Colorado-Englewood-5295 DTC Parkway Single Tenant Building Lease - Justus Realty LP and Accelerated Bureau of Collections Inc.
SINGLE TENANT BUILDING LEASE
BETWEEN
JUSTUS REALTY LIMITED PARTNERSHIP,
A COLORADO PARTNERSHIP (LANDLORD)
AND
ACCELERATED BUREAU OF COLLECTIONS, INC.,
A COLORADO CORPORATION (TENANT)
DATE: JUNE 1, 1997
TABLE OF CONTENTS
1. AGREEMENT ...............................................................1
2. PREMISES ................................................................1
3. TERM ....................................................................1
(a) Initial Term .......................................................1
(b) Option to Extend ...................................................1
4. RENT ....................................................................1
(a) Base Rent ..........................................................1
(b) Square Footage .....................................................2
(c) Adjustment to Base Rent ............................................2
5. TAXES ...................................................................2
(a) Obligation for Payment .............................................2
(b) Taxes Payable in Installments ......................................3
(c) Taxes for Period Other Than Term ...................................3
(d) Other Impositions ..................................................3
(e) Right to Contest Taxes .............................................3
(f) Estimated Payments .................................................4
(g) Final Settlement ...................................................4
6. UTILITIES ...............................................................4
7. INSURANCE ...............................................................5
(a) "All-Risk" Coverage ................................................5
(b) General Liability ..................................................5
(c) Other Matters ......................................................5
(d) Additional Insureds ................................................6
(e) Waiver .............................................................6
8. USE .....................................................................6
9. COMPLIANCE WITH LAWS (GENERALLY .........................................6
(a) Tenant's Obligations ...............................................6
(b) Tenant's Obligations with Respect to
Environmental Laws .................................................7
(c) Right to Contest Laws ..............................................9
10. ASSIGNMENTS AND SUBLEASES .............................................10
11. SIGNS .................................................................10
12. REPAIRS AND MAINTENANCE ..............................................10
13. ALTERATIONS ...........................................................10
14. END OF TERM ...........................................................11
15. DAMAGE AND DESTRUCTION ................................................11
(a) General ...........................................................11
(b) Landlord's Inspection .............................................12
(c) Landlord's Costs ..................................................13
(d) No Rent Abatement .................................................13
(e) Damage During Last Three Years ....................................13
16. CONDEMNATION ..........................................................13
(a) Total Taking ......................................................13
(b) Partial Taking ....................................................13
(c) Tenant's Award ....................................................14
(d) Allocation of an Award for a Total Taking .........................14
17. SUBORDINATION; ENCUMBRANCES ...........................................15
(a) General ...........................................................15
(b) Attornment ........................................................15
(c) Encumbrances ......................................................15
18. LANDLORD'S ACCESS .....................................................16
19. INDEMNIFICATION, WAIVER AND RELEASE ...................................16
(a) Indemnification ...................................................16
(b) Waiver and Release ................................................17
20. COVENANT OF QUIET ENJOYMENT ...........................................17
21. LIMITATION ON TENANT'S RECOURSE .......................................17
22. DEFAULT ...............................................................18
(a) Cure ..............................................................18
(b) Events of Default .................................................18
(c) Remedies ..........................................................19
23. ARBITRATION ...........................................................21
24. MISCELLANEOUS .........................................................22
(a) Recordation .......................................................22
(b) Holding Over ......................................................22
(c) Estoppel Certificates .............................................22
(d) No Waiver .........................................................23
(e) Authority .........................................................23
(f) Notices ...........................................................23
(g) Attorneys' Fees ...................................................24
(h) Waiver of Jury Trial ..............................................24
(i) Restrictions ......................................................24
(j) Binding Effect ....................................................24
SINGLE TENANT BUILDING LEASE
THIS SINGLE TENANT BUILDING LEASE is made as of June 1, 1997, by JUSTUS
REALTY LIMITED PARTNERSHIP, a Colorado partnership ("landlord"), and ACCELERATED
BUREAU OF COLLECTIONS, INC., a Colorado corporation ("tenant").
1. AGREEMENT
Landlord leases the premises (as that term is defined in paragraph 2) to
tenant, and tenant leases the premises from landlord, according to this lease.
2. PREMISES
The premises are the land and building commonly known as 5295 DTC Parkway,
City of Englewood, County of Arapahoe, State of Colorado, and more particularly
described as:
See Exhibit A attached hereto.
The premises include the heating, ventilating, and air conditioning systems and
the mechanical, electrical, and plumbing systems serving the premises, and the
use of 60 parking spaces located in front of and behind the building.
3. TERM
(a) Initial Term. The term of this lease will be five years, beginning on
June 1, 1997, and expiring on May 31, 2002.
(b) Option to Extend. Tenant may extend the term until the fifth
anniversary of the expiration date by written notice of its election to do so
given to landlord at least one year prior to the expiration date. The terms and
conditions of the lease applicable at the expiration date will govern the
extended term; except that, tenant will have no further right to extend the term
and the base rent during the extended term will be an amount to be agreed upon
in writing by landlord and tenant in writing prior to the expiration date.
Tenant will not have any rights under this paragraph 3(b) if (1) an event of
default exists on the expiration date or on the date on which the tenant gives
its notice, or (2) tenant exercises its rights less than one year before the
expiration date.
4. RENT
(a) Base Rent. Tenant will pay landlord $20.00 annually per square foot of
space in the rented premises (the "base rent") in equal consecutive monthly
installments on or before the first day of each month during the term of this
lease. The base rent will be paid in advance at the address specified for
landlord in paragraph 25(f) or such other place as landlord designates, without
prior demand and without any abatement, deduction or setoff. If the commencement
date occurs on a day other than the first day of a calendar month, or if the
expiration date occurs on a day other than the last day of a calendar month,
then the base rent for the fractional month will be prorated on a daily basis.
(b) Square Footage. Tenant and landlord agree that for the purposes of this
lease, the premises contain 16,728 square feet.
(c) Adjustment to Base Rent. On June 1 of each year during the term hereof,
the base rent for the following year shall be adjusted to reflect increases or
decreases in the Consumer Price Index during the period from June 1 through May
31 immediately preceding the adjustment month each year, as follows: the base
rent for the final month of the preceding year shall be multiplied by a number
which is reached by dividing the Consumer Price Index for Denver/Boulder,
Colorado -- All Items, as published by the Bureau of Labor Statistics, U.S.
Department of Labor (the "CPI") figure for said final month by the CPI figure
for the initial month of this lease term, which is expressed formulaically as:
base rent x last month's CPI/initial month's CPI. If the official monthly CPI is
not available for use as a cost-of-living index for the months provided to be
used as a basis for such formula, it is agreed that the CPI as issued and
published for the earliest preceding months should be used in determining such
formula. If, at any time during the term hereof, the U.S. Bureau of Labor
Statistics shall discontinue the issuance of the Bureau of Labor Statistics
Consumer Price Index, the parties shall use any other standard, nationally
recognized cost-of-living index then issued and available, which is published by
the U.S. government.
