegible] deposit has not been utilized
as aforesaid, [illegible] been utilized for such purposes, shall be returned to
Tenant within sixty (60) days after the termination of this Lease [illegible] by
Tenant and vacation of the Premises by Tenant. Landlord [illegible] to
commingle said deposit with other funds of Landlord. Landlord may deliver any
funds deposited herein by Tenant to any purchaser of Landlord's interest in the
Premises in the event such interest is sold, and thereupon Landlord shall be
discharged from further liability with respect to such deposit. If the claims
of Landlord exceed the amount of said deposit, Tenant shall remain liable for
the balance of such claims.
5. RENT ADJUSTMENT:
(a) The following terms shall have the following meanings with
respect to the provisions of this Paragraph 5:
(1) "Base Operating Expenses" shall mean an amount equal to the
actual operating expenses per square foot for calendar year 1991
______________________________________________ Dollars ($____________) per annum
multiplied by the total number of square feet of "Building Rentable Area", as
hereinafter defined. In the event that the actual Operating Expenses during any
year are less than the Base Operating Expenses, Tenant shall not be entitled to
any refund, credit or other form of reimbursement.
(2) "Building Rentable Area" shall mean all rentable space
available for lease in the Building. If there is a significant change in the
aggregate Building Rental Area, of a permanent nature, as a result of an
addition to the Building, partial destruction thereof or similar circumstance,
Landlord's accountants shall determine and make an appropriate adjustment to the
provisions herein.
(3) "Tenant's Pro Rata Share" shall mean a fraction, the
numerator of which is the Rentable Area of the Premises (i.e., 10,638 square
feet) and the denominator of which is the Building Rentable Area (i.e.,
48,290 square feet), and is equal to 22.03%. At such time, if ever, any
space is added to or subtracted from the Premises pursuant to the terms of
this Lease, Tenant's Pro Rata Share shall be increased or decreased
accordingly.
(4) "Operating Expenses" shall mean:
A. All operating expenses of any kind or nature which are
necessary, ordinary or customarily incurred with respect to the operation and
maintenance of the Building Complex as determined in accordance with generally
accepted accounting principles and shall include, but not be limited to:
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(i) Costs of supplies, including but not limited to
the cost of "relamping" all tenant lighting as the same may be required from
time to time;
(ii) Costs incurred in connection with obtaining and
providing energy for the Building Complex, including but not limited to costs of
propane, butane, natural gas, steam, electricity, solar energy and fuel oils,
coal or any other energy sources as well as costs for heating, ventilation, and
air conditioning services ("HVAC");
(iii) Costs of water and sanitary and storm drainage
services;
(iv) Costs of janitorial and security services, if
any;
(v) Costs of general maintenance and repairs,
including costs under HVAC and other mechanical maintenance contracts; and
repairs and replacements of equipment used in connection with such maintenance
and repair work;
(vi) Costs of maintenance and replacement of
landscaping; and costs of maintenance, repair, striping and repaving of parking
areas, common areas, plazas and other areas used by tenants of the Building
Complex, including trash and snow removal;
(vii) Any fees, costs or assessments imposed by any
property owners association;
(viii) Insurance premiums, including fire and all-risk
coverage, together with loss of rent endorsement; public liability insurance;
and any other insurance carried by Landlord on the Building Complex or any
component parts thereof;
(ix) Labor costs, including wages and other payments
for personnel equal to or below the level of building manager, costs to
Landlord of workmen's compensation and disability insurance, payroll taxes,
welfare fringe benefits and all legal fees and other costs or expenses
incurred in resolving any labor disputes;
(x) Professional building manage fees, to a maximum
of 4% of gross receipts generated by the property;
(xi) Legal, accounting, inspection and other
consultation fees (including, without limitation, fees charged by consultants
retained by Landlord for services that are designed to produce a reduction in
Operating Expenses or reasonably to improve the operation, maintenance or state
of repair of the Building Complex) incurred for the normal prudent operation of
the Building Complex and a general overhead and administrative charge equal to
two percent (2%) of all Operating Expenses;
(xii) The costs of capital improvements and structural
repairs and replacements made in or to the Building Complex or the cost of any
machinery or equipment installed in the Building Complex in order to conform to
changes, subsequent to the Lease Commencement Date, in any applicable laws,
ordinances, rules, regulations or orders of any governmental or quasi-
governmental authority having jurisdiction over the Building Complex (herein,
"Required Capital Improvements"); the costs of any capital improvements and
structural repairs and replacements designed primarily to reduce Operating
Expenses (herein, "Cost Savings Improvements"); and a reasonable annual reserve
for all other capital improvements and structural repairs and replacements
reasonably necessary to permit Landlord to maintain the Building as a first
class office building. The expenditures for Required Capital Improvements and
Cost Savings Improvements shall be amortized over the useful life of such
capital improvement or structural repair or replacement (as determined by
Landlord's accountants), provided that the amortized amount of any Cost Savings
Improvement shall be limited in any year to the reduction in Operating Expenses
as a result thereof; and
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(xiii) "Real Estate Taxes" including all real property
taxes and assessments levied against the Building Complex by any governmental or
quasi-governmental authority, including any taxes, assessments, surcharges, or
service or other fees of a nature not presently in effect which shall hereafter
be levied on the Building Complex as a result of the use, ownership or operation
of the Building Complex or for any other reason, whether in lieu of or in
addition to any current real estate taxes and assessments; provided, however,
that any taxes which shall be levied on the rentals of the Building Complex
shall be determined as if the Building Complex were Landlord's only property and
provided further, that in no event shall the term "Taxes and Assessments", as
used herein, include any federal, state or local income taxes levied or assessed
on Landlord, unless such taxes are a specific substitute for real property
taxes; such term shall, however, include gross taxes on rentals and expenses
incurred by Landlord for tax consultants and in contesting the amount or
validity of any such taxes or Assessments (all of the foregoing are collectively
referred to herein as "Taxes"). "Assessments" shall include any and all so-
called special assessments, license tax, business license fee, business license
tax, commercial rental tax, levy, charge or tax imposed by any authority having
the direct power to tax, including any city, county, state or federal
government, district thereof, against the Premises, the Building or the Building
Complex, or against any legal or equitable interest of Landlord therein. For
the purposes of this Lease, any special assessment shall be deemed payable in
such number of installments as is fully assessed as a completed project, for the
purposes of computing the Real Estate Taxes for any adjustment required herein,
the same shall be increased by Landlord's accountants, in accordance with their
estimate of what the assessment will be, upon full completion of the Building
Complex, including installation of all tenant finish items.
(xiv) Any other expense which under generally accepted
accounting principles would be considered a normal maintenance or operating
expense.
If Landlord selects an accrual accounting basis for calculating Operating
Expenses, Operating Expenses shall be deemed to have been paid when such
expenses have accrued in accordance with generally accepted accounting
principles.
B. Operating Expenses shall expressly exclude Landlord's
income taxes; leasing commissions, advertising and promotional expenses;
interest on debt or amortization payments on any mortgages or deeds of trust
except costs of repairs or other work occasioned by fire, windstorm or other
casualty to the extent of insurance proceeds received; and any other expense
which under generally accepted accounting principles would not be considered a
normal maintenance or operating expense, except as otherwise specifically
provided herein. See Rider Attached
(b) It is hereby agreed that commencing January 1 of the calendar year
following the Commencement Date, Tenant shall pay to Landlord as Additional Rent
during the balance of the term hereof an estimate of Tenant's Pro Rata Share of
Operating Expenses for the calendar year in excess of the Base Operating
Expenses as reasonably estimated by Landlord, payable monthly, at the rate of
one twelfth (1/12) thereof, on the same date and at the same place Base Rent is
payable, with an adjustment to be made between the parties at a later date as
hereinafter provided. Landlord shall deliver to Tenant, as soon as practicable
following the end of any calendar year, an estimate of the Operating Expenses
for the new calendar year (the "Budget Sheet"). Until receipt of the Budget
Sheet, Tenant shall continue to pay its monthly Tenant's Pro Rata Share of
Operating Expenses based upon the estimate for the preceding calendar year. To
the extent that the Budget Sheet reflects an estimate of Tenant's Pro Rata Share
of Operating Expenses for the new calendar year greater than the amount actually
paid to the date of receipt of the Budget Sheet for the new calendar year,
Tenant shall pay such amount to Landlord within thirty (30) days of receipt of
the Budget Sheet. Upon receipt of the Budget Sheet, Tenant shall thereafter pay
the amount of its Tenant's Pro Rata Share of Operating Expenses as set forth in
the Budget Sheet. As soon as practicable following the end of any calendar
year, but not later than May 1st, Landlord shall submit to Tenant a statement in
reasonable detail describing the computations of the Operating Expenses setting
forth the exact amount of Tenant's Pro Rata Share of Operating Expenses for the
calendar year just completed (the "Statement"), and the difference, if any,
between the actual Tenant's Pro Rata Share of Operating Expenses for the
calendar year just completed and the estimated amount of Tenant's Pro Rata share
of Operating Expenses paid by Tenant to Landlord. Notwithstanding the
foregoing, Landlord's failure to deliver the Statement to Tenant on or before
May 1st, shall in no way serve as a waiver of Landlord's rights under this
Paragraph. To the extent that the actual Tenant's Pro Rata
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Share of Operating Expenses for the period covered by the Statement is higher
than the estimated Tenant's Pro Rata Share of Operating Expenses which Tenant
previously paid during the calendar year just completed, Tenant shall also
pay to Landlord such balance within thirty (30) days following receipt of the
Statement from Landlord. To the extent that the actual Tenant's Pro Rata
Share of Operating Expenses for the period covered by the Statement is less
than the estimated Tenant's Pro Rata Share of Operating Expenses which Tenant
previously paid during the calendar year just completed, Landlord shall
credit the excess against any sums then owing or next becoming due from
Tenant under the Lease.
(c) If the Lease term hereunder covers a period of less than a full
calendar year during the first or last calendar years of the term hereof,
Tenant's Pro Rata Share of Operating Expenses for such partial year shall be
calculated by proportionately reducing the Base Operating Expenses to reflect
the number of months in such year during which Tenant leased the Premises (the
"Adjusted Base Operating Expenses"). The Adjusted Base Operating Expenses shall
then be compared with the actual Operating Expenses and actual Real Estate Taxes
for said partial year to determine the amount, if any, of any increases in the
actual Operating Expenses for such partial year over the Adjusted Base Operating
Expenses. Tenant shall pay Tenant's Pro Rata Share of any such increases within
ten (10) days following receipt of notice thereof.
(d) Tenant shall have the right at its own expense and at a reasonable
time (after written notice to Landlord) within six (6) months after receipt of
the Statement to audit Landlord's books relevant to the Additional Rent due
under this Paragraph 5. In the event Tenant does not audit Landlord's books and
deliver the result thereof to Landlord within said six (6) month period, the
terms and amounts set forth in the Statement shall be deemed conclusive and
final and Tenant shall have no further right to adjustment. In the event
Tenant's examination reveals that an error has been made in Landlord's
determination of Tenant's Pro Rata Share of Operating Expenses and Landlord
agrees with such determination, then the amount of such adjustment shall be
payable by Landlord or Tenant, to the other party as the case may be. In the
event Tenant's examination reveals an error has been made in Landlord's
determination of Tenant's Pro Rata Share of Operating Expenses, and Landlord
disagrees with the results thereof, Landlord shall have thirty (30) days to
obtain an audit from an accountant of its choice to determine Tenant's Pro Rata
Share of Operating Expenses. In the event Landlord's accountant and Tenant's
accountant are unable to reconcile their audits, both accountants shall mutually
agree upon a third accountant, whose determination of Tenant's Pro Rata Share of
Operating Expenses shall be conclusive. In the event the amount of error by
Landlord is determined to be seven and one half percent (7.5%) or more, the
reasonable costs of the three audits made pursuant to this subparagraph shall be
paid by Landlord. In the event the amount of error by Landlord is determined to
be less than ten percent (10%), the reasonable costs of the three audits made
pursuant to this subparagraph shall be paid to Tenant.
