Colorado-Westminster-8700 Turnpike Drive Office Suite Lease - Westpike LLC, 1325 Garfield LLC, 520 Cooper LLC, and Abacus Direct Corp.
OFFICE SUITE LEASE
THIS LEASE is made this 2nd day of December, 1997, between WESTPIKE LLC,
a Colorado limited liability company; 1325 GARFIELD LIMITED LIABILITY COMPANY, a
Colorado limited liability company; 520 COOPER LIMITED LIABILITY COMPANY, a Colorado
limited liability company; and PHILIP M. HOLSTEIN, an individual; and MIRIAM SIMMS,
an individual (collectively the "Landlord") and ABACUS DIRECT CORPORATION, a Delaware
corporation ("Tenant").
1. PREMISES: In consideration of the payment of rent and performance
of the covenants and agreements by Tenant, as hereinafter set forth, Landlord hereby
leases to Tenant those certain premises designated on the plan attached hereto as
EXHIBIT A and incorporated herein by this reference (the "Premises"), consisting
of a total of approximately 11,298 rentable square feet of space and known as Suite
110 in the building located at 8700 Turnpike Dr., Westminster, Colorado 80030 presently
known as the Westpark Place Building, located on the real property more particularly
described on EXHIBIT B attached hereto and incorporated herein by this reference
(the "Real Property") together with a non-exclusive right, subject to the provisions
hereof, to use all appurtenances thereto, including, but not limited to, any common
areas or other areas of the Real Property designated by the Landlord for the exclusive
or non-exclusive use of the tenants of the Building. The Building, Real Property,
common areas and other appurtenances may hereinafter be referred to as the "Building"
or the "Building Complex". 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 for 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 fifteen (15) months
(the "Primary Lease Term") commencing at 12:01 a.m. on January 1, 1998 (the "Commencement
Date") and terminating at 11:59 p.m. on March 31 1999 (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 below, the Commencement Date
shall mean and refer to the date the Premises are Ready for Occupancy. The Primary
Lease Term as it may be extended shall be referred to herein as the "Term".
(b) Other than as set forth in a work letter attached hereto
and incorporated herein as EXHIBIT C (the "Work Letter"), Landlord shall have no
obligation for completion or remodeling of the Premises and Tenant shall accept
the Premises in its "AS IS" condition on the date Landlord delivers possession to
the Tenant. If Landlord has agreed to complete the work in the Premises, such work
shall be set forth in the Work Letter. If the Premises are not Ready for Occupancy
(as hereafter defined) on the Commencement Date, unless such delay is caused by
Tenant, its agents or employees, the rental obligations hereunder shall not commence
until the Premises are Ready for Occupancy, provided, however, other than the payment
of Rent, this Lease and all covenants, conditions and terms hereof shall be in full
force and effect. The postponement of the Tenant's obligation to pay Rent and other
sums herein provided for such period shall be in full settlement for all claims
which Tenant might otherwise have by reason of the Premises not being Ready for
Occupancy on the Commencement Date. 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 commencement of the 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. "Ready for Occupancy" as used herein shall mean the date that Landlord
shall have substantially completed any remodeling work to be performed by Landlord
to the extent set forth in the Work Letter. The certificate of Landlord's representative
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
has agreed to perform work in the Premises, Landlord shall provide Tenant with notice
that the Premises are Ready for Occupancy.
1 2
(c) If, as a result of the postponement or acceleration of
the Commencement Date, the Term would begin other than on the first day of a calendar
month, the Commencement Date shall be delayed until the first day of the next calendar
month and the Primary Lease Term shall be calculated from such date. Tenant shall
pay proportionate Rent at the same monthly rate set forth herein (also in advance)
for such partial month.
(d) "Lease Year" as used in this Lease shall mean each twelve
(12) month period beginning with the Commencement Date, or any anniversary thereof
and ending on the preceding day one (1) year later.
(e) 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 work which Landlord has agreed in writing to perform, if any, except as otherwise
set forth in this Lease and except as may be reflected in any written agreement
to the contrary (i.e. a punchlist), signed by both Landlord and Tenant.
3. RENT: Tenant shall pay to Landlord, rent for the Premises ("Base
Rent") as follows:
ANNUAL MONTHLY
RENT PERIOD BASE RENT BASE RENT
--------------------------------------------------------------------------
January 1, 1998 through March 31, 1999 $206,190.00 $17,182.50
All installments of Base Rent shall be payable in advance, on the first (lst) day
of each calendar month during the Term hereof. Rent for any period less than a full
calendar month shall be prorated based upon the number of days during said month
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. Base Rent and Additional Rent may be referred to herein as "Rent". This Lease
is considered a "modified gross lease" with the "Base Year" Operating Expenses included
in the Base Rent. Increases in Operating Expenses, if any, subsequent to the Base
Year shall be passed-through to Tenant based upon "Tenant's Prorata Share" of the
Building as more specifically described in Article 5 hereof.