5. TAXES
(a) Obligation for Payment. Tenant will pay all taxes (collectively the
"tax"), including without limitation real estate and personal property taxes and
assessments assessed, levied, confirmed, or imposed during the term of this
lease, whether or not now customary or within the contemplation of landlord and
tenant:
(1) upon, measured by, or reasonably attributable to the cost or value
of tenant's equipment, furniture, fixtures, and other personal property located
in the premises, or by the cost or value of any leasehold improvements made in
or to the premises by or for tenant, regardless of whether title to the
improvements is in tenant or landlord;
(2) upon or measured by the base rent, including without limitation
any gross receipts tax or excise tax levied by the federal government or any
other governmental body with respect to the receipt of base rent;
(3) upon or with respect to the possession, leasing, operation,
management, maintenance, alteration, repair, use, or occupancy by tenant of the
premises or any portion of the premises;
(4) upon this transaction or any document to which tenant is a party
creating or transferring an interest or an estate in the premises;
(5) upon the premises and all personal property, furniture, fixtures,
and equipment, and all replacements, improvements, or additions to them, whether
owned by landlord or tenant; and
(6) based in whole or in part on a base rent, whether made in addition
to or in substitution for any other tax.
(b) Taxes Payable in Installments. Unless landlord has exercised its rights
under paragraph 5(f) and if, by law, any tax may at the option of the taxpayer
be paid in installments (whether or not interest accrues on the unpaid balance
of the tax), tenant may exercise the option to pay the tax (and any accrued
interest on the unpaid balance of the tax) in installments; in that event,
tenant will pay the installments that become due during the term of this lease
as they become due and before any fine, penalty, further interest, or cost may
be added to them.
(c) Taxes for Period Other Than Term. Any tax, including taxes that have
been converted into installment payments, relating to a fiscal period of the
taxing authority, a part of which period is included within the term and a part
of which is included in a period of time prior to the commencement or after the
end of the term, whether or not such tax or installments are assessed, levied,
confirmed, imposed upon or in respect of, or become a lien upon the premises, or
become payable, during the term, will be adjusted between landlord and tenant as
of the commencement or end of the term, so that tenant will pay that portion of
the tax or installment which the part of the fiscal period included in the term
bears to the fiscal period, and landlord will pay the remainder.
(d) Other Impositions. Tenant will not be obligated to pay local, state, or
federal net income taxes assessed against landlord; local, state, or federal
capital levy of landlord; or sales, excise, franchise, gift, estate, succession,
inheritance, or transfer taxes of landlord.
(e) Right to Contest Taxes. Tenant will have the right to contest the
amount or validity, in whole or in part, of any tax by appropriate proceedings
diligently conducted in good faith, only after paying the tax or posting such
security as landlord may reasonably require in order to protect the premises
against loss or forfeiture. Upon the termination of those proceedings, tenant
will pay the amount of the tax or part of the tax as finally determined, the
payment of which may have been deferred during the prosecution of the
proceedings, together with any costs, fees, interest, penalties, or other
related liabilities. Landlord will not be required to join in any contest or
proceedings unless the provisions of any law or regulations then in effect
require that the proceedings be brought by or in the name of landlord. In that
event, landlord will join in the proceedings or permit them to be brought in its
name; however, landlord will not be subjected to any liability for the payment
of any costs or expenses in connection with any contest or proceedings, and
tenant will indemnify landlord against and save landlord harmless from any of
those costs and expenses.
(f) Estimated Payments. If any lender requires landlord to do so, then, in
each December during the term or as soon after December as practicable, landlord
will give tenant written notice of its estimate of amounts payable under
paragraph 5 for the ensuing calendar year. On or before the first day of each
month during the ensuing calendar year, tenant will pay to landlord one-twelfth
(1/12th) of the estimated amounts; however, if notice is not given in December,
tenant will continue to pay on the basis of the prior year's estimate until the
month after notice is given. If at any time or times it appears to landlord that
the amounts payable under paragraph 5 for the current calendar year will vary
from its estimate by more than ten percent (10%), landlord will, by written
notice to tenant, revise its estimate for the year, and subsequent payments by
tenant for such year will be based upon the revised estimate.
(g) Final Settlement. Within ninety (90) days after the close of each
calendar year or as soon after the ninety-day period as practicable, landlord
will deliver to tenant a statement of amounts payable under paragraph 5 for the
calendar year, prepared by certified public accountants designated by landlord
or prepared by landlord and certified by one of its officers. The certified
statement will be final and binding upon landlord and tenant. If the statement
shows an amount owing by tenant that is less than the estimated payments
previously made by tenant for the calendar year, the statement will be
accompanied by a refund of the excess by landlord to tenant. If the statement
shows an amount owing by tenant that is more than the estimated payments
previously made by tenant for the calendar year, tenant will pay the deficiency
to landlord within thirty (30) days after the delivery of the statement.
6. UTILITIES
Tenant will pay the appropriate suppliers for all water, gas, electricity,
light, heat, telephone, power, and other utilities and communications services
used by tenant on the premises during the term, whether or not the services are
billed directly to tenant. Tenant will also procure, or cause to be procured,
without cost to landlord, any and all necessary permits, licenses, or other
authorizations required for the lawful and proper installation and maintenance
upon the premises of wires, pipes, conduits, tubes, and other equipment and
appliances for use in supplying any of the services to and upon the premises.
Landlord, upon request of tenant, and at the sole expense and liability of
tenant, will join with tenant in any application required for obtaining or
continuing any of the services.
7. INSURANCE
(a) "All-Risk" Coverage. Tenant will, at its sole expense, obtain and keep
in force, during the term of this lease, "all-risk" coverage insurance
(including earthquake and flood insurance) naming landlord and tenant as their
interests may appear and other parties that landlord or tenant may designate as
additional insureds in the customary form in the City of Englewood for buildings
and improvements of similar character, on all buildings and improvements now or
after this date located on the premises. The amount of the insurance will be
designated by landlord no more frequently than once every twelve (12) months,
will be set forth on an "agreed amount endorsement" to the policy of insurance,
will not be less than the agreed replacement value of the buildings and
improvements, and will be subject to arbitration pursuant to paragraph 2.4 if
landlord and tenant do not agree with regard to such value. Landlord and tenant
have already agreed by separate document as to the replacement value of the
existing building on the premises which shall apply from June 1, 1997 until May
31, 1998.
(b) General Liability. Tenant will, at its sole expense, obtain and keep in
force during the term of this lease commercial general liability insurance with
a combined single limit of not less than one million dollars ($1,000,000) for
injury to or death of any one person, and three million dollars ($3,000,000) for
injury to or death of any number of persons in one occurrence and in the
aggregate, and for damage to property, insuring against any and all liability of
landlord and tenant, including without limitation coverage for contractual
liability, broad form property damage, host liquor liability, and non-owned
automobile liability, with respect to the premises or arising out of the
maintenance, use, or occupancy of the premises. The insurance will insure the
performance by tenant of the indemnity agreement as to liability for injury to
or death of persons and damage to property set forth in paragraph 19. The
insurance will be noncontributing with any insurance that may be carried by
landlord and will contain a provision that landlord, although named as an
insured, will nevertheless be entitled to recover under the policy for any loss,
injury, or damage to landlord, its agents, and employees, or the property of
such persons. The limits and coverage of all the insurance will be adjusted by
agreement of landlord and tenant during every third lease year during the term
of this lease in conformity with the then prevailing custom of insuring
liability in the City of Englewood, and any disagreement regarding the
adjustment will be submitted to arbitration in the manner provided in paragraph
24.