(e) Landlord's failure during the Lease term to prepare and deliver
any statement or bills, or Landlord's failure to make a demand under this
Paragraph or under any other provision of this Lease shall not in any way be
deemed to be a waiver of, or cause Landlord to forfeit or surrender its
rights to collect any items of Additional Rent which may have become due
pursuant to this Paragraph during the term of this Lease. Tenant's liability
for all Additional Rent due under this Paragraph 5 shall survive the
expiration or earlier termination of this Lease.
6. CHARACTER OF OCCUPANCY:
(a) The Premises are to be used for general offices not inconsistent
with the character and type of tenancy found in comparable first-class office
buildings in the Dallas area and for no other purposes without the prior written
consent of Landlord. Tenant shall procure, at its sole expense, all permits or
licenses required for the transaction of business at the Premises.
(b) Tenant shall not suffer nor permit the Premises nor any part
thereof to be used in any manner, nor anything to be done therein, nor suffer or
permit anything to be brought into or kept therein, which would in any way (i)
make void or voidable any fire or liability insurance policy then in force with
respect to the Building Complex, (ii) make unobtainable from reputable insurance
companies authorized to do business in the state where the Premises are located
any fire insurance with extended coverage, or liability, elevator, boiler or
other
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insurance required to be furnished by Landlord under the terms of any lease
or mortgage to which this Lease is subordinate at standard rates, (iii) cause
or in Landlord's reasonable opinion be likely to cause physical damage to the
Building Complex or any part thereof, (iv) constitute a public or private
nuisance, (v) impair, in the opinion of Landlord, the appearance, character
or reputation of the Building Complex, (vi) discharge objectionable fumes,
vapors or odors into the Building air conditioning system or into the
Building flues or vents not designed to receive them or otherwise in such
manner as may unreasonably offend other occupants of the Building, (vii)
impair or interfere with the use of any of the other area of the Building by,
or occasion discomfort, or annoyance to Landlord or any of the other tenants
or occupants of the Building Complex, any such impairment or interference to
be based upon the judgment of Landlord, (viii) create waste in, on or around
the Premises, Building, or Building Complex, or (x) make any noise or set up
any vibration which will disturb other tenants, except in the course of
permitted repairs or alterations at times permitted by Landlord. Landlord
agrees that Tenant's use of the Premises is not in violation of the foregoing
character and tenancy type requirements.
(c) Tenant shall not use the Premises nor permit anything to be
done in or about the Premises or Building Complex which will in any way
conflict with any law, statute, ordinance, protective covenants affecting the
Building Complex or governmental or quasi-governmental rules or regulations
now in force or which may hereafter be enacted or promulgated. Tenant shall
give written notice within two (2) days from receipt thereof to Landlord of
any notice it receives of the violation of any law or requirement of any
public authority with respect to the Premises or the use or occupation thereof.
Landlord shall give prompt notice to Tenant of any notice it receives relative
to the violation by Tenant of any law or requirement of any public authority
with respect to the Premises or the use or occupation thereof.
7. SERVICES AND UTILITIES:
(a) Landlord agrees, without charge except as provided herein, and in
accordance with standards from time to time prevailing for first-class office
buildings in the Dallas area, to furnish water to the Building for use in
lavatories and drinking fountains (and to the Premises if the plans for the
Premises so provide); during ordinary business hours to furnish such heated or
cooled air to the Premises as may be reasonably required for the comfortable use
and occupancy of the Premises provided that Tenant complies with the
recommendations of Landlord's engineer or other duly authorized representative,
regarding occupancy and use of the Premises; to provide janitorial services for
the Premises (including such interior and exterior window washing as may be
required), such janitorial services to be provided five days a week, except for
"Holidays" as herein defined ;during ordinary business hours to cause electric
current to be supplied for lighting the Premises and public halls; and to
furnish such snow removal services to the Building Complex as may, in the
judgment of Landlord, e reasonably required for safe access to the Building
Complex.
(b) Landlord shall provide electricity for normal office purposes
including but not limited to fluorescent and incandescent lighting, including
task and task ambient lighting systems and for normal office equipment including
but not limited to duplicating (reproduction) machines, communications and audio
visual equipment, vending machines, personal computers (provided they do not
require any additional voltage or special electrical requirements) executive
kitchen equipment and internal communication systems (which may include piped-in
music). To the extent that electric current is utilized in excess of the
amounts indicated above, Tenant's rent shall be increased from time to time by
Landlord in such amounts to cover the cost of providing such increased use.
Landlord shall have the right, if it determines based on its own judgment that
Tenant is using electric current for purposes other than those described above
or for other than normal office use, to require Tenant to install a check meter
to determine the amount which Tenant is utilizing. The cost of such excess
usage, and check meter, including but not limited to monitoring, installation
and repair thereof, shall be paid by Tenant.
(c) If Tenant requires water in excess of that usually furnished or
supplied for use in the Premises as general office space, Tenant shall first
procure the consent of Landlord for the use thereof. Tenant agrees to pay to
Landlord such amounts as Landlord determines are necessary to cover the costs of
such increased use of water, including, but not limited to, the cost of
installation, monitoring, maintenance and repair of any check meter or other
instrument necessary to measure the use of additional water.
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(d) Tenant agrees that Landlord shall not be liable for failure to
supply any heating, air conditioning, elevator, electrical, janitorial, lighting
or other services during any period when Landlord uses reasonable diligence to
supply such services, or during any period Landlord is required to reduce or
curtail such services pursuant to any applicable laws, rules or regulations, now
or hereafter in force or effect, it being understood and agreed to by Tenant
that Landlord may discontinue, reduce or curtain such services, or any of them
at such times as it may be necessary by reason of accident, unavailability of
employees, repairs, alterations, improvements, strikes, lockouts, riots, acts of
God, application of applicable laws, statutes, rules and regulations, or due to
any other happening beyond the reasonable control of Landlord. In the event of
any such interruption, reduction or discontinuance of Landlord's services,
Landlord shall not be liable for damages to persons or property as a result
thereof, nor shall the occurrence of any such event in any way be construed as
an eviction of Tenant or cause or permit an abatement, reduction or setoff of
rent, or operate to release Tenant from any of Tenant's obligations hereunder.
If discontinued services cannot be restored within five (5) business days rent
shall abate for the period subsequent that services are discontinued to the date
services begin again. If service continues to be unavailable for thirty (30)
consecutive days, Tenant shall have the right to terminate lease.
(e) whenever heat generating machines or equipment are used by Tenant
in the Premises which affect the temperature otherwise maintained by the air
conditioning system, Landlord reserves the right to install supplementary air
conditioning units in the Premises in the event Landlord's independent
consulting engineer determines same are necessary as a result of Tenant's use of
lights or equipment which generate heat loads in excess of those for which the
HVAC system is designed and the cost therefor, including the cost of
installation, operation and maintenance thereof, shall be paid by Tenant to
Landlord upon demand by Landlord.
(f) In the event that Tenant has any special or additional electrical
or mechanical requirements related to its use of the Premises, any such
electrical or mechanical equipment must be located within the Premises. Such
electrical or mechanical requirements, for the purposes hereof, shall include by
way of example, but not limitation, any internal telephone system. The
foregoing shall in no way be construed as granting to Tenant additional rights
to use any such special or additional electrical or mechanical equipment in its
Premises without the prior written consent of Landlord. Any additional cost or
expense related to or resulting from such electrical or mechanical requirements
shall be the sole obligation of Tenant.
(g) If Tenant requires HVAC service beyond ordinary business hours
(hereafter "After Hours Usage"), such service must be requested from the
Building manager at least twenty-four (24) hours prior thereto. After Hours
Usage shall only be supplied in full floor increments of the Building, for a
minimum of four (4) hour periods, with increments of one half (1/2) hour
thereafter [illegible] Additional Rent, for all costs and expenses for
[illegible] following:
(1) For ventilation: $
and/or
(2) For chiller: $
Notwithstanding the foregoing, if in Landlord's [illegible] demand for After
Hours Usage is or becomes excessive or sufficient [illegible] warrant the same,
Landlord may install, at Tenant's expense, separate meters to monitor or control
Tenant's After Hours Usage, with all costs for the installation, maintenance and
repair of such meter to be paid by Tenant.
8. QUIET ENJOYMENT: Subject to the provisions of this Lease, Landlord
covenants that Tenant on paying the rent and performing the covenants of this
Lease on its part to be performed shall and may peacefully and quietly have,
hold and enjoy the Premises for the term of this Lease. Landlord shall not be
responsible for the acts or omissions of any other tenant or third party which
may interfere with Tenant's use and enjoyment of the Premises. In the event of
any transfer or transfers of Landlord's interest in the Premises or in the real
property of which the Premises are a part, other than a transfer for security
purposes only, the transferor shall be automatically
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relieved of any and all obligations and liabilities on the part of Landlord
accruing from and after the date of such transfer.
9. MAINTENANCE AND REPAIRS:
(a) Notwithstanding any other provisions of this Lease, Landlord shall
repair and maintain in a first-class condition the structural portions of the
Building, including the elevators, plumbing, air conditioning, heating and
electrical systems installed or furnished by Landlord, unless such maintenance
and repairs are caused in part or in whole by the act, neglect, fault or
omission of Tenant, its agents, servants, employees, licensees or invitees, in
which case Tenant shall pay to Landlord, on demand, the cost of such maintenance
and repairs less the amount of any insurance proceeds received by Landlord on
account thereof, if applicable. Landlord shall also maintain and keep in good
order and repair the Building roof; the curtain wall, including all glass
connections at the perimeter of the Building; all exterior doors, including any
exterior plate glass within the Building, the Building ventilating systems;
elevators; escalators; Building telephone and electrical closets; public
portions of the Building or Building Complex, including but not limited to the
balconies, landscaping, walkways, and upper floor lobbies and corridors, and
interior portions of the Building above and below grade which are not covered by
leases.
(b) Tenant, at Tenant's sole cost and expense, except for services
furnished by Landlord pursuant to Paragraph 7 hereof, shall maintain, in good
order, condition and repair, the Premises, including the interior surfaces of
the ceilings (if damaged or discolored due in whole or in part to the act,
neglect, omission or fault of Tenant), walls and floors, all doors, interior
glass partitions or glass surfaces (not exterior windows) and pipes, electrical
wiring, switches, fixtures and other special items, subject to the provisions of
Paragraph 15 hereof. In the event Tenant fails to so maintain the Premises in
good order, condition and repair, Landlord shall give Tenant notice to do such
acts as are reasonably required to maintain the Premises. In the event Tenant
fails to promptly commence such work and diligently pursue it to completion,
then landlord shall have the right, but shall not be required, to do such acts
and expend such funds at the expense of Tenant as are reasonably required to
perform such work. The funds so expended plus fifteen percent (15%) of such
amounts as an overhead/administrative charge shall be due and payable by Tenant
within ten (10) days after receipt of Landlord's invoice therefor. Landlord
shall have no liability to Tenant for any damage, inconvenience or interference
with the use of the Premises by Tenant as a result of performing any such work.