(c) Other Matters. All insurance required in this paragraph and all
renewals of it will be issued by companies authorized to transact business in
the State of Colorado, and rated at least A+ Class X by Best's Insurance Reports
(property liability) or approved by landlord. All insurance policies will be
subject to approval by landlord and any lender as to form and substance; will
expressly provide that the policies will not be canceled or altered without
thirty (30) days' prior written notice to landlord and any lender, in the case
of "all-risk" coverage insurance, and to landlord, in the case of general
liability insurance; and will, to the extent obtainable, provide that no act or
omission of tenant which would otherwise result in forfeiture or reduction of
the insurance will affect or limit the obligation of the insurance company to
pay the amount of any loss sustained. Tenant may satisfy its obligation under
this paragraph by appropriate endorsements of its blanket insurance policies.
(d) Additional Insureds. All policies of liability insurance that tenant is
obligated to maintain according to this lease (other than any policy of
workmen's compensation insurance) will name landlord and such other persons or
firms as landlord specifies from time to time as additional insureds. Original
or copies of original policies (together with copies of the endorsements naming
landlord, and any others specified by landlord, as additional insureds) and
evidence of the payment of all premiums of such policies will be delivered to
landlord prior to tenant's occupancy of the premises and from time to time at
least thirty (30) days prior to the expiration of the term of each policy. All
public liability, property damage liability, and casualty policies maintained by
tenant will be written as primary policies, not contributing with and not in
excess of coverage that landlord may carry. No insurance required to be
maintained by tenant by this paragraph will be subject to any deductible without
landlord's prior written consent.
(e) Waiver. Landlord and tenant waive all rights to recover against each
other or against any other tenant or occupant of the building, or against the
officers, directors, shareholders, partners, joint venturers, employees, agents,
customers, invitees, or business visitors of each of theirs or of any other
tenant or occupant of the building, for any loss or damage arising from any
cause covered by any insurance required to be carried by each of them pursuant
to this paragraph 7 or any other insurance actually carried by each of them.
Landlord and tenant will cause their respective insurers to issue appropriate
waiver of subrogation rights endorsements to all policies of insurance carried
in connection with the building or the premises or the contents of either of
them. Tenant will cause all other occupants of the premises claiming by, under,
or through tenant to execute and deliver to landlord a waiver of claims similar
to the waiver in this paragraph and to obtain such waiver of subrogation rights
endorsements.
8. USE
The premises will be used only for offices.
9. COMPLIANCE WITH LAWS (GENERALLY)
(a) Tenant's Obligations. Tenant will not use or occupy, or permit any
portion of the premises to be used or occupied:
(1) in violation of any law, ordinance, order, rule, regulation,
certificate of occupancy, or other governmental requirement;
(2) for any disreputable business or purpose; or
(3) in any manner or for any business or purpose that creates risks of
fire or other hazards, or that would in any way violate, suspend, void, or
increase the rate of fire or liability or any other insurance of any kind at any
time carried by landlord upon all or any part of the building in which the
premises are located or its contents.
Tenant will comply with all laws, ordinances, orders, rules, regulations, and
other governmental requirements relating to the use, condition, or occupancy of
the premises, and all rules, orders, regulations, and requirements of the board
of fire underwriters or insurance service office, or any other similar body,
having jurisdiction over the building in which the premises are located.
(b) Tenant's Obligations with Respect to Environmental Laws.
(1) Tenant and the premises will remain in compliance with all
applicable laws, ordinances, and regulations (including consent decrees and
administrative orders) relating to public health and safety and protection of
the environment, including those statutes, laws, regulations, and ordinances
identified in subparagraph (7), all as amended and modified from time to time
(collectively, "environmental laws"). All governmental permits relating to the
use or operation of the premises required by applicable environmental laws are
and will remain in effect, and tenant will comply with them.
(2) Tenant will not permit to occur any release, generation,
manufacture, storage, treatment, transportation, or disposal of "hazardous
material," as that term is defined in subparagraph (7), on, in, under, or from
the premises. Tenant will promptly notify landlord, in writing, if tenant has or
acquires notice or knowledge that any hazardous material has been or is
threatened to be released, discharged, disposed of, transported, or stored on,
in, under, or from the premises; and if any hazardous material is found on the
premises, tenant, at its own cost and expense, will immediately take such action
as is necessary to detain the spread of and remove the hazardous material to the
complete satisfaction of landlord and the appropriate governmental authorities.
(3) Tenant will immediately notify landlord and provide copies upon
receipt of all written complaints, claims, citations, demands, inquiries,
reports, or notices relating to the condition of the premises or compliance with
environmental laws. Tenant will promptly cure and have dismissed with prejudice
any of those actions and proceedings to the satisfaction of landlord. Tenant
will keep the premises free of any lien imposed pursuant to any environmental
laws.
(4) Landlord will have the right at all reasonable times and from time
to time to conduct environmental audits of the premises, and tenant will
cooperate in the conduct of those audits. The audits will be conducted by a
consultant of landlord's choosing, and if any hazardous material is detected or
if a violation of any of the warranties, representations, or covenants contained
in this paragraph is discovered, the fees and expenses of such consultant will
be borne by tenant and will be paid as additional rent under this lease on
demand by landlord.
(5) If tenant fails to comply with any of the foregoing warranties,
representations, and covenants, landlord may cause the removal (or other cleanup
acceptable to landlord) of any hazardous material from the premises. The costs
of hazardous material removal and any other cleanup (including transportation
and storage costs) will be additional rent under this lease, whether or not a
court has ordered the cleanup, and those costs will become due and payable on
demand by landlord. Tenant will give landlord, its agents, and employees access
to the premises to remove or otherwise clean up any hazardous material.
Landlord, however, has no affirmative obligation to remove or otherwise clean up
any hazardous material, and this lease will not be construed as creating any
such obligation.
(6) Tenant agrees to indemnify, defend (with counsel reasonably
acceptable to landlord and at tenant's sole cost), and hold landlord and
landlord's affiliates, shareholders, directors, officers, employees, and agents
free and harmless from and against all losses, liabilities, obligations,
penalties, claims, litigation, demands, defenses, costs, judgments, suits,
proceedings, damages (including consequential damages), disbursements, or
expenses of any kind (including attorneys' and experts' fees and expenses and
fees and expenses incurred in investigating, defending, or prosecuting any
litigation, claim, or proceeding) that may at any time be imposed upon, incurred
by, or asserted or awarded against landlord or any of them in connection with or
arising from or out of:
(A) any hazardous material on, in, under, or affecting all or any
portion of the premises;
(B) any misrepresentation, inaccuracy, or breach of any warranty,
covenant, or agreement contained or referred to in this paragraph;
(C) any violation or claim of violation by tenant of any environmental
law; or
(D) the imposition of any lien for the recovery of any costs for
environmental cleanup or other response costs relating to the release or
threatened release of hazardous material.
This indemnification is the personal obligation of tenant and will survive
termination of this lease. Tenant, its successors, and assigns waive, release,
and agree not to make any claim or bring any cost recovery action against
landlord under CERCLA, as that term is defined in subparagraph (7), or any state
equivalent or any similar law now existing or enacted after this date. To the
extent that landlord is strictly liable under any such law, regulation,
ordinance, or requirement, tenant's obligation to landlord under this indemnity
will also be without regard to fault on the part of tenant with respect to the
violation or condition that results in liability to landlord.
(7) For purposes of this lease, "hazardous material" means:
(A) "hazardous substances" or "toxic substances" as those terms are
defined by the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA), 42 U.S.C. ss. 9601, et seq., or the Hazardous Materials
Transportation Act, 49 U.S.C. ss. 1802, both as amended to this date and as
amended after this date;
(B) "hazardous wastes," as that term is defined by the Resource
Conservation and Recovery Act (RCRA), 42 U.S.C.ss. 6902, et seq., as amended to
this date and as amended after this date;
(C) any pollutant, contaminant, or hazardous, dangerous, or toxic
chemical, material, or substance within the meaning of any other applicable
federal, state, or local law, regulation, ordinance, or requirement (including
consent decrees and administrative orders) relating to or imposing liability or
standards of conduct concerning any hazardous, toxic, or dangerous waste
substance or material, all as amended to this date or as amended after this
date;
(D) crude oil or any fraction of it that is liquid at standard
conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds
per square inch absolute);
(E) any radioactive material, including any source, special nuclear,
or byproduct material as defined at 42 U.S.C.ss. 2011, et seq., as amended to
this date or as amended after this date;
(F) asbestos in any form or condition; and
(G) polychlorinated biphenyls (PCB's) or substances or compounds
containing PCB'S.
(c) Right to Contest Laws. Tenant will have the right to contest by
appropriate proceedings diligently conducted in good faith in the name of
tenant, or, with the prior consent of the landlord, in the name of landlord, or
both, without cost or expense to landlord, the validity or application of any
law, ordinance, order, rule, regulation, or legal requirement of any nature. If
compliance with any law, ordinance, order, rule, regulation, or requirement may
legally be delayed pending the prosecution of any proceeding, without incurring
any lien, charge, or liability of any kind against the premises, or tenant's
interest in the premises, and without subjecting tenant or landlord to any
liability, civil or criminal, for failure so to comply, tenant may delay
compliance until the final determination of the proceeding. Even if a lien,
charge, or liability may be incurred by reason of delay, tenant may contest and
delay, so long as (1) the contest or delay does not subject landlord to criminal
liability and (2) tenant furnishes to landlord security, reasonably satisfactory
to landlord, against any loss or injury by reason of any contest or delay.
Landlord will not be required to join any proceedings referred to in this
paragraph unless the provision of any applicable law, rule, or regulation at the
time in effect requires that the proceedings be brought by or in the name of
landlord, or both. In that event landlord will join the proceedings or permit
them to be brought in its name if tenant pays all related expenses.
10. ASSIGNMENTS AND SUBLEASES
Tenant may assign or sublease all or part of the premises with landlord's
prior written consent, which landlord agrees will not be unreasonably withheld
or delayed.
11. SIGNS
Tenant may install signs on the premises in accordance with federal, state,
and local statutes, laws, ordinances, and codes.
12. REPAIRS AND MAINTENANCE
Tenant accepts the premises as is. Tenant will, at its sole cost and
expense, maintain the premises and make repairs, restorations, and replacements
to the premises, including without limitation the heating, ventilating, air
conditioning, mechanical, electrical, elevator, and plumbing systems, structural
roof, walls, and foundations, and the fixtures and appurtenances to the premises
as and when needed to preserve them in good working order and condition and
regardless of whether the repairs, restorations, and replacements are ordinary
or extraordinary, foreseeable or unforeseeable, capital or noncapital, or the
fault or not the fault of tenant, its agents, employees, invitees, visitors, or
contractors. All repairs, restorations, and replacements will be in quality and
class equal to the original work or installations. If tenant fails to make
repairs, restorations, or replacements, landlord may make them at the expense of
tenant and the expense will be collectible as additional rent to be paid by
tenant within fifteen (15) days after delivery of a statement for the expense.
13. ALTERATIONS
Tenant will not make any alterations, additions, or improvements to the
premises without landlord's prior written consent; however, landlord's prior
written consent will not be necessary for any alteration, addition, or
improvement which:
(a) costs less than two thousand dollars ($2,000) including labor and
materials;
(b) does not change the general character of the premises, or reduce the
fair market value of the premises below its fair market value prior to the
alteration, addition, or improvement;
(c) is made with due diligence, in a good and workmanlike manner, and in
compliance with the laws, ordinances, orders, rules, regulations, certificates
of occupancy, or other governmental requirements described in paragraph 9;
(d) is promptly and fully paid for by tenant; and
(e) is made under the supervision of an architect or engineer reasonably
satisfactory to landlord and in accordance with plans and specifications and
cost estimates approved by landlord.
Landlord may designate a supervising architect to assure compliance with the
provisions of this paragraph, and if it does, tenant will pay the supervising
architect's charges. Subject to tenant's rights in paragraph 14, all
alterations, additions, fixtures, and improvements, whether temporary or
permanent in character, made in or upon the premises by tenant, will immediately
become landlord's property and at the end of the term of this lease will remain
on the premises without compensation to tenant. By notice given to tenant no
less than ninety (90) days prior to the end of this lease, landlord may require
that any alterations, additions, fixtures, and improvements made in or upon the
premises be removed by tenant. In that event, tenant will remove the
alterations, additions, fixtures, and improvements at tenant's sole cost and
will restore the premises to the condition in which they were before the
alterations, additions, improvements, and additions were made, reasonable wear
and tear excepted.
14. END OF TERM
At the end of this lease, tenant will surrender the premises in good order
and condition, ordinary wear and tear excepted. Tenant will not remove any trade
fixtures or equipment without landlord's prior written consent. Whether or not
tenant is then in default, tenant will remove alterations, additions,
improvements, trade fixtures, equipment, and furniture that landlord has
requested be removed in accordance with paragraph 13. Tenant will fully repair
any damage occasioned by the removal of any trade fixtures, equipment,
furniture, alterations, additions, and improvements. All trade fixtures,
equipment, furniture, alterations, additions, and improvements not so removed
will conclusively be deemed to have been abandoned by tenant and may be
appropriated, sold, stored, destroyed, or otherwise disposed of by landlord
without notice to tenant or to any other person and without obligation to
account for them. Tenant will pay landlord all expenses incurred in connection
with landlord's disposition of such property, including without limitation the
cost of repairing any damage to the building or premises caused by removal of
the property. Tenant's obligation to observe and perform this covenant will
survive the end of this lease.
15. DAMAGE AND DESTRUCTION
(a) General. if the premises are damaged or destroyed by reason of fire or
any other cause, tenant will immediately notify landlord and will promptly
repair or rebuild the building at tenant's expense, so as to make the building
at least equal in value to the building existing immediately prior to the
occurrence and as nearly similar to it in character as is practicable and
reasonable. Landlord will apply and make available to pay to tenant the net
proceeds of any fire or other casualty insurance paid to landlord, after
deduction of any costs of collection, including attorneys' fees, for repairing
or rebuilding as the same progresses. Payments will be made against properly
certified vouchers of a competent architect in charge of the work and approved
by landlord. Landlord will contribute, out of the insurance proceeds, towards
each payment to be made by or on behalf of tenant for the repairing or
rebuilding of the building, under a schedule of payments to be made by tenant
and not unreasonably objected to by landlord, an amount in the proportion to the
payment by tenant as the total net amount received by landlord from insurers
bears to the total estimated cost of the rebuilding or repairing. Landlord,
however, may withhold from each amount so to be paid by landlord fifteen percent
(15%) of the amount until the work of repairing or rebuilding is completed and
proof has been furnished to landlord that no lien or liability has attached or
will attach to the premises or to landlord in connection with the repairing or
rebuilding. Upon the completion of rebuilding and the furnishing of that proof,
the balance of the net proceeds of the insurance will be paid to tenant. If the
proceeds of insurance are paid to the holder of any mortgage on landlord's
interest in the premises, landlord will make available net proceeds of the
insurance in accordance with the provisions of this paragraph. Before beginning
repairs or rebuilding, or letting any contracts in connection with repairs or
rebuilding, tenant will submit for landlord's approval, which approval landlord
will not unreasonably withhold or delay, complete and detailed plans and
specifications for the repairs or rebuilding. Promptly after receiving
landlord's approval of those plans and specifications, tenant will begin the
repairs or rebuilding and will prosecute the repairs or rebuilding to completion
with diligence, subject, however, to strikes, lockouts, acts of God, embargoes,
governmental restrictions, and other causes beyond tenant's reasonable control.