(c) Landlord and Tenant shall each do all acts required to comply with
all applicable laws, ordinances, regulations and rules of any public authority
relating to their respective maintenance obligations as set forth herein.
10. ALTERNATIONS AND ADDITIONS:
(a) Tenant shall make no alternations, additions or improvements to
the Premises or any part thereof without obtaining the prior written consent
of Landlord, which will not be unreasonably withheld. Tenant shall submit
any such request to Landlord at least thirty (30) days prior to the proposed
commencement date of such work. Landlord may impose, as a condition to such
consent, and at Tenant's sole cost, such requirements as Landlord may deem
necessary in its judgment, including without limitation, the manner in which
the work is done, a right of approval of the contractor by whom the work is
to be performed and the times during which the work is to be accomplished,
approval of all plans and specifications and the procurement of all licenses
and permits. Landlord shall be entitled to post notices on and about the
Premises with respect to Landlord's non-liability for mechanics' liens and
Tenant shall not permit such notices to be defaced or removed. Tenant
further agrees not to connect any apparatus, machinery or device to the
Building systems, including electric wires, water pipes, fire safety, heating
and mechanical systems, without the prior written consent of Landlord.
(b) All alterations, improvements and additions to the Premises,
including, by way of illustration but not by limitation, all counters, screens,
grilles, special cabinetry work, partitions, paneling, carpeting, drapes or
other window coverings and light fixtures, shall be deemed a part of the real
estate and the property of Landlord and shall remain upon and be surrendered
with the Premises as a part thereof without molestation, disturbance or injury
at the end of the Lease term, whether by lapse of time or otherwise. All
movable partitions,
8
machines and equipment which are installed in the Premises by or for Tenant,
without expense to Landlord, and can be removed without structural damage to
or defacement of the Building or the Premises, and all furniture, furnishings
and other articles of personal property owned by Tenant and located in the
Premises (all of which are herein called "Tenant's Property") shall be and
remain the property of Tenant and may be removed by it at any time during the
term of this Lease. However, if any of Tenant's Property is removed, Tenant
shall repair or pay the cost of repairing any damage to the Building or the
Premises resulting from such removal. All additions or improvements which are
to be surrendered with the Premises shall be surrendered with the Premises, as
a part thereof, at the end of the term or the earlier termination of this Lease.
(c) If Landlord permits persons requested by Tenant to perform any
alternations, repairs, modifications or additions to the Premises, then prior to
the commencement of any such work, Tenant shall deliver to Landlord certificates
issued by insurance companies qualified to do business in the state where the
Premises are located evidencing that workmen's compensation, public liability
insurance and property damage insurance, all in amounts, with companies and on
forms reasonably satisfactory to Landlord, are in force and maintained by all
such contractors and subcontractors engaged by Tenant to perform such work. All
such policies shall name Landlord as an additional insured and shall provide
that the same may not be canceled or modified without thirty (30) days prior
written notice to Landlord.
(d) Tenant, at its sole cost and expense, shall cause any permitted
alterations, decorations, installations, additions or improvements in or about
the Premises to be performed in compliance with all applicable requirements of
insurance bodies having jurisdiction, and in such manner as not to interfere
with, delay, or impose any additional expense upon Landlord in the construction,
maintenance or operation of the Building, and so as to maintain harmonious labor
relations in the Building.
11. ENTRY BY LANDLORD:
(a) Landlord and its agents shall have the right to enter the Premises
at all reasonable times and upon reasonable notice for the purpose of examining
or inspecting the same, to supply any services to be provided by landlord
hereunder, to show the same to prospective purchasers of the Building, to make
such alterations, repairs, improvements or additions to the Premises or to the
Building as Landlord may deem necessary or desirable, and to show the same to
prospective tenants of the Premises. Landlord and its agent may enter the
Premises at all times and without advance notice for the purpose of responding
to an actual or apparent emergency. Landlord may for the purpose of supplying
scheduled janitorial services and evaluating janitorial services at any time and
from time to time enter the Premises by means of a master key without liability
to Tenant and without affecting this Lease. If, during the last 60 days of the
term hereof, Tenant shall have removed substantially all of its property from
the Premises, Landlord may immediately enter and alter, renovate and redecorate
the Premises without elimination or abatement of rent or incurring liability to
Tenant for any compensation.
(b) Tenant shall be entitled to twelve (12) sets of keys to the
Premises. In the event Tenant needs any additional keys, such keys must be
requested from Landlord. Tenant shall pay to landlord the actual cost of making
such additional keys.
12. MECHANIC'S LIENS: Tenant shall pay or cause to be paid all costs for
work done by or on behalf of Tenant or caused to be done by or on behalf of
Tenant on the Premises of a character which will or may result in liens against
Landlord's interest in the Premises, Building or Building Complex and Tenant
will keep the Premises, Building and Building Complex free and clear of all
mechanic's liens and other liens on account of work done for or on behalf of
Tenant or persons claiming under Tenant. Tenant hereby agrees to indemnify,
defend and save Landlord harmless of and from all liability, loss, damages,
costs or expenses including attorneys' fees, incurred in connection with any
claims of any nature whatsoever for work performed for, or materials or supplies
furnished to Tenant, including lien claims of laborers, materialmen or others.
Should any such liens be filed or recorded against the Premises, Building or
Building Complex with respect to work done for or materials supplied to or on
behalf of Tenant or should any action affecting the title thereto be commenced,
Tenant shall cause such liens to be released of record within ten (10) days
after notice thereof. If Tenant desires to contest any such claim of lien,
Tenant shall nonetheless cause such lien to be released of record by the posting
of adequate security with a court of competent
9
jurisdiction if provided by applicable law or statute of the state where the
Premises are located. If Tenant shall be in default in paying any charge for
which such a mechanic's lien or suit to foreclose such a lien has been
re-recorded or filed and shall not have caused the lien to be released as
aforesaid, Landlord may (but without being required to do so) pay such lien
or claim and any costs associated therewith, and the amount so paid, together
with interest at the Interest Rate and reasonable attorneys' fees incurred in
connection therewith, shall be immediately due and payable from Tenant to
Landlord as Additional Rent.
13. DAMAGE TO PROPERTY, INJURY TO PERSONS:
(a) Tenant, for itself and its legal representatives, successors and
assigns, as a material part of the consideration to be rendered to Landlord
under this Lease, hereby waives all claims of liability against Landlord and
Tenant, for itself and its legal representatives, successors and assigns, hereby
indemnifies and agrees to hold harmless Landlord, its agents, employees,
contractors, legal representatives, successors and assigns, from any and all
claims of liability for any injury or damage to any person or property
whatsoever occurring in, on or about the Premises or the Building Complex or any
part thereof, to the extent such injury or damage is caused by the negligence,
fault or omission of Tenant, its agents, contractors, employees, licensees or
invitees. Tenant further agrees to indemnify and to hold Landlord harmless from
and against any and all claims arising from any breach or default in the
performance of any obligation on Tenant's part to be performed under the terms
of this Lease, or arising from any act or negligence of Tenant, or any of its
agents, contractors, employees, licensees or invitees. Such indemnities shall
include by way of example, but not limitation, all costs, reasonable attorneys'
fees, expenses and liabilities incurred in or about any such claim action or
proceeding.
(b) Landlord shall not be liable to Tenant for any damage by or from
any act or negligence of any company-tenant or other occupant of the Building
Complex, or by any owner or occupant of adjoining or contiguous property.
Landlord shall not be liable for any injury or damage to persons or property
resulting in whole or in part from the criminal activities of others. To the
extent not covered by normal fire and extended coverage insurance, Tenant agrees
to pay for all damage to the Building Complex, as well as all damage to persons
or property of other tenants or occupants thereof, caused by the misuse,
neglect, act, omission or negligence of Tenant or any of its agents,
contractors, employees, licensees or invitees.
(c) Tenant hereby releases Landlord, its agents and employees, from
liability occasioned by the act, omission or negligence of Landlord, its agents,
servants and employees, for the following: (i) any damage to property entrusted
to Landlord, its agents or employees; (ii) loss or damage to any property
occurring by theft or otherwise; (iii) any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the Building Complex
or from the pipes, appliances or plumbing works therein or from the roof, street
or subsurface or from any other place or resulting from dampness, or any other
cause whatsoever; (iv) interference with the lights, view or other incorporeal
hereditaments; provided, however, nothing contained herein shall be construed to
relieve Landlord from liability for any personal injury resulting from its gross
negligence. Tenant shall give prompt notice to Landlord in case of fire or
accidents in or about the Premises or the Building or of defects therein or in
the fixtures or equipment located therein.
(d) In case any claim, demand, action or proceeding is made or brought
against either party, its agents or employees, by reason of any obligation on
either party's part to be performed under the terms of this Lease, or arising
from any act or negligence of either party, its agents or employees, or which
gives rise to either party's obligation to indemnify the other, the prevailing
party shall be responsible for all costs and expenses, including but not limited
to reasonable attorneys' fees incurred in defending or prosecution of the same,
as applicable.
14. INSURANCE:
(a) Landlord agrees to carry and maintain the following insurance
during the term of this Lease and any extension hereof: general public
liability insurance against claims for personal injury, including death and
property damage in or about the Premises and the Building or the Building
Complex (excluding Tenant's Property), such insurance to be in an amount not
less than One Million Dollars ($1,000,000.00) each occurrence,
10
Two Million Dollars ($2,000,000.00) aggregate. Such insurance may expressly
exclude property paid for by tenants or paid for by Landlord for which
tenants have reimbursed Landlord located in, or constituting a part of the
Building or the Building Complex. Such insurance shall afford coverage for
damages resulting from (a) fire, (b) perils covered by extended coverage
insurance, and (c) explosion of steam and pressure boilers and similar
apparatus located in the Building or the Building Complex. Landlord may
carry such other additional insurance coverage as Landlord or Landlord's
mortgage deems appropriate including coverage for loss of rents. All such
insurance shall be procured from a responsible insurance company or companies
authorized to do business in the State where the Premises are located.
(b) Tenant shall, at its own cost, at all times during the term
of this Lease and any extensions hereof, procure and [illegible] extended
coverage on Tenant's Property and [illegible] equal to full replacement cost
thereof, and [illegible] including coverage for bodily injury, property
[illegible] contractual liability exclusions deleted), product [illegible]
liability, owner's protective liability, host liquor [illegible] damage with
the following limits of liability [illegible] occurrence combined single
limit for bodily injury [illegible] Two Million Dollars ($2,000,000.00)
aggregate [illegible] products and completed operations. All such [illegible]
responsible insurance company or companies [illegible] the Premises are
located, with general policyholder's [illegible] and a financial rating of
not less than "XI" in the most current available Best's Insurance Reports,
and shall be otherwise satisfactory to Landlord. All such policies shall
name Landlord as an additional insured, and shall provide that the same may
not be canceled or altered except upon thirty (30) days prior written notice
to Landlord. All insurance maintained by Tenant shall be primary to any
insurance provided by Landlord. If Tenant obtains any general liability
insurance policy on a claims-made basis, Tenant shall provide continuous
liability coverage for claims arising during the entire term of this Lease,
regardless of when such claims are made, either by obtaining an endorsement
providing for an unlimited extended reporting period in the event such policy
is canceled or not renewed for any reason whatsoever or by obtaining new
coverage with a retroactive date the same as or earlier than the expiration
date of the canceled or expired policy. Tenant shall provide certificate(s)
of such insurance to Landlord upon commencement of the Lease term and at
least thirty (30) days prior to any annual renewal date thereof and upon
request from time to time and such certificate(s) shall disclose that such
insurance names Landlord as an additional insured, in addition to the other
requirements set forth herein. The limits of such insurance shall not, under
any circumstances, limit the liability of Tenant hereunder.