Tenant will obtain and deliver to landlord a temporary or final certificate of
occupancy before the premises are reoccupied for any purpose. The repairs or
rebuilding will be completed free and clear of mechanics' or other liens, and in
accordance with the building codes and all applicable laws, ordinances,
regulations, or orders of any state, municipal, or other public authority
affecting the repairs or rebuilding, and also in accordance with all
requirements of the insurance rating organization, or similar body, and of any
liability insurance company insuring landlord against liability for accidents
related to the premises. Any remaining proceeds of insurance after the
restoration will be tenant's property.
(b) Landlord's Inspection. During the progress of repairs or rebuilding,
landlord and its architects and engineers may from time to time inspect the
building and will be furnished, if required by them, with copies of all plans,
shop drawings, and specifications relating to the repairs or rebuilding. Tenant
will keep all plans, shop drawings, and specifications at the building, and
landlord and its architects and engineers may examine them at all reasonable
times. If, during repairs or rebuilding, landlord and its architects and
engineers determine that the repairs or rebuilding are not being done in
accordance with the approved plans and specifications, landlord will give prompt
notice in writing to tenant, specifying in detail the particular deficiency,
omission, or other respect in which landlord claims the repairs or rebuilding do
not accord with the approved plans and specifications. Upon the receipt of that
notice, tenant will cause corrections to be made to any deficiencies, omissions,
or such other respect. Tenant's obligations to supply insurance according to
paragraph 7 will be applicable to any repairs or building under this paragraph.
(c) Landlord's Costs. The charges of any architect or engineer of landlord
employed to pass upon any plans and specifications and to supervise and approve
any construction, or for any services rendered by the architect or engineer to
landlord as contemplated by any of the provisions of this lease, will be paid by
tenant as a cost of the repair or rebuilding. The fees of such architect or
engineer will be those customarily paid for comparable services.
(d) No Rent Abatement. Base rent and additional rent will not abate pending
the repairs or rebuilding except to the extent to which landlord receives a net
sum as proceeds of any rent insurance.
(e) Damage During Last Three Years. If at any time during the last three
years of the term (as extended according to paragraph 3) the building is so
damaged by fire or otherwise that the cost of restoration exceeds fifty percent
(50%) of the replacement value of the building (exclusive of foundations)
immediately prior to the damage, either landlord or tenant may, within thirty
(30) days after such damage, give notice of its election to terminate this lease
and, subject to the further provisions of this paragraph, this lease will cease
on the tenth (10th) day after the delivery of that notice. Base rent will be
apportioned and paid to the time of termination. If this lease is so terminated,
tenant will have no obligation to repair or rebuild, and the entire insurance
proceeds will belong to landlord.
16. CONDEMNATION
(a) Total Taking. If, by exercise of the right of eminent domain or by
conveyance made in response to the threat of the exercise of such right (in
either case a "taking"), all of the premises are taken, or if so much of the
premises are taken that the premises (even if the restorations described in
paragraph 16(b) were to be made) cannot be used by tenant for the purposes for
which they were used immediately before the taking, this lease will end on the
earlier of the vesting of title to the premises in the condemning authority or
the taking of possession of the premises by the condemning authority (in either
case the "ending date"). If this lease ends according to this paragraph 16(a),
prepaid rent will be appropriately prorated to the ending date. The award in a
taking subject to this paragraph 16(a) will be allocated according to paragraph
16(d).
(b) Partial Taking. If, after a taking, so much of the premises remains
that the premises can be used for substantially the same purposes for which they
were used immediately before the taking:
(1) this lease will end on the ending date as to the part of the
premises which is taken;
(2) prepaid rent will be appropriately allocated to the part of the
premises which is taken and prorated to the ending date;
(3) beginning on the day after the ending date, rent for so much of
the premises as remains will be reduced in the proportion of the floor area of
the building remaining after the taking to the floor area of the building before
the taking;
(4) at its cost, tenant will restore so much of the premises as
remains to a sound architectural unit substantially suitable for the purposes
for which it was used immediately before the taking, using good workmanship and
new first class materials, all according to paragraph 13;
(5) upon the completion of restoration according to clause (6),
landlord will pay tenant the lesser of the net award made to landlord on account
of the taking (after deducting from the total award attorneys', appraisers', and
other costs incurred in connection with obtaining the award, and amounts paid to
the holders of mortgages affecting the premises), or tenant's actual
out-of-pocket cost of restoring the premises; and
(6) landlord will keep the balance of the net award.
(c) Tenant's Award. In connection with any taking subject to paragraph
16(a) or 16(b), tenant may prosecute its own claim by separate proceedings
against the condemning authority for damages legally due to it (such as the loss
of fixtures which tenant was entitled to remove and moving expenses) only so
long as tenant's award does not diminish or otherwise adversely affect
landlord's award.
(d) Allocation of an Award for a Total Taking. If this lease ends according
to paragraph 16(a), the condemnation award will be paid in the order in this
paragraph 16(d) to the extent it is sufficient:
(1) First, landlord will be reimbursed for its attorneys' fees,
appraisal fees, and other costs incurred in prosecuting the claim for the award.
(2) Second, any lender whose loan is secured by the premises will be
paid the principal balance of its loan, plus accrued and unpaid interest, and
any other charges due on payment.
(3) Third, landlord will be paid the value at the time of the award of
lost rent and the reversion to the extent they exceed the amount paid to
landlord's lender.
(4) Fourth, tenant will be paid its adjusted book value as of the date
of the taking of its improvements (excluding trade fixtures) made to the
premises. In computing its adjusted book value, improvements will be
conclusively presumed to have been depreciated or amortized for federal income
tax purposes over their useful lives with a reasonable salvage value.
(5) Fifth, the balance will be divided equally between landlord and
tenant.
17. SUBORDINATION; ENCUMBRANCES
(a) General. This lease and tenant's rights under this lease are subject
and subordinate to any ground lease or underlying lease, first mortgage, first
deed of trust, or other first lien encumbrance or indenture, together with any
renewals, extensions, modifications, consolidations, and replacements of them,
which now or at any subsequent time affect the premises, any interest of
landlord in the premises, or landlord's interest in this lease and the estate
created by this lease (except to the extent that any such instrument expressly
provides that this lease is superior to it). This provision will be
self-operative and no further instrument of subordination will be required in
order to effect it. Nevertheless, tenant will execute, acknowledge and deliver
to landlord, at any time and from time to time, upon demand by landlord, any
documents as may be requested by landlord, any ground landlord or underlying
lessor, or any mortgagee, or any holder of a deed of trust or other instrument
described in this paragraph, to confirm or effect the subordination. If tenant
fails or refuses to execute, acknowledge, and deliver any such document within
twenty (20) days after written demand, landlord, its successors, and assigns
will be entitled to execute, acknowledge, and deliver the document on behalf of
tenant as tenant's as attorney-in-fact. Tenant constitutes and irrevocably
appoints landlord, its successors, and assigns, as tenant's attorney-in-fact to
execute, acknowledge, and deliver on behalf of tenant any documents described in
this paragraph.
(b) Attornment. If any holder of any mortgage, indenture, deed of trust, or
other similar instrument described in subparagraph (a) succeeds to landlord's
interest in the premises, tenant will pay to it all rents subsequently payable
under this lease. Tenant will, upon request of anyone so succeeding to the
interest of landlord, automatically become the tenant of, and attorn to, the
successor in interest without change in this lease. The successor in interest
will not be bound by (1) any payment of rent for more than one month in advance,
(2) any amendment or modification of this lease made without its written
consent, (3) any claim against landlord arising prior to the date on which the
successor succeeded to landlord's interest, or (4) any claim or offset of rent
against the landlord. Upon request by the successor in interest and without cost
to landlord or the successor in interest, tenant will execute, acknowledge, and
deliver an instrument or instruments confirming the attornment. The instrument
of attornment will also provide that the successor in interest will not disturb
tenant in its use of the premises in accordance with this lease. If tenant fails
or refuses to execute, acknowledge, and deliver the instrument within twenty
(20) days after written demand, the successor in interest will be entitled to
execute, acknowledge, and deliver the document on behalf of tenant as tenant's
as attorney-in-fact. Tenant constitutes and irrevocably appoints the successor
in interest as tenant's attorney-in-fact to execute, acknowledge, and deliver on
behalf of tenant any document described in this paragraph.
(c) Encumbrances. Tenant may not mortgage, pledge, or otherwise encumber
this lease or the premises.
18. LANDLORD'S ACCESS
Landlord, its agents, employees, and contractors may enter the premises at
any time in response to an emergency, and at reasonable hours to (a) inspect the
premises, (b) exhibit the premises to prospective purchasers, lenders, or
tenants, (c) determine whether tenant is complying with its obligations in this
lease, (d) supply any other service which this lease requires landlord to
provide, (e) post notices of nonresponsibility or similar notices, or (f) make
repairs which this lease requires landlord to make; however, all work will be
done as promptly as reasonably possible and so as to cause as little
interference to tenant as reasonably possible. Tenant waives any claim on
account of any injury or inconvenience to tenant's business, interference with
tenant's business, loss of occupancy or quiet enjoyment of the premises, or any
other loss occasioned by the entry. Landlord will at all times have a key with
which to unlock all of the doors in the premises (excluding tenant's vaults,
safes, and similar areas designed in writing by tenant in advance). Landlord
will have the right to use any means landlord may deem proper to open doors in
the premises and to the premises in an emergency in order to enter the premises.
No entry to the premises by landlord by any means will be a forcible or unlawful
entry into the premises or a detainer of the premises or an eviction, actual or
constructive, of tenant from the premises, or any part of the premises, nor will
any entry entitle tenant to damages or an abatement of rent or other charges
which this lease requires tenant to pay.
19. INDEMNIFICATION, WAIVER AND RELEASE
(a) Indemnification. Tenant will indemnify landlord, its agents, and
employees against, and hold landlord, its agents, and employees harmless from,
any and all demands, claims, causes of action, fines, penalties, damages
(including consequential damages), losses, liabilities, judgments, and expenses
(including without limitation attorneys' fees and court costs) incurred in
connection with or arising from:
(1) the use or occupancy of the premises by tenant or any person
claiming under tenant;
(2) any activity, work, or thing done or permitted or suffered by
tenant in or about the premises;
(3) any acts, omissions, or negligence of tenant, any person claiming
under tenant, or the employees, agents, contractors, invitees, or visitors of
tenant or any person;
(4) any breach, violation, or nonperformance by tenant, any person
claiming under tenant, or the employees, agents, contractors, invitees, or
visitors of tenant, or any person of any term, covenant, or provision of this
lease or any law, ordinance, or governmental requirement of any kind; or
(5) except for loss of use of all or any portion of the premises or
tenant's property located within the premises that is proximately caused by or
results proximately from the negligence of landlord, any injury or damage to the
person, property, or business of tenant or its employees, agents, contractors,
invitees, visitors, or any other person entering upon the premises under the
express or implied invitation of tenant.
If any action or proceeding is brought against landlord, its employees, or
agents by reason of any claim, tenant, upon notice from landlord, will defend
the claim at tenant's expense with counsel reasonably satisfactory to landlord.
(b) Waiver and Release. Tenant waives and releases all claims against
landlord, its employees, and agents with respect to all matters for which
landlord has disclaimed liability pursuant to the provisions of this lease. In
addition, tenant agrees that landlord, its agents, and employees will not be
liable for any loss, injury, death, or damage (including consequential damages)
to persons, property, or tenant's business occasioned by theft; act of God;
public enemy; injunction; riot; strike; insurrection; war; court order;
requisition; order of governmental body or authority; fire; explosion; falling
objects; steam, water, rain or snow; leak or flow of water (including water from
the elevator system), rain or snow from the premises or into the premises or
from the roof, street, subsurface, or from any other place, or by dampness, or
from the breakage, leakage, obstruction, or other defects of the pipes,
sprinklers, wires, appliances, plumbing, air conditioning, or lighting fixtures
of the building; or from construction, repair, or alteration of the premises or
from any acts or omissions of any visitor of the premises; or from any cause
beyond landlord's control.
20. COVENANT OF QUIET ENJOYMENT
So long as tenant pays the rent and performs all of its obligations in this
lease, tenant's possession of the premises will not be disturbed by landlord, or
anyone claiming by, through or under landlord, or by the holders of the
mortgages described in paragraph 17.
21. LIMITATION ON TENANT'S RECOURSE
Tenant's sole recourse against landlord, and any successor to the interest
of landlord in the premises, is to the interest of landlord, and any successor,
in the premises. Tenant will not have any right to satisfy any judgment which it
may have against landlord, or any successor, from any other assets of landlord,
or any successor.
In this paragraph the terms "landlord" and "successor" include the
shareholders, venturers, and partners of landlord and successor and the
officers, directors, and employees of landlord and successor. The provisions of
this paragraph are not intended to limit tenant's right to seek injunctive
relief or specific performance, or tenant's right to claim the proceeds of
insurance (if any) specifically maintained by landlord for tenant's benefit.
22. DEFAULT
(a) Cure. If tenant fails to pay when due amounts payable under this lease
or to perform any of its other obligations under this lease within the time
permitted for its performance, then landlord, after ten (10) days' written
notice to tenant (or, in case of any emergency, upon notice or without notice as
may be reasonable under the circumstances) and without waiving any of its rights
under this lease, may (but will not be required to) pay the amount or perform
the obligation.
All amounts so paid by landlord and all costs and expenses incurred by
landlord in connection with the performance of any obligations (together with
interest at the prime rate from the date of landlord's payment of the amount or
incurring of each cost or expense until the date of full repayment by tenant)
will be payable by tenant to landlord on demand. In the proof of any damages
that landlord may claim against tenant arising out of tenant's failure to
maintain insurance, landlord will not be limited to the amount of the unpaid
insurance premium but will also be entitled to recover as damages for the breach
the amount of any uninsured loss (to the extent of any deficiency in the
insurance required by the provisions of this lease), damages, costs and expenses
of suit, including attorneys' fees, arising out of damage to, or destruction of,
the premises occurring during any period for which tenant has failed to provide
the insurance.