(c) Each party agrees to use its best efforts to include in each
of its policies insuring against loss, damage or destruction by fire or other
casualty a waiver of the insurer's right of subrogation against the other
party, or if such waiver should be unobtainable or unenforceable (i) an
express agreement that such policy shall not be invalidated if the insured
waives the right of recovery against any party responsible for a casualty
covered by the policy before the casualty; or (ii) any other form of
permission for the release of the other party. If such waiver, agreement or
permission shall not be, or shall cease to be, obtainable without additional
charge or at all, the insured party shall so notify the other party promptly
after learning thereof. In such case, if the other party shall so elect and
shall pay the insurer's additional charge therefor, such waiver, agreement or
permission shall be included in the policy, or the other party shall be named
as an additional insured in the policy. Each such policy which shall so name
a party hereto as an additional insured shall contain, if obtainable,
agreements by the insurer that the policy will not be canceled without at
least thirty (30) days prior notice to both insureds and that the act or
omission of one insured will not invalidate the policy as to the other
insured. Any failure by either party, if named as an additional insured,
promptly to endorse to the other of the other party, without recourse, any
instrument for the payment of money under or with respect to the policy of
which the other party is the owner or original or primary insured, shall be
deemed a default under this Lease.
(d) Each party hereby releases the other party with respect to
any claim (including a claim for negligence) which it might otherwise have
against the other party for loss, damage or destruction with respect to its
property (including the Building, Building Complex, the Premises and rental
value or business interruption) occurring during the term of this Lease to
the extent to which it is insured under a policy or policies containing a
waiver of subrogation or permission to release liability or naming the above
party as an additional insured as provided above.
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15. DAMAGE OR DESTRUCTION TO BUILDING:
(a) In the event that the Premises or the Building are damaged by
fire or other insured casualty and the insurance proceeds have been made
available therefor by the holder or holders of any mortgages or deeds of
trust covering the Building, the damage shall be repaired by and at the
expense of Landlord to the extent of such insurance proceeds available
therefor, provided such repairs and restoration can, in Landlord's reasonable
opinion, be made within two hundred ten (210) days after the occurrence of
such damage without the payment of overtime or other premiums, and until such
repairs and restoration are completed, the Base Rent shall be abated in
proportion to the part of the Premises which is unusable by Tenant in the
conduct of its business (but there shall be no abatement of Base Rent by
reason of any portion of the Premises being unusable for a period equal to
one day or less). Landlord agrees to notify Tenant within forty-five (45)
days after such casualty if it estimates that it will be unable to repair and
restore the Premises within said two hundred ten (210) day period. Such
notice shall set forth the approximate length of time Landlord estimates will
be required to complete such repairs and restoration. Notwithstanding
anything to the contrary contained herein, if Landlord cannot or estimates it
cannot make such repairs and restoration within said two hundred ten (210)
day period, then Tenant may, by written notice to Landlord cancel this Lease,
provided such notice is given to Landlord within fifteen (15) days after
Landlord notifies Tenant of the estimated time for completion of such repairs
and restoration. Notwithstanding the preceding sentence, Tenant may not
cancel this lease as hereinabove stated if the damage to the Premises or the
Building is in whole or in part the result of the act, omission, fault or
negligence of Tenant, its agents, contractors, employees, licensees or
invitees. Except as provided in this Paragraph 15, there shall be no
abatement of rent and no liability of Landlord by reason of any injury to or
interference with Tenant's business or property arising from the making of
any such repairs, alterations or improvements in or to the Building, Premises
or fixtures, appurtenances and equipment, except for Landlord's negligence,
Tenant understands that Landlord will not carry insurance of any kind on
Tenant's Property, including furniture and furnishings, or on any fixtures or
equipment removable by Tenant under the provisions of this Lease, or any
improvement installed in the Premises by or on behalf of Tenant, and that
Landlord shall not be obligated to repair any damage thereto or replace the
same unless damage is due to negligence of Landlord.
(b) In case the Building throughout shall be so injured or
damaged, whether by fire or otherwise (though the Premises may not be
affected, or if affected, can be repaired within said 210 days) that
Landlord, within sixty (60) days after the happening of such injury, shall
decide not to reconstruct or rebuild the Building, then notwithstanding
anything contained herein to the contrary, upon notice in writing to that
effect given by Landlord to Tenant within said sixty (60) days, Tenant shall
pay the rent, properly apportioned up to date of such casualty, this Lease
shall terminate from the date of delivery of said written notice, and both
parties hereto shall be released and discharged from all further obligations
hereunder (except those obligations which expressly survive termination of
the Lease term). A total destruction of the Building shall automatically
terminate this Lease.
16. CONDEMNATION:
(a) If the whole of the Premises or so much thereof as to render
the balance unusable by Tenant for the proper conduct of its business shall
be taken under power of eminent domain or transferred under threat thereof,
then this Lease, at the option of either Landlord or Tenant exercised by
either party giving notice to the other of such election within thirty (30)
days after such conveyance or taking possession, whichever is earlier, shall
forthwith cease and terminate and the rent shall be duly apportioned as of
the date of such taking or conveyance. No award for any partial or entire
taking shall be apportioned and Tenant hereby assigns to Landlord any award
which may be made in such taking or condemnation, together with any and all
rights of Tenant now or hereafter arising in or to the same or any part
thereof. Notwithstanding the foregoing, Tenant shall be entitled to seek,
directly from the condemning authority, an award for its removable trade
fixtures, equipment and personal property and relocation expenses, if any.
In the event of a partial taking which does not result in a termination of
this Lease, Base Rent shall be reduced in proportion to the reduction in the
size of the Premises so taken and this Lease shall be modified accordingly.
Promptly after obtaining knowledge thereof, Landlord or Tenant, as the case
may be, shall notify the other of any pending or threatened condemnation or
taking affecting the Premises or the Building.
12
(b) If all or any portion of the Premises shall be condemned or
taken for governmental occupancy for a limited period, this Lease shall not
terminate and Landlord shall be entitled to receive the entire amount of any
such award or payment thereof as damages, rent or otherwise. Tenant hereby
assigns to Landlord any award which may be made in such temporary taking,
together with any and all rights of Tenant now or hereafter arising in or to
the same or any part thereof. Tenant shall be entitled to receive an
abatement of Base Rent in proportion to the reduction in the size of the
Premises so taken.
17. ASSIGNMENT AND SUBLETTING:
(a) Tenant shall not permit any part of the Premises to be used
or occupied by any persons other than Tenant and its employees nor shall
Tenant permit any part of the Premises to e used or occupied by any licensee
or concessionaire or permit any persons other than Tenant, its employees and
invitees, to be upon the Premises. Tenant shall not voluntarily, by
operation of law, or otherwise, assign, transfer or encumber this Lease or
any interest herein nor sublet or part with possession of all or any part of
the Premises (any and all of which shall hereinafter be referred to as
"Transfer") without Landlord's prior written consent, which will not be
unreasonably withheld. Any Transfer without the prior written consent of
Landlord shall constitute a default hereunder and shall be void ab initio and
shall confer no rights upon any third party, notwithstanding Landlord's
acceptance of rent payments from any purported transferee. Landlord's
consent to any requested assignment of this Lease or subletting of all or any
part of the Premises shall be subject to the following conditions:
(1) such consent and resulting subletting or assignment
shall not relieve Tenant of its primary obligations hereunder, including the
obligation for payment of all rents due hereunder;
(2) Landlord, at its option and from time to time, may
collect the rent from the subtenant or assignee, and apply the net amount
collected to the rent herein reserved, but no such collection shall be deemed
an acceptance by Landlord of the subtenant or assignee as the tenant hereof,
or a release of Tenant from further performance of covenants on the part of
Tenant herein contained;
(3) any such subtenant or assignee shall be a company or
other entity of good repute, engaged in a business or profession compatible
with and in keeping with the then standards of the Building and financially
capable of performing its obligations with respect to the Premises;
(4) such subtenant or assignee shall assume and agree to
perform all of Tenant's obligations under this Lease insofar as they pertain
to the space so sublet or assigned; and
(5) Tenant is not in default of any term or condition of
this lease at the time it requests Landlord's consent.
(b) In the event of any Transfer of this Lease or all or any part
of the Premises by Tenant, Landlord in addition to any rights contained
herein, shall have the option, at its discretion, to collect and receive the
excess of rent due to Tenant from any sublessee or assignee over the Base
Rent due hereunder. Further, in the event of any Transfer of this Lease of
all or any part of the Premises by Tenant without the prior written consent
of Landlord, Landlord, in addition to any rights contained herein shall have
the following options, at its discretion:
(1) To give Tenant written notice of Landlord's intention to
terminate this Lease on the date such notice is given or on any later date
specified therein, whereupon, on the date specified in such notice, Tenant's
right to possession of the Premises shall cease and this Lease shall
thereupon be terminated, except as to any incompleted obligations of Tenant;
or
(2) To re-enter and take possession of the Premises or the
part thereof subject to such Transfer, and to enforce all rights of Tenant,
and receive and collect all rents and other payments due to Tenant, in
accordance with such sublet or assignment of the Premises, or any part
thereof, as if Landlord was the sublettor or assignor, and to do whatever
Tenant is permitted to do pursuant to the terms of such sublease or
assignment.
13
(c) The sale of all or a majority of the stock of Tenant, if
Tenant is a corporation, or the sale of all or a majority of the ownership
interest in Tenant, if Tenant is a partnership, or the sale of all or
substantially all of the assets of Tenant shall constitute a Transfer for
purposes of this Lease.
(d) At the time of making a request for Landlord's consent to a
Transfer and not less than ten (10) business days prior to the proposed
effective date thereof, Tenant shall provide to Landlord such information as
Landlord, its accountants and attorneys, shall reasonably require with
respect to such proposed Transfer, including but not limited to name and
address of the proposed transferee, description of business operations,
financial information and certificate of corporate authority and good
standing or partnership certificate, as applicable. Landlord must respond
within ten (10) business days or it is deemed to have approved transferee.
(e) Consent of Landlord to a Transfer shall not relieve Tenant
from seeking consent to any subsequent Transfers.
(f) Subletting or assignments by subtenants or assignees shall
not be permitted under any circumstances, nor shall Tenant e permitted to
assign this Lease or sublet all or part of the Premises during any period of
time that all or any portion of the Base Rent is abated. Further, no option
to renew or extend the term of this Lease or to lease additional space, if
any, shall be exercisable by any subtenant or assignor.
(g) All subleases or assignments shall be in writing and a copy
thereof provided to Landlord within ten (10) days of its effective date. All
subleases shall further contain an express provision that in the event of any
default by Tenant under this Lease and upon notice thereof to the subtenant
from Landlord, all rentals payable by the subtenant shall be paid directly to
Landlord, for the Tenant's account, until subsequent notice from Landlord
that such default has been cured. Notwithstanding the foregoing, receipt by
Landlord of rent directly from the subtenant shall not be considered a waiver
of the default on the part of Tenant, nor an acceptance of such subtenant.