(b) Events of Default. The following occurrences are "events of default":
(1) Tenant defaults in the due and punctual payment of rent, and the
default continues for five (5) days after notice from landlord; however, tenant
will not be entitled to more than one (1) notice for default in payment of rent
during any twelve-month period, and if, within twelve (12) months after any
notice, any rent is not paid when due, an event of default will have occurred
without further notice;
(2) Tenant vacates or abandons the premises;
(3) This lease or the premises or any part of the premises is taken
upon execution or by other process of law directed against tenant, or is taken
upon or subjected to any attachments by any creditor of tenant or claimant
against tenant, and the attachment is not discharged within fifteen (15) days
after its levy;
(4) Tenant files 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 is dissolved, or makes an assignment
for the benefit of creditors;
(5) Involuntary proceedings under any bankruptcy laws or insolvency
act or for the dissolution of tenant are instituted against tenant, or a
receiver or trustee is appointed for all or substantially all of tenant's
property, and the proceeding is not dismissed or the receivership or trusteeship
is not vacated within sixty (60) days after institution or appointment;
(6) Tenant fails to take possession of the premises on the
commencement date of the term; or
(7) Tenant breaches any of the other agreements, terms, covenants, or
conditions that this lease requires tenant to perform, and the breach continues
for a period of thirty (30) days after notice by landlord to tenant.
(c) Remedies. If any one or more events of default set forth in paragraph
23(b) occurs, then landlord may, at its election, either:
(1) give tenant written notice of its intention to terminate this
lease on the date of the notice or on any later date specified in the notice,
and, on the date specified in the notice, tenant's right to possession of the
premises will cease and the lease will be terminated, except as to tenant's
liability set forth in this paragraph 23(c)(1), as if the date fixed in the
notice were the end of the term of this lease. If this lease is terminated
pursuant to the provisions of this subparagraph (1), tenant will remain liable
to landlord for damages in an amount equal to the rent and other sums that would
have been owing by tenant under this lease for the balance of the term if this
lease had not been terminated, less the net proceeds, if any, of any reletting
of the premises by landlord subsequent to the termination, after deducting all
landlord's expenses in connection with reletting, including without limitation
the expenses set forth in paragraph 23(c)(2). Landlord will be entitled to
collect damages from tenant monthly on the days on which the rent and other
amounts would have been payable under this lease if this lease had not been
terminated, and landlord will be entitled to receive damages from tenant on each
day. Alternatively, at the option of landlord, if this lease is terminated,
landlord will be entitled to recover from tenant:
(A) the worth at the time of award of the unpaid rent which had been
earned at the time of termination;
(B) the worth at the time of award of the amount by which the unpaid
rent which would have been earned after termination until the time of award
exceeds the amount of rent loss that tenant proves could reasonably have been
avoided;
(C) the worth at the time of award of the amount by which the unpaid
rent for the balance of the term of this lease after the time of award exceeds
the amount of rent loss that tenant proves could reasonably be avoided; and
(D) any other amount necessary to compensate landlord for all the
detriment proximately caused by tenant's failure to perform its obligations
under this lease or which in the ordinary course of things would be likely to
result from the failure.
The "worth at the time of award" of the amount referred to in clauses (A) and
(B) is computed by allowing interest at the highest rate permitted by law. The
"worth at the time of award" of the amount referred to in clause (C) is computed
by discounting the amount at the discount rate of the Federal Reserve Bank of
[name] at the time of award.
or
(2) without demand or notice, re-enter and take possession of the
premises or any part of the premises; repossess the premises as of the
landlord's former estate; expel the tenant from the premises and those claiming
through or under tenant; and remove the effects of both or either, 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. If landlord
elects to re-enter as provided in this paragraph 23(c)(2), or if landlord takes
possession of the premises pursuant to legal proceedings or pursuant to any
notice provided by law, landlord may, from time to time, without terminating
this lease, relet the premises or any part of the premises, either alone or in
conjunction with other portions of the building of which the premises are a
part, in landlord's or tenant's name but for the account of tenant, for the term
or terms (which may be greater or less than the period which would otherwise
have constituted the balance of the term of this lease) and on such terms and
conditions (which may include concessions of free rent, and the alteration and
repair of the premises) as landlord, in its uncontrolled discretion, may
determine. Landlord may collect and receive the rents for the premises. Landlord
will not be responsible or liable for any failure to relet the premises, or any
part of the premises, or for any failure to collect any rent due upon the
reletting. No re-entry or taking possession of the premises by landlord will be
construed as an election on landlord's part to terminate this lease unless a
written notice of the intention is given to tenant. No notice from landlord
under this lease or under a forcible entry and detainer statute or similar law
will constitute an election by landlord to terminate this lease unless the
notice specifically says so. Landlord reserves the right following any reentry
or reletting, or both, to exercise its right to terminate this lease by giving
tenant written notice, and in that event the lease will terminate as specified
in the notice. If landlord elects to take possession of the premises according
to this paragraph 23(c)(2) without terminating the lease, tenant will pay
landlord the rent and other sums which would be payable under this lease if the
repossession had not occurred, less the net proceeds, if any, of any reletting
of the premises after deducting all of landlord's expenses incurred in
connection with the reletting, including without limitation all repossession
costs, brokerage commissions, legal expenses, attorneys' fees, expenses of
employees, alteration, remodeling and repair costs, and expenses of preparation
for the reletting. If, in connection with any reletting, the new lease term
extends beyond the existing term, or the premises covered by the reletting
include areas that are not part of the premises, a fair apportionment of the
rent received from the reletting and the expenses incurred in connection with
the reletting will be made in determining the net proceeds received from
reletting. In addition, in determining the net proceeds from reletting, any rent
concessions will be apportioned over the term of the new lease. Tenant will pay
the amounts to landlord monthly on the days on which the rent and all other
amounts owing under this lease would have been payable if possession had not
been retaken, and landlord will be entitled to receive the rent and other
amounts from tenant on each day.
23. ARBITRATION
These procedures will govern any arbitration according to this lease:
(a) Arbitration will be commenced by a written demand made by landlord or
tenant upon the other. The written demand will contain a statement of the
question to be arbitrated and the name and address of the arbitrator appointed
by the demandant. Within ten (10) days after its receipt of the written demand,
the other will give the demandant written notice of the name and address of its
arbitrator. Within ten (10) days after the date of the appointment of the second
arbitrator, the two arbitrators will meet. If the two arbitrators are unable to
resolve the question in dispute within ten (10) days after their first meeting,
they will select a third arbitrator. The third arbitrator will be designated as
chairman and will immediately give landlord and tenant written notice of its
appointment. The three arbitrators will meet within ten (10) days after the
appointment of the third arbitrator. If they are unable to resolve the question
in dispute within ten (10) days after their first meeting, the third arbitrator
will select a time, date, and place for a hearing and will give landlord and
tenant thirty (30) days' prior written notice of it. The date for the hearing
will not be more than sixty (60) days after the date of appointment of the third
arbitrator. The first two arbitrators may be partial. The third arbitrator must
be neutral.
(b) At the hearing, landlord and tenant will each be allowed to present
testimony and tangible evidence and to cross-examine each other's witnesses. The
arbitrators may make additional rules for the conduct of the hearing or the
preparation for it. The arbitrators will render their written decision to
landlord and tenant not more than thirty (30) days after the last day of the
hearing.
(c) If the one of whom arbitration is demanded fails to appoint its
arbitrator within the time specified, or if the two arbitrators appointed are
unable to agree on an appointment of the third arbitrator within the time
specified, either landlord or tenant may petition a justice of the Court of the
State of Colorado to appoint a third arbitrator. The petitioner will give the
other five (5) days' written notice before filing its petition.