18. ESTOPPEL CERTIFICATE: Tenant further agrees at any time and from
time to time on or before ten (10) business days after written request by
landlord, to execute, acknowledge and deliver to Landlord an estoppel
certificate certifying (to the extent it believes the same to be true) that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified, and
stating the modifications), that there have been no defaults thereunder by
Landlord or Tenant (or if there have been defaults, setting forth the nature
thereof), the date to which the rent and other charges have been paid, if
any, that Tenant claims no present charge, lien, claim or offset against
rent, the rent is not prepaid for more than one month in advance and such
other matters as may be reasonably required by Landlord, Landlord's
mortgagee, or any potential purchaser of the Building, it being intended that
any such statement delivered pursuant to this Paragraph may be relied upon by
any prospective purchaser of all or any portion of Landlord's interest
herein, or a holder of any mortgage or deed of trust encumbering any portion
of the Building Complex. Tenant's failure to deliver such statement within
such time shall be a default under this Lease. Notwithstanding the foregoing,
in the event that Tenant does not execute the statement required by this
paragraph, Tenant hereby grants to Landlord a power of attorney coupled with
an interest to act as Tenant's attorney in fact for the purpose of executing
such statement or statements required by this Paragraph.
19. DEFAULT:
(a) The following events (herein referred to as an "event of
default") shall constitute a default by Tenant hereunder;
(1) Tenant shall fail to pay when due any installment of
Base Rent, Additional Rent or any other amounts payable hereunder, and
continues for three (3) days after receipt of written notice from Landlord.
(2) This Lease or the estate of Tenant hereunder shall be
transferred to or pass to or devolve upon any other person or party in
violation of the provisions of this Lease, except as permitted herein;
14
(3) This Lease or the Premises or any part thereof shall be
taken upon execution or by other process of law directed against Tenant, or
shall be taken upon or subject to any attachment at the instance of any
creditor or claimant against Tenant, and said attachment shall not be
discharged or disposed of within fifteen (15) days after the levy thereof;
(4) Tenant shall file a petition in bankruptcy or insolvency
or for reorganization or arrangement under the bankruptcy laws of the United
States or under any insolvency act of any state, or shall voluntarily take
advantage of any such law or act by answer or otherwise, or shall be
dissolved or shall make an assignment for the benefit of creditors;
(5) Involuntary proceedings under any such bankruptcy law or
insolvency act or for the dissolution of Tenant shall be instituted against
Tenant, or a receiver or trustee shall be appointed of all or substantially
all of the property of Tenant, and such proceedings shall not be dismissed or
such receivership or trusteeship vacated within thirty (30) days after such
institution or appointment;
(6) Tenant shall fail to take possession of the Premises
within thirty (30) days of the Commencement Date;
(7) Tenant shall fail to perform any of the other
agreements, terms, covenants and conditions hereof on Tenant's part to be
performed (other than the obligation to pay rent or any other charges payable
hereunder), and such nonperformance shall continue for a period of fifteen
(15) days after written notice thereof by Landlord to Tenant; provided,
however, that if Tenant cannot reasonably cure such nonperformance within
fifteen (15) days, Tenant shall not be in default if it commences cure within
said fifteen (15) days and diligently pursues the same to completion, with
completion occurring in all instances within sixty (60) days;
(8) Tenant shall fail to obtain a release of any mechanic's
lien, as required herein;
(9) All or any substantial part of the personal property of
Tenant is seized, subject to levy or attachment, or similarly repossessed or
removed from the Premises.
(b) Upon the occurrence of an event of default, Landlord shall
have the right, at its election, then or at any time thereafter and while any
such event of default shall continue, either;
(1) To give Tenant written notice of Landlord's intention to
terminate this Lease on the date such notice is given or on any later date
specified therein, whereupon, on the date specified in such notice, Tenant's
rights to possession of the Premises shall cease and this Lease shall
thereupon be terminated; provided, however, that if Tenant's default is by
reason of Tenant's failure to pay Base Rent, Additional Rent or any other
amounts payable hereunder, or Tenant's failure to pay Base Rent, Additional
Rent or any other amounts payable hereunder, or Tenant's violation of
paragraph 17 hereof, then all of Tenant's obligations, including but not
limited to, the amount of Base Rent and other obligations reserved in this
Lease for the balance of the term hereof, shall immediately be accelerated
and due and payable.
(2) To re-enter and take possession of the Premises or any
part thereof and repossess the same as Landlord's former estate and expel
Tenant and those claming through or under Tenant, and remove the effects of
both or either, using such force for such purposes as may be reasonably
necessary, without being liable for prosecution thereof, without being deemed
guilty of any manner of trespass and without prejudice to any remedies for
arrears of rent or preceding breach of covenants or conditions. Should
Landlord elect to re-enter the Premises as provided in this Paragraph
19(b)(2) or should Landlord take possession pursuant to legal proceedings or
pursuant to any notice provided for by law, Landlord may, from time to time,
without terminating this Lease, relet the Premises or any part thereof in
Landlord's or Tenant's name, but for the amount of Tenant, for such term or
terms (which may be greater or less than the period which would otherwise
have constituted the balance of the terms of this Lease) and on such
conditions and upon such other terms (which may include concessions of free
rent and alteration and repair of the Premises) as Landlord, in its
discretion, may determine, and Landlord may collect and receive the rents
therefor. Landlord shall in no way be responsible or liable for any
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failure to relet the Premises or any part thereof or for any failure to
collect any rent due upon such reletting. No such re-entry or taking
possession of the Premises by Landlord shall be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such
intention be given to Tenant. No notice from Landlord hereunder or under a
forcible entry and detainer statute or similar law shall constitute an election
by Landlord to terminate this Lease unless such notice specifically so states.
Landlord reserves the right following any such re-entry and/or reletting, to
exercise its right to terminate this Lease by giving Tenant such written notice,
in which event, this Lease will terminate as specified in said notice.
(c) In the event that Landlord does not elect to terminate this
Lease as permitted in Paragraph 19(b)(1) hereof, but on the contrary, elects
to take possession as provided in Paragraph 19(b)(2), Tenant shall pay to
Landlord (i) the rent and other sums as herein provided, which would be
payable hereunder if such repossession had not occurred, less (ii) the net
proceeds, if any, of any reletting, including but without limitation, all
repossession costs, brokerage commissions, legal expenses, attorneys' fees,
expenses of employees, alteration and repair costs and expenses of
preparation for such reletting. If, in connection with any reletting, the
new lease term extends beyond the existing term, or the premises covered
thereby include other premises not part of the Premises, a fair apportionment
of rent received from such reletting and the expenses incurred in connection
therewith as provided aforesaid will be made in determining the net proceeds
from such reletting. Tenant shall pay such rent and other sums to Landlord
monthly on the days on which the rent would have been payable hereunder if
possession had not been retaken.
(d) In the event this Lease is terminated, Landlord shall be
entitled to recover forthwith against Tenant as damages for loss of the
bargain and not as a penalty, an aggregate sum which, at the time of such
termination of this Lease, represents the excess, if any, of the aggregate of
the rent and all other sums payable by Tenant hereunder that would have
accrued for the balance of the term over the aggregate rental value of the
Premises (such rental value to be computed on the basis of tenant paying not
only a rent to Landlord for the use and occupation of the Premises, but also
such other charges as are required to be paid by Tenant under the terms of
this Lease) for the balance of such term , both discounted to present worth
at the rate of eight percent (8%) per annum. Alternatively, at Landlord's
option, Tenant shall remain liable to Landlord for damages in an amount equal
to the rent and other sums arising under the Lease for the balance of the
term had the Lease not been terminated, less the net proceeds, if any, from
any subsequent reletting, after deducting all expenses associated therewith
and as listed in subparagraph 19(c) above. Landlord shall be entitled to
receipt of such amounts from Tenant monthly on the days on which such sums
would have otherwise been payable.
(e) Suit or suits for the recovery of the amounts and damages set
forth above may be brought by Landlord, from time to time, at Landlord's
election and nothing herein shall be deemed to require Landlord to await the
date whereupon this Lease or the term hereof, would have expired had there
been no such default by Tenant or no such termination, as the case may be.
(f) After an event of default by Tenant, Landlord may sue for or
otherwise collect all rents, issues and profits payable under all subleases
on the Premises, including those past due and unpaid.
(g) After an event of default by Tenant, Landlord may without
terminating this Lease, enter upon the Premises, with force if necessary,
without being liable for prosecution of any claim for damages, without being
deemed guilty of any manner of trespass and without prejudice to any other
remedies, and do whatever Tenant is obligated to do under the terms of this
Lease. Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in effecting compliance with the Tenant's obligations under
this Lease; further, Tenant agrees that Landlord shall not be liable for any
damages resulting to Tenant from effecting compliance with Tenant's obligations
under this subparagraph caused by the negligence of Landlord or otherwise.
(h) No failure by Landlord to insist upon the strict performance
of any agreement, term, covenant or condition hereof or to exercise any right
or remedy consequent upon a breach thereof, and no acceptance of full or
partial rent during the continuance of any such breach, shall constitute a
waiver of any such breach of such agreement, term, covenant or condition. No
agreement, term, covenant or condition hereof to be performed or complied
with by Tenant, and no breach thereof, shall be waived, altered or modified
except by
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written instrument executed by Landlord. No waiver of any breach shall
affect or alter this Lease, but each and every agreement, term, covenant and
condition hereof shall continue in full force and effect with respect to any
other then existing or subsequent breach thereof. Notwithstanding any
unilateral termination of this Lease, this Lease shall continue in force and
effect as to any provisions hereof which require observance or performance of
Landlord or Tenant subsequent to termination.
(i) Nothing contained in this Paragraph shall limit or prejudice
the right of Landlord to prove and obtain as liquidated damages in any
bankruptcy, insolvency, receivership, reorganization or dissolution
proceeding, an amount equal to the maximum allowed by any statute or rule of
law governing such proceeding and in affect at the time when such damages are
to be proved, whether or not such amount be greater, equal to or less than
the amounts recoverable, either as damages or rent, referred to in any of the
preceding provisions of this Paragraph.
(j) Any rents or other amounts owing to Landlord hereunder which
are not paid within five (5) days of the date they are due, shall thereafter
bear interest from the due date at a rate equal to the lesser of (i) the
maximum non-usurious rate of interest at which Tenant may legally contract in
the state in which the Premises are located; or (ii) eighteen percent (18%)
per annum ("Interest Rate") until paid. Similarly, any amounts paid by
Landlord to cure any default of Tenant or to perform any obligation of
Tenant, shall, if not repaid by the Tenant within five (5) days of demand by
Landlord, thereafter bear interest from the date paid by Landlord at the
Interest Rate until paid. In addition to the foregoing, Tenant shall pay to
Landlord whenever any Base Rent, Additional Rent or any other sums due
hereunder remain unpaid more than five (5) days thereof, an administrative
charge to compensate Landlord for the costs and expenses associated with
handling a delinquent account equal to ten percent (10%) of the amount due.
Further, in the event of default by Tenant, in addition to all other rights
and remedies, Landlord shall be entitled to receive from Tenant all sums, the
payment of which may previously have been waived or abated by Landlord, or
which may have been paid by Landlord pursuant to any agreement to grant
Tenant a rental abatement or other monetary inducement or concession,
including but not limited to any tenant finish allowance or moving allowance,
together with interest thereon from the date or dates such amounts were paid
by Landlord or would have been due from Tenant but for the abatement, at the
Interest Rate, until paid; it being understood and agreed that such
concession or abatement was made on the condition and basis that Tenant fully
perform all obligations and covenants under the Lease for the entire term.
(k) Each right and remedy provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy provided
for in this Lease now or hereafter existing at law or in equity or by statute
or otherwise, including, but not limited to, suits for injunctive or declaratory
relief and specific performance. The exercise or commencement of the exercise
by Landlord of any one or more of the rights or remedies provided for in this
Lease now or hereafter existing at law or in equity or by statute or otherwise
shall not preclude the simultaneous or subsequent exercise by Landlord of any
or all other rights, or remedies provided for in this Lease, or now or hereafter
existing at law or in equity or by statute or otherwise. All costs incurred by
Landlord in connection with collecting any amounts and damages owing by Tenant
pursuant to the provisions of this Lease or to enforce any provision of this
Lease, including by way of example, but not limitation, reasonable attorneys'
fees from the date any such matter is turned over to an attorney, shall also be
recoverable by Landlord from Tenant. Landlord and Tenant agree that any action
or proceeding arising out of this Lease shall be heard by a court sitting
without a jury and thus hereby waive all rights to a trial by jury.
20. COMPLETION OF PREMISES:
(a) Landlord has agreed to complete the Premises as more fully set
forth in a work letter (the "Work Letter") attached hereto and incorporated
herein an Exhibit D. Other than as set forth in the Work Letter, Landlord
shall have no obligation for the completion of the Premises, and Tenant shall
accept the Premises in its "as is" condition on the Commencement Date. Landlord
shall not have any obligation for the repair or replacement of any portions of
the interior of the Premises, including but not limited to carpeting, draperies,
window coverings wallcoverings or painting, which are damaged or wear out during
the term hereof, regardless of the cause therefor, except as may otherwise be
specifically set forth in this Lease or in Exhibit D-2 attached hereto. If the
Premises are not Ready for Occupancy (as hereafter defined) on the Commencement
Date, unless such delay is caused by Tenant,
17
its agents or employees, the rental obligations hereunder shall not commence
until the Premises are Ready for Occupancy, whereupon, this Lease and all
covenants, conditions and terms hereof shall be in full force and effect; and
the Termination Date hereof shall be postponed as set forth in paragraph
2(b). The postponement of the rent and term herein provided for such period
shall be in full settlement for all claims which Tenant might have by reason
of the Premises not being Ready for Occupancy on the Commencement Date. If
Tenant wishes to take possession of all or any part of the Premises prior to
the date the Premises are Ready for Occupancy, it must first secure the prior
written consent of Landlord and such occupancy shall in no way hinder, delay
or interfere with Landlord's work in completion of the Premises, and in such
event, all terms and provisions of this Lease, including the obligation to
pay rent at a rate equal to the monthly rate provided in Paragraph 3(prorated
accordingly) shall apply. "Ready for Occupancy' as that term is used herein
shall mean the date when all major construction aspects of the Premises and
any remodeling work to be performed by Landlord to the extent agreed to in
the Work Letter are completed although minor items are not completed
(including but not limited to, touch-up plastering or repainting which does
not unreasonably interfere with Tenant's ability to carry on its business in
the Premises). The certificate of the architect (or other representative of
Landlord) in charge of supervising the completion or remodeling of the Premises
shall control conclusively the date upon which the Premises are Ready for
Occupancy. If Landlord is delayed in delivering the Premises to Tenant because
the same are not Ready for Occupancy or due to the failure of a prior occupant
to vacate the same, then the rent and term shall be postponed as hereinabove set
forth, and such postponement shall be in full settlement of all claims which
Tenant may otherwise have by reason of the delay of delivery.
(b) Landlord, at its sole option, may allow Tenant to enter into
the Premises for the purpose of installing furniture, fixtures and equipment
and other leasehold improvements, including, but not limited to, wall and
floor coverings, millwork and draperies, subject to the terms of the Work
Letter prior to the Commencement Date at its sole risk and with no obligation
to pay rent provided that such entry and work do not unreasonably interfere
in any way with the performance of Landlord's work or other workers in and
about the Building. At any time during such period of early entry, if
Landlord notifies Tenant that Tenant's entry or work is interfering with or
delaying the performance of work to be performed by Landlord or other workers
in and about the Building, or causing any disruption whatsoever, Tenant shall
forthwith discontinue any further work and shall vacate the Premises, and
shall cause its workmen or contractors to remove therefrom, any equipment,
materials or installations which are the subject of Landlord's notice.
21. REMOVAL OF TENANT'S PROPERTY: All movable furniture and personal
effects of Tenant not removed from the Premises upon the vacation or abandonment
thereof or upon the termination of this Lease for any cause whatsoever shall
conclusively be deemed to have been abandoned and may be appropriated, sold,
stored, destroyed or otherwise disposed of by Landlord without notice to Tenant
and without obligation to account therefor, and Tenant shall reimburse Landlord
for all expenses incurred in connection with the disposition of such property.
22. HOLDING OVER: Should Tenant hold over after the termination of
this Lease without Landlord's consent, Tenant shall be deemed a holdover
tenant at will. During such holdover period, Tenant shall be liable for all
damages incurred by Landlord as a result of Tenant's withholding of the
Premises. Should Tenant holdover after the termination of this Lease, with
Landlord's consent, Tenant shall become a tenant from month to month only
upon each and all of the terms herein provided as may be applicable to "such
month to month tenancy and any such holding over shall not constitute an
extension of this Lease. During such holding over, without Landlord's consent,
Tenant shall pay monthly rent equal to one hundred fifty percent (150%) of the
last monthly rental rate plus all other monetary charges as provided herein.
Such tenancy shall continue until terminated by Landlord, beginning with 30 days
written notice, as provided by law, or until Tenant shall have given to Landlord
at least thirty (30) days written notice prior to the last day of the calendar
month intended as the date of termination of such month to month tenancy.
23. PARKING AND COMMON AREAS: Tenant shall have the right to elect to
rent up to one (1) parking space for every one thousand (1,000) square feet
of the Premises on a rentable basis in the parking area or under the Building
as shown on Exhibit E attached hereto and incorporated herein by this
reference during the Primary Lease Term at no charge. Such spaces shall be
located as designated by Landlord. Landlord shall have the right, without
obligation, and from time to time, to change the number, size, location,
shape and arrangement of parking areas and
18
other common areas, restrict parking of tenants or other guests to designated
areas, designate loading or handicap loading areas, change the level or grade
of parking and to charge for all parking or any portion thereof. Except as
otherwise specifically provided herein, all access roads, courtyards and
other areas, facilities or improvements furnished by Landlord are for the
general and nonexclusive use in common of all tenants of the Building, and
those persons invited upon the land upon which the Building is situated and
shall be subject to the exclusive control and management of Landlord, and
Landlord shall have the right, without obligation to establish, modify and
enforce such rules and regulations, which the Landlord may deem reasonable
and/or necessary. Unless as otherwise provided, Tenant's use of the parking
area, as herein set forth, shall be in common with other tenants of the
Building and any other parties permitted by Landlord to use the parking area.
The parking rights herein granted shall not be deemed a lease but shall be
construed as a license granted by Landlord to Tenant for the term of this
Lease.
24. SURRENDER AND NOTICE: Upon the expiration or earlier termination
of this Lease, Tenant shall promptly quit and surrender to Landlord the
Premises broom clean, in good order and condition, ordinary wear and tear and
loss by fire or other casualty excepted, and Tenant shall remove all of its
movable furniture and other effects and such alterations, additions and
improvements pursuant to Paragraph 10 hereof. In the event Tenant fails to
so vacate the Premises on a timely basis as required, Tenant shall be
responsible to Landlord for all costs and damages, including but not limited
to any amounts required to be paid to third parties who were to have occupied
the Premises, incurred by Landlord as a result of such failure, plus interest
thereon at the Interest Rate on all amounts not paid by Tenant within five
(5) days of demand, until paid in full.
25. ACCEPTANCE OF PREMISES BY TENANT: Taking possession of the
Premises by Tenant shall be conclusive evidence as against Tenant that the
Premises were in the condition agreed upon between Landlord and Tenant, and
acknowledgment of satisfactory completion of the fix-up work which Landlord
has agreed in writing to perform, except as otherwise set forth herein,
subject to Punch List or missing panels and ceiling tiles.
26. SUBORDINATION AND ATTORNMENT:
(a) This Lease, and all rights of Tenant hereunder, are and shall
be subject and subordinate in all respects to all present and future ground
leases, overriding leases and underlying leases and/or grants of term of the
real property and/or the Building or the Building Complex now or hereafter
existing and to all deeds of trust, mortgages and building loan agreements,
including leasehold mortgages and building loan agreements, which may now or
hereafter affect the Building or the Building Complex or any of such leases,
whether or not such deeds of trust or mortgages shall also cover other lands
or buildings, to each and every advance made or hereafter to be made under
such deeds of trust or mortgages, and to all renewals, modifications,
replacements and extension of such leases, deeds of trust and mortgages. The
provisions of this Paragraph shall be self-operative and no further
instrument of subordination shall be required. However, in confirmation of
such subordination, Tenant shall promptly execute and deliver to Landlord (or
such other party so designated by Landlord) at Tenant's own cost and expense,
within five (5) days after request from Landlord an instrument, in recordable
form if required, that Landlord, the lessor of any such lease or the holder
of any such deed of trust or mortgage or any of their respective successors
in interest or assigns may request evidencing such subordination. Failure by
Tenant to comply with the requirements of this Paragraph shall be a default
hereunder. Notwithstanding the foregoing, in the event that Tenant does not
execute such documents as may be required to confirm the subordination set
forth in this Paragraph, Tenant hereby grants to Landlord a power of attorney
coupled with an interest to act as Tenant's attorney in fact for the purpose
of executing whatever documents are necessary to evidence such subordination.
The leases to which this lease is, at the time referred to, subject and
subordinate pursuant to this Paragraph are hereinafter sometimes called
"superior leases" and the deeds of trust or mortgages to which this Lease is,
at the time referred to, subject and subordinate are hereinafter sometimes
called "superior deeds of trust" or "superior mortgages". The lessor of a
superior lease or the beneficiary of a superior deed of trust or superior
mortgage or their successors in interest or assigns are hereinafter sometimes
collectively referred to as a "superior party". Notwithstanding the
foregoing, upon Tenant's request, Landlord agrees to request such superior
party grant to Tenant a non-disturbance agreement in the form then being used
by such superior party for such purposes, providing that Tenant,
notwithstanding a default by Landlord, shall be entitled to remain in
possession of the Premises in accordance with the terms of this Lease for so
long as Tenant shall not be in default of any term, condition or covenant of
this Lease. Further, Tenant shall attorn to such superior party.
19
(b) Tenant shall take no steps to terminate this Lease, without
giving written notice to such superior party, and a reasonable opportunity to
cure (without such superior party being obligated to cure), any default on
the part of Landlord under this Lease, provided Landlord has given Tenant the
name and address of such party(ies).
(c) If, in connection with the procurement, continuation or
renewal of any financing for which the Building or the Building Complex or of
which the interest of the lessee therein under a superior lease represents
collateral in whole or in part, a lender shall request reasonable
modifications of this Lease as a condition of such financing, Tenant will not
unreasonably withhold its consent thereto provided that such modifications do
not increase the obligations of Tenant under this Lease or adversely affect
any rights of Tenant or decrease the obligations of Landlord under this Lease.
27. PAYMENTS AFTER TERMINATION: No payments of money by Tenant to
Landlord after the termination of this Lease, in any manner, or after giving
of any notice (other than a demand for payment of money) by Landlord to
Tenant, shall reinstate, continue or extend the term of this Lease or affect
any notice given to Tenant prior to the payment of such money, it being
agreed that after the service of notice of the commencement of a suit or
other final judgment granting Landlord possession of the Premises, Landlord
may receive and collect any sums of rent due, or any other sums of money due
under the terms of this Lease or otherwise exercise its rights and remedies
hereunder. The payment of such sums of money, whether as rent or otherwise,
shall not waive said notice or in any manner affect any pending suit or
judgment theretofore obtained.