(d) The arbitration will be governed by the Arbitration Law of the State of
Colorado, and, when not in conflict with that law, by the general procedures in
the Commercial Arbitration Rules of the American Arbitration Association.
(e) The arbitrators will not have power to add to, modify, detract from, or
alter in any way the provisions of this lease or any amendments or supplements
to this lease. The written decision of at least two arbitrators will be
conclusive and binding upon landlord and tenant. No arbitrator is authorized to
make an award of punitive or exemplary damages.
(f) Landlord and tenant will each pay for the services of its appointees,
attorneys, and witnesses, plus one-half (1/2) of all other proper costs relating
to the arbitration.
(g) The decision of the arbitrators will be final and non-appealable, and
may be enforced according to the laws of the State of Colorado.
24. MISCELLANEOUS
(a) Recordation. Tenant's recordation of this lease or any memorandum or
short form of it will be void and a default under this lease.
(b) Holding Over. If tenant remains in possession of the premises after the
end of this lease, tenant will occupy the premises as a tenant from month to
month, subject to all conditions, provisions, and obligations of this lease in
effect on the last day of the term.
(c) Estoppel Certificates. Within no more than fifteen (15) days after
written request by landlord, tenant will execute, acknowledge, and deliver to
landlord a certificate stating:
(1) that this lease is unmodified and in full force and effect, or, if
the lease is modified, the way in which it is modified accompanied by a copy of
the modification agreement;
(2) the date to which rental and other sums payable under this lease
have been paid;
(3) that no notice has been received by tenant of any default which
has not been cured, or, if the default has not been cured, what tenant intends
to do in order to effect the cure, and when it will do so;
(4) that tenant has accepted and occupied the premises;
(5) that tenant has no claim or offset against landlord, or, if it
does, stating the date of the assignment and assignee (if known to tenant); and
(6) other matters as may be reasonably requested by landlord.
Any certificate may be relied upon by any prospective purchaser of the premises
and any prospective mortgagee or beneficiary under any deed of trust or mortgage
encumbering the premises. If landlord submits a completed certificate to tenant,
and if tenant fails to object to its contents within ten (10) days after its
receipt of the completed certificate, the matters stated in the certificate will
conclusively be deemed to be correct. Furthermore, tenant irrevocably appoints
landlord as tenant's attorney-in-fact to execute and deliver on tenant's behalf
any completed certificate to which tenant does not object within ten (10) days
after its receipt.
(d) No Waiver. No waiver of any condition or agreement in this lease by
either landlord or tenant will imply or constitute a further waiver by such
party of the same or any other condition or agreement. No act or thing done by
landlord or landlord's agents during the term of this lease will be deemed an
acceptance of a surrender of the premises, and no agreement to accept the
surrender will be valid unless in writing signed by landlord. The delivery of
tenant's keys to any employee or agent of landlord will not constitute a
termination of this lease unless landlord has entered into a written agreement
to that effect. No payment by tenant, or receipt from landlord, of a lesser
amount than the rent or other charges stipulated in this lease will be deemed to
be anything other than a payment on account of the earliest stipulated rent. No
endorsement or statement on any check or any letter accompanying any check or
payment as rent will be deemed an accord and satisfaction. Landlord will accept
the check for payment without prejudice to landlord's right to recover the
balance of the rent or to pursue any other remedy available to landlord. If this
lease is assigned, or if the premises or any part of the premises are sublet or
occupied by anyone other than tenant, landlord may collect rent from the
assignee, subtenant, or occupant and apply the net amount collected to the rent
reserved in this lease. No collection will be deemed a waiver of the covenant in
this lease against assignment and subletting; the acceptance of the assignee,
subtenant, or occupant as tenant; or a release of tenant from the complete
performance by tenant of its covenants in this lease.
(e) Authority. If tenant signs this lease as a corporation, each of the
persons executing this lease on behalf of tenant warrants to landlord that
tenant is a duly authorized and existing corporation, that tenant is qualified
to do business in the state in which the premises are located, that tenant has
full right and authority, to enter into this lease, and that each and every
person signing on behalf of tenant is authorized to do so. Upon landlord's
request, tenant will provide evidence satisfactory to landlord confirming these
representations.
(f) Notices. Any notice, request, demand, consent, approval, or other
communication required or permitted under this lease will be written and will be
deemed to have been given (1) when personally delivered, (2) when served
pursuant to the Federal Rules of Civil Procedure, or (3) on the third day after
it is deposited in any depository regularly maintained by the United States
postal service, postage prepaid, certified or registered mail, return receipt
requested, addressed to:
Landlord: Justus Realty Limited Partnership
13111 East Briarwood Avenue
Englewood, CO 80112
Tenant: Accelerated Bureau of Collections, Inc.
5295 DTC Parkway
Englewood, CO 80111
Either landlord or tenant may change its address or addressee for purposes of
this paragraph by giving ten (10) days' prior notice according to this
paragraph. Any notice from landlord to tenant will be deemed to have been given
if delivered to the premises, addressed to tenant, whether or not tenant has
vacated or abandoned the premises.
(g) Attorneys' Fees. If landlord and tenant litigate any provision of this
lease or the subject matter of this lease, the unsuccessful litigant will pay to
the successful litigant all costs and expenses, including reasonable attorneys'
fees and court costs, incurred by the successful litigation at trial and on any
appeal. If, without fault, either landlord or tenant is made a party to any
litigation instituted by or against the other, the other will indemnify the
faultless one against all loss, liability, and expense, including reasonable
attorneys' fees and court costs, incurred by it in connection with the
litigation.
(h) Waiver of Jury Trial. Landlord and tenant waive trial by jury in any
action, proceeding, or counterclaim brought by either of them against the other
on all matters arising out of this lease or the use and occupancy of the
premises (except claims for personal injury or property damage). If landlord
commences any summary proceeding for nonpayment of rent, tenant will not
interpose (and waives the right to interpose) any counterclaim in any
proceeding.
(i) Restrictions. Tenant shall be subject to any restrictive covenants
running with the premises and to any covenants contained in the Master
Development Plan for the Denver Technological Center.
(j) Binding Effect. This lease will inure to the benefit of, and will be
binding upon, landlord's successors and assigns. This lease will inure to the
benefit of, and will be binding upon, the tenant's successors and assigns so
long as the succession or assignment is permitted by paragraph 10.
Landlord and tenant have executed this lease as of the first date in this
lease.
LANDLORD:
JUSTUS REALTY LIMITED PARTNERSHIP
By: Justus Real Property Management, Inc.,
its sole general partner ATTEST:
By:_______________________________________________
____________________________, President
TENANT:
ACCELERATED BUREAU OF COLLECTIONS, INC. ATTEST:
By:_______________________________________________
STATE OF COLORADO )
) ss. COUNTY OF ARAPAHOE )
The foregoing instrument was acknowledged before me on May 30, 1997, by
__________________, as ________________ of _________________________, a
______________________.
Witness my hand and official seal.
---------------------------------------
Notary Public
My commission expires:________________________________
STATE OF COLORADO )
) ss. COUNTY OF ARAPAHOE )
The foregoing instrument was acknowledged before me on May 30, 1997, by
__________________, as ________________ of _________________________, a
______________________.
Witness my hand and official seal.
---------------------------------------
Notary Public
My commission expires:________________________________
EXHIBIT A
TO LEASE
LEGAL DESCRIPTION OF PREMISES
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