28. AUTHORITIES FOR ACTION AND NOTICE:
(a) Except as otherwise provided herein, Landlord may, for any
matter pertaining to this Lease, act by and through its Building manager or
any other person designated in writing from time to time.
(b) All notions or demands required or permitted to be given to
Landlord hereunder shall be in writing, and shall be served by hand delivery
or by deposit in the United States mail, with proper postage prepaid,
certified or registered, return receipt requested, addressed as follows:
150 W. John Carpenter Freeway
Suite 150, Irving, Texas 75039
With a copy to:
3300 East First Avenue
Suite 390, Denver Colorado 80206
All notices or demands or permitted to be given to Tenant hereunder shall be
in writing and shall be served by hand delivery or by deposit in the United
States Mail, with proper postage prepaid, certified or registered, return
receipt requested, addressed to Tenant at the Premises.
With a copy to:
150 W. John Carpenter Freeway
Suite 100, Irving, Texas 75039
Either party shall have the right to designate in writing, served as above
provided, a different address to which notice is to be provided. All notices
or demands shall be deemed served on the day of delivery if hand delivered,
or three (3) days after deposit in the U.S. Mail, if sent by registered or
certified mail. The foregoing shall in no event prohibit notice from being
given as provided by the federal or state Rules of Civil Procedure, as the
same may be amended from time to time.
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29. LIABILITY OF LANDLORD: Landlord's liability under this Lease
shall be limited to Landlord's estate and interest in the Building (or to the
proceeds thereof) and no other property or other assets of Landlord or its
partners (if Landlord is a partnership, agents, employees, legal
representatives, successors or assigns, shall be subject to levy, execution
or other enforcement procedure for the satisfaction of Tenant's remedies
under or with respect to this Lease, the relationship of Landlord and Tenant
hereunder or Tenant's use and occupancy of the Premises. Nothing contained
in this Paragraph shall be construed to permit Tenant to offset against rents
due a successor landlord, a judgment (or other judicial process) requiring
the payment of money by reason of any default of a prior landlord, except as
otherwise specifically set forth herein.
30. BROKERAGE: Tenant represents and warrants that it has dealt only
with Rob Neblett/Michael Stevens Properties (the "Broker") in the negotiation
of this Lease. Landlord shall make payment of the brokerage fee due to the
Broker pursuant to and in accordance with Landlord's separate agreement with
the Broker. Tenant hereby agrees to indemnify and hold the Landlord harmless
of and from any and all loss, costs, damages or expenses (including, without
limitation, all attorneys' fees and disbursements) by reason of any claim of
or liability to any other broker or person claiming through Tenant and
arising out of or in connection with the negotiation, execution and delivery
of this Lease. Additionally, Tenant acknowledges and agrees that Landlord
shall have no obligation for payment of any brokerage fee or similar
compensation to any person with whom Tenant has dealt or may in the future
deal with respect to this Lease. In the event any claim shall be made
against Landlord by any other broker who shall claim to have negotiated this
Lease on behalf of Tenant or to have introduced Tenant to the Building or to
Landlord, Tenant shall be liable for payment of all reasonable attorneys'
fees, costs and expenses incurred by Landlord in defending against the same,
and in the event such broker shall be successful in any such action, Tenant
shall, in addition, make payment to such Broker.
31. TAXES:
(a) Tenant shall be liable for and shall pay at least ten (10)
days before delinquency and Tenant hereby agrees to indemnify and hold
Landlord harmless from and against all liability in connection with, all
taxes levied against any personal property, fixtures, machinery, equipment,
apparatus, systems and appurtenances placed by or on behalf of Tenant in or
about or "utilized by Tenant in, upon or in connection with the Premises
("Equipment Taxes"). If any Equipment Taxes are levied against Landlord or
Landlord's property or if the assessed value of Landlord's property is
increased by the inclusion therein of a value placed upon such personal
property, fixtures, machinery, equipment, apparatus, systems or appurtenances
of Tenant, and if Landlord, after written notice to Tenant, pays the
Equipment Taxes or taxes based upon such an increased assessment (which
Landlord shall have the right to do regardless of the validity of such levy,
but under proper protest if requested by Tenant prior to such payment and if
payment under protest is permissible), Tenant shall pay to Landlord upon
demand, as Additional Rent hereunder, the taxes so levied against Landlord or
the proportion of such taxes resulting from such increase in the assessment;
provided, however, that in any such event, Tenant shall have the right, on
behalf of Landlord and with Landlord's full cooperation, but at no cost to
Landlord, to bring suit in any court of competent jurisdiction to recover the
amount of any such tax so paid under protest, and any amount so recovered
shall belong to Tenant (provided Tenant has previously paid such amount to
Landlord). Notwithstanding the foregoing to the contrary, Tenant shall
cooperate with Landlord to the extent reasonably necessary to cause the
fixtures, furnishings, equipment and other personal property to be assessed
and billed separately from the real property of which the Premises form a
part, and Landlord shall use reasonable efforts to treat all other Tenants on
the same basis.
(b) Tenant shall pay to Landlord, as Additional Rent, any excise,
sales, privilege or other tax, assessment or levied by any governmental or
quasi-governmental authority or agency upon Landlord on account of this
Lease, the rent or other payments made by Tenant hereunder, any other benefit
received by Landlord hereunder, Landlord's business as a lessor hereunder, or
other in respect of or as a result of the agreement or relationship of
Landlord and Tenant hereunder.
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32. RIGHTS RESERVED TO LANDLORD:
(a) All portions of the Building are reserved to Landlord except the
Premises and the inside surfaces of all walls, windows and doors bounding in the
Premises, but including exterior building walls, core corridor walls and doors
and any core corridor entrance. Landlord also reserves any space in or adjacent
to the Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts,
electric or other utilities, sinks or other building facilities, and the use
thereof, as well as the right to access thereto through the Premises for the
purposes of operation, maintenance and repair, upon written notice of not less
than twenty-four (24) hours, except in the event of emergencies or apparent
emergencies, when no prior notice shall be required.
(b) Landlord shall have the following rights without liability to
Tenant for damage or injury to property, person or business (all claims for
damage being hereby waived and released), and without effecting an eviction or
disturbance of Tenant's use or possession of the Premises or giving rise to any
claim for setoffs or abatement of rent:
(1) To enter the Premises as more fully provided in this Lease.
(2) To install and maintain signs on the exterior and interior of
the Building, except within the Premises, provided the signs do not block either
completely or partially the exterior windows of the Premises.
(3) To have pass keys to the Premises.
(4) To have access to all mail chutes according to the rules of
the United States Postal Service.
(5) To do or permit to be done any work in or about the exterior
of the Building or any adjacent or nearby building, land, street or alley.
(6) To grant to anyone the exclusive right to conduct any
business or render any service in the Building, provided such exclusive right
shall not operate to exclude Tenant from the use expressly permitted by this
Lease.
33. FORCE MAJEURE CLAUSE: Wherever there is provided in this Lease a time
limitation for performance by Landlord of any obligation, including but not
limited to obligations related to construction, repair, maintenance or service,
the time provided for shall be extended for as long as and to the extent that
delay in compliance with such limitation is due to an act of God, governmental
control or other factors beyond the reasonable control of Landlord.
34. SIGNAGE:
(a) No sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the inside or outside of the Building unless of such
color, size and style and in such place upon or in the Building as shall be
first, designated by Landlord, but there shall be no obligation or duty on
Landlord to allow any sign, advertisement or notice to be inscribed, painted or
affixed on any part of the inside or outside of the Building. A directory in a
conspicuous place, with the names of Tenant, not to exceed one (1) name(s),
shall be provided by Landlord on a one time basis. Any necessary revision to
such directory shall be made by Landlord, at Tenant's expense, within a
reasonable time after written notice from Tenant of the change making the
revision necessary. Landlord shall have the right to remove all nonpermitted
signs without notice to Tenant and at the expense of Tenant, Landlord will allow
Tenant to erect building mounted signage. All signage is subject to approval by
Landlord and the Las Colinas Architectural Control Committee.
(b) Tenant shall only be permitted to install building standard signs
and logos, subject to Landlord's prior written consent and criteria as to size,
design, materials and location.
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35. ATTORNEYS' FEES: In the event of any dispute hereunder, or any default
in the performance of any term or condition of this Lease, the prevailing party
shall be entitled to recover all costs and expenses associated therewith,
including reasonable attorneys' fees.
36. HAZARDOUS MATERIALS:
(a) Tenant shall (i) not cause or permit any Hazardous Material to be
brought upon, kept, or used in or about the Premises by Tenant, its agents,
employees, contractors, licensees or invitees, without the prior written consent
of Landlord (which Landlord shall not unreasonably withhold as long as Tenant
demonstrates to Landlord's reasonable satisfaction that such Hazardous Material
is necessary or useful to Tenant's business and will be used, kept and stored in
a manner that complies with all laws regulating any such Hazardous Material so
brought upon or used or kept in or about the Premises). If Tenant breaches the
obligations stated in the preceding sentence, or if the presence of Hazardous
Material on the Premises caused or permitted by Tenant results in contamination
of the Premises or Building Complex by Hazardous Material otherwise occurs for
which Tenant is legally liable to Landlord for damage resulting therefrom, then
Tenant shall indemnify, defend and hold Landlord, its agents, employees, legal
representatives, successors and assigns, harmless from any and all claims,
judgments, damages, penalties, fines, costs, liabilities, or losses (including,
without limitation, diminution in value of the Premises and Building Complex,
damages for the loss or restriction on use of any rentable or usable space or of
any amenity of the Premises or Building Complex, damages arising from any
adverse impact on marketing of space in the Building, and sums paid in
settlement of claims, attorneys' fees, consultant fees and expert fees) which
arise during or after the Lease term as a result of such contamination. This
indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any cleanup,
remedial, removal or restoration work required by any federal, state, or local
governmental agency or political subdivision because of Hazardous Material
present in or about the Building Complex or the soil or ground water on or under
the Building Complex. Without limiting the foregoing, if the presence of any
Hazardous Material on or about the Building Complex caused or permitted by
Tenant results in any contamination of any portion thereof, Tenant shall
promptly take all actions at its sole expense as are necessary to return the
Building Complex to the condition existing prior to the introduction of any such
Hazardous Material, subject to obtaining Landlord's prior written consent t the
actions to be taken by Tenant. Landlord may properly require its consent to the
selection of the contractors and other experts involved in the inspection,
testing and removal or abatement activities, the scope of activities to be
performed, the manner and method for performance of such activities, and such
other matters as may be required or requested by Landlord for the safety of and
continued use of the Building Complex and all occupants thereof. The
obligations and liabilities of Tenant herein shall survive expiration or
termination of this Lease.
(b) "Hazardous Material", as used in this Lease, shall be construed in
its broadest sense and shall include asbestos, other asbestotic material (which
is currently or may be designated in the future as a Hazardous Mateiral0, any
petroleum base products, pesticides, paints and solvents, polychlorinated
biphenyl, lead, cyanide, DDT, acids, ammonium compounds and other chemical
products (excluding commercially used cleaning materials in ordinary quantities)
and any substances or material if defined or designated as a hazardous or toxic
substance, or other similar term, by any federal, state or local law, statute,
regulation, or ordinance affecting the Building Complex or Premises presently in
effect or that may be promulgated in the future, as such statutes, regulations
and ordinances may be amended from time to time.
37. BANKRUPTCY OR INSOLVENCY: If the Tenant becomes a debtor under Chapter
7 of the United States Bankruptcy Code, or in the event that a petition for
reorganization or adjustment of debts is filed concerning the Tenant under
Chapter 11 or Chapter 13 of the Bankruptcy Code, or a proceeding filed under
Chapter 7 is transferred to Chapter 11 or 13, the Trustee or the Tenant, as
Debtor-in-Possession, shall be deemed to have rejected this Lease. No election
by the Trustee or Debtor-in-Possession to assume this Lease shall be effective
unless each of the following conditions, which Landlord and Tenant hereby
acknowledge to be commercially reasonable in the context of a bankruptcy
proceeding, has been satisfied, and the Landlord has so acknowledged in writing:
(a) The Trustee or Debtor-in-Possession has cured, or has provided the
Landlord "adequate assurance" (as hereinafter defined) that from the date of
such assumption, the Trustee or Debtor-in-Possession will promptly cure all
monetary and non-monetary defaults under this Lease.
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(b) The Trustee or Debtor-in-Possession has compensated, or has
provided to the Landlord adequate assurance that within ten (10) days of the
date of assumption, the Landlord will be compensated, for any pecuniary loss
incurred by the Landlord arising from default of the Tenant, the Trustee or the
Debtor-in-Possession as recited in the Landlord's written statement of pecuniary
loss sent to the Trustee or Debtor-in-Possession.
(c) The Trustee or Debtor-in-Possession has provided the Landlord with
adequate assurance of future performance of each of the Tenant's, the Trustee's,
or Debtor-in-Possession's obligations under this Lease; provided, however that:
(1) The Trustee or Debtor-in-Possession shall also deposit with
the Landlord, as security for the timely payment of rent and other sums due
hereunder, an amount equal to three months Base Rent, Additional Rent and other
monetary charges accruing under this Lease; and
(2) The obligations imposed upon the Trustee or Debtor-in-
Possession shall continue with respect to the Tenant or any assignee of this
Lease after the completion of the bankruptcy proceedings.
(d) For purposes of this Paragraph, Landlord and Tenant acknowledge
that, in the context of the bankruptcy proceeding of the Tenant, at a minimum,
"adequate assurance" shall mean:
(1) The Trustee or Debtor-in-Possession will continue to have
sufficient unencumbered assets after the payment of all secured, obligations and
administrative expenses to assure the Landlord that the Trustee or Debtor-in-
Possession will have sufficient funds to fulfill all of the obligations of
Tenant under this Lease; or
(2) The Bankruptcy Court shall have entered an order aggregating
sufficient cash payable to the Landlord, and the Trustee or Debtor-in-Possession
shall have granted to the Landlord, a valid and perfected first lien and
security interest or mortgage in property of the Tenant, the Trustee or Debtor-
in-Possession, acceptable as to value and kind to the Landlord, in order to
secure to the Landlord the obligation of the Tenant, Trustee or Debtor-in-
Possession to cure the monetary or non-monetary defaults under the Lease within
the time period set forth above.
(e) The following conditions shall apply to any assignment of this
Lease in Bankruptcy Proceedings:
(1) If the Trustee or Debtor-in-Possession has assumed this
Lease and elects to assign the Lease to any other person, such interest or
estate of Tenant in this Lease may be so assigned only if the Landlord has
acknowledged in writing that the intended assignee can provide to the
Landlord "adequate assurance of future performance" (as hereinafter defined)
of all of the terms, covenants and conditions of this Lease to be performed
by the Tenant.
(2) For the purposes of this provision, Landlord and Tenant
acknowledge that, in the context of a bankruptcy proceeding, at a minimum
"adequate assurance of future performance" shall mean that each of the following
conditions has been satisfied, and the Landlord has so acknowledged in writing:
A. The proposed assignee has submitted a current financial
statement audited by a "Certified Public Accountant which shows the net worth
and working capital and amounts determined by Landlord to be sufficient to
assure the future performance by such assignee of all of Tenant's obligations
under this Lease;
B. The proposed assignee, if requested by the Landlord,
shall have obtained guarantees in form and substance satisfactory to the
Landlord from one or more persons who satisfy the Landlord's standards of
creditworthiness;
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C. The Landlord has obtained all consents or waivers from
any third party required under any lease, mortgage, financing arrangement, or
other agreement by which the Landlord is bound, in order to permit the
Landlord to consent to such assignment.
38. MISCELLANEOUS:
(a) The rules and regulations attached hereto as Exhibit F, as well as
such rules and regulations as may hereafter be adopted by Landlord for the
safety, care and cleanliness of the Premises and the Building and the
preservation of good order thereon are hereby expressly made a part hereof, and
Tenant agrees to obey all such rules and regulations. The violation of any of
such rules and regulations by Tenant shall be deemed a breach of this Lease by
Tenant affording Landlord all the remedies set forth herein. Landlord shall not
be responsible to Tenant for the nonperformance by any other tenant or occupant
of the Building of any of said rules and regulations.
(b) The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners of the Building at the time in question, and in
the event of any transfer or transfers of the title therein, Landlord herein
named (and in the case of any subsequent transfers or conveyances, the then
grantor) shall be automatically released from and after the date of such
transfer or conveyance of all liability in respect to the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed and relating to events occurring thereafter; provided
that any funds in the hands of Landlord or the then grantor at the time of such
transfer in which Tenant has an interest shall be turned over to the grantee,
and any amount then due and payable to Tenant by Landlord or the then grantor
under any provisions of this Leases shall be paid to Tenant.
(c) As used in this Lease, the term "ordinary business hours" shall
mean the hours from 7:00 a.m. to 6:00 p.m., Monday through Friday, and 8:00 a.m.
to 1:00 p.m. on Saturday, except for New year's Day, Presidents' Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and any other
national or state holiday as may be established from time to time ("Holidays").
(d) This Lease shall be construed as though the covenants herein
between Landlord and Tenant are independent and not dependent and Tenant shall
not be entitled to any setoff of the rent or other amounts owing hereunder
against Landlord, if Landlord fails to perform its obligations set forth herein,
except as herein specifically set forth; provided, however, the foregoing shall
in no way impair the right of Tenant to commence a separate action against
Landlord for any violation by Landlord of the provisions hereof so long as
notice is first given to Landlord and any holder of a mortgage or deed of trust
covering the Building Complex or any portion thereof whose address Tenant has
been notified in writing and so long as an opportunity has been granted to
Landlord and such holder to correct such violation as provided in Paragraph
40(h) hereof.
(e) If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby.
(f) The captions of each paragraph are added as a matter of
convenience only and shall be considered of no effect in the construction of
any provision or provisions of this Lease.
(g) Except as herein specifically set forth, all terms, conditions and
covenants to be observed and performed by the parties hereto shall be applicable
to and binding upon their respective heirs, administrators, executors,
successors and assigns. The terms, conditions and covenants hereof shall also
be considered to be covenants running with the land.
(h) Except as otherwise specifically provided herein, in the event
Landlord shall fail to perform any of the agreements, terms, covenants or
conditions hereof on Landlord's part to be performed, and such nonperformance
shall continue for a period of thirty (30) days after written notice thereof,
from Tenant to Landlord, or if such performance cannot be reasonably had within
such thirty (30) day period, and Landlord shall not in good
25
faith have commenced such performance within such thirty (30) day period and
proceed therewith to completion, it shall be considered a default of Landlord
under this Lease. Tenant shall give written notice to Landlord in the matter
herein set forth and shall afford Landlord a reasonable opportunity to cure
any such default. In addition, Tenant shall send notice of such default by
certified or registered mail, with proper postage prepaid, to the holder of
any mortgages or deeds of trust covering the Building Complex or any portion
thereof of whose address Tenant has been notified in writing and shall afford
such holder a reasonable opportunity to cure any alleged default on
Landlord's behalf.
(i) If there is more than one entity or person which or who are the
Tenants under this Lease, the obligations imposed upon Tenant under this Lease
shall be joint and several.
(j) No act or thing done by Landlord or Landlord's agent during the
term hereof, including but not limited to any agreement to accept surrender of
the Premises or to amend or modify this Lease, shall be deemed to be binding
upon Landlord unless such act or things shall be by an officer of Landlord or a
party designated in writing by Landlord as so authorized to act. The delivery
of keys to Landlord, or Landlord's agent, employees or officers shall not
operate as a termination of this Lease or a surrender of the Premises. No
payment by Tenant or receipt by Landlord of a lessor amount than the monthly
rent herein stipulated shall be deemed to be other than on account of the
earliest stipulated rent, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as rent be deemed an accord and
satisfaction and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
available to Landlord.
(k) Landlord shall have the right to construct other buildings or
improvements in any common area, or any other area designated by Landlord for
use by tenants or to change the location, character or make alterations of or
additions to any of said common areas or other areas. Landlord, during the
entire term of this Lease, shall have the right to change the number and name of
the Building at any time without liability to Tenant, if so ordered by
governmental authority.
(l) Tenant acknowledges and agrees that it has not relied upon any
statements, representations, agreements or warranties, except such as are
expressed in this Lease.
(m) Notwithstanding anything to the contrary contained herein,
Landlord's liability under this Lease shall be limited to its interests in this
building.
(n) Time is of the essence hereof.
(o) Tenant and Landlord and the party executing this Lease on
behalf of each of them represent to each other that such party is authorized
to do so by requisite action of the board of directors or partners, as the
case may be, and agree upon request to deliver to each other a resolution or
similar document to that effect.
(p) This Lease shall be governed by and construed in accordance with
the laws of the State where the Premises are located.
(q) This Lease, together with the exhibits attached hereto, contains
the entire agreement of the parties and may not be amended or modified in any
manner except by an instrument in writing signed by both parties. Tenant shall
not record this Lease or a memorandum hereof.
(r) Tenant shall not use the name of the Building, the Building
Complex or the development in which the Building is situated as part of its
legal or trade name, nor for any purpose other than as an address for the
business to be conducted by Tenant in the Premises.
(s) In the event Landlord makes available to Tenant and its employees
any area of the Building Complex for use as an athletic/health facility, Tenant
agrees, on behalf of itself and its employees, that
26
Landlord shall have no liability for any damages or injuries incurred by any
person as a result of the use of such facility.
(t) The submission or delivery of this document for examination and
review does not constitute an option, an offer to lease space in the Building or
an agreement to lease. This document shall have no binding effect on the
parties unless and until executed by both Landlord and Tenant.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day
and year first above written.
LANDLORD:
COSCAN COMMERCIAL PROPERTIES, INC.,
a Colorado corporation
By:
---------------------------------
Title
-------------------------------
By:
---------------------------------
Title
-------------------------------
TENANT:
INTERNATIONAL RETAIL SYSTEMS, INC.
------------------------------------
a
-----------------------------------
ATTEST:
By: By:
------------------------------ ---------------------------------
Title: Title:
--------------------------- ------------------------------
28
LANDLORD NOTARY
STATE OF COLORADO )
)
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ____ day of
_________, 1997, by _______________________________ as ____________ of COSCAN
COMMERCIAL PROPERTIES, INC., a Colorado corporation.
Witness my hand and official seal
My Commission expires: ______________.
------------------------------
Notary Public
STATE OF COLORADO )
)
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ____ day of
_________, 1997, by _______________________________ as ____________ of COSCAN
COMMERCIAL PROPERTIES, INC., a Colorado corporation.
Witness my hand and official seal
My Commission expires: ______________.
------------------------------
Notary Public
TENANT NOTARY
STATE OF _________ )
)
COUNTY OF _______ )
The foregoing instrument was acknowledged before me this ____ day of
_________, 1997, by _______________________________ as ________________ of
_______________________________, a __________________________________.
Witness my hand and official seal
My Commission expires: ______________.
------------------------------
Notary Public
29