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 zero Dollars ($0.00), the receipt
of which is hereby acknowledged, as security for the payment by Tenant of the Rent
and all other sums herein agreed to be paid and for the faithful performance of
all the terms, conditions and covenants of this Lease. If, at any time during the
Term hereof, Tenant shall be in default in the performance of any provisions of
this Lease, Landlord shall have the right, but shall not be obligated, to use said
deposit, or so much thereof as necessary, in payment of any Rent in default, reimbursement
of any expense incurred by Landlord, and in payment of any damages incurred by the
Landlord by reason of Tenant's default. In such event, Tenant shall, on written
demand of Landlord, forthwith remit to Landlord a sufficient amount in cash to restore
said deposit to its original amount. In the event said deposit has not been utilized
as aforesaid, said deposit, or as much thereof as has not been utilized for such
purposes, shall be refunded to Tenant, without interest, within sixty (60) days
after the termination of this Lease upon full performance of this Lease by Tenant
and vacation of the Premises by Tenant. Landlord shall have the right to commingle
said deposit with other funds of Landlord. Landlord may deliver the 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. At Landlord's
election, Landlord may have the Security Deposit held by Landlord's manager in a
separate security deposit trust, trustee or escrow account established and maintained
by such manager with respect to certain security deposits of tenants within the
Building. Unless Tenant is so notified (i) Landlord will hold the Security Deposit
and be responsible for its return; and (ii) Tenant may request
2 3 return of the Security Deposit by
giving Landlord written notice in accordance with the provisions of the Lease and
Landlord's manager, if any, agrees that in the event of a dispute of the ownership
of the Security Deposit, the manager will not wrongfully withhold Landlord's true
name and current mailing address from Tenant. In the event such interest be sold,
and thereupon, Landlord shall be discharged from further liability with respect
to such Security Deposit. If the claims of Landlord exceed said Security Deposit,
Tenant shall remain liable for the balance of such claims.
5. ADDITIONAL RENT:
(a) The following terms shall have the following meanings
with respect to the provisions of this Paragraph 5:
(1) "Building Rentable Area" shall mean approximately
76,285 square feet which is all the rentable space available for lease in the Building.
If there is a significant change in the aggregate Building Rentable Area, of a permanent
nature, as a result of an addition to the Building, partial destruction thereof
or similar circumstance, Landlord's space planner or architect shall determine and
make an appropriate adjustment to the provisions herein. Unless otherwise provided
herein, any statement of square footage set forth in this Lease or that may have
been used in calculating Rent and/or Tenant's Pro Rata Share of Operating Expenses
is an approximation which Landlord and Tenant agree is reasonable, and the Rent
and Tenant's Pro Rata Share based thereon is not subject to revisions during the
Primary Lease Tenn whether or not the actual square footage is more or less.
(2) "Tenant's Pro Rata Share" shall mean a fraction,
the numerator of which is the rentable area of the Premises (i.e. approximately
11,298 square feet) and the denominator of which is the Building Rentable Area,
and is equal to 14.81%.
(3) "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 as determined by Landlord and shall include,
but not be limited to:
(i) Costs of supplies, including but
not limited to the cost of "relamping" all standard Building lighting as the same
may be required from time to time.
(ii) Costs incurred in connection with
obtaining and providing energy for the Building, 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 the maintenance
and repair work.
(vi) Costs of maintenance and replacement
of landscaping and sprinkler systems; seasonal/holiday decorations; and costs of
supplies, maintenance, repair, striping and repaving of parking areas, common areas,
plazas and other areas of the Building, including trash and snow removal.
(vii) Insurance premiums, including
fire and all-risk and special form coverage, together with loss of rent endorsement;
the part of any claim required to be paid under the
3 4 deductible portion of any insurance
policy carried by Landlord in connection with the Building; commercial liability
insurance; and any other insurance carried by Landlord on the Building or any component
parts thereof.
(viii) Labor costs, including wages and
other payments, 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.
(ix) Professional building management
fees in an amount comparable to that charged for comparable buildings in comparable
projects in the Denver metropolitan area.
(x) 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) incurred for the normal prudent operation of the Building.
(xi) The costs of capital improvements
and structural repairs and replacements made in or to the Building or the cost of
any machinery or equipment installed in the Building in order to conform to changes,
in any applicable laws, ordinances, rules, regulations or orders of any governmental
or quasi-governmental authority having jurisdiction over the Building (herein, "Required
Capital Improvement"); 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 (not to exceed 55 cents
($.55) per rentable square foot for all other capital improvements and structural
repairs and replacements reasonably necessary to permit Landlord to maintain the
Buildings as an office building. The expenditures for Required Capital Improvements
and Cost Savings Improvements shall be amortized at a market rate of return over
the useful life of such capital improvement or structural repair or replacement
(as reasonably determined by Landlord).
(xii) All real and personal property
taxes and assessments levied against the Building 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
as a result of the use, ownership or operation of the Building 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
shall be determined as if the Building 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.
"Assessments" shall include any and all so-called special assessments, license taxes,
business license fees, business license taxes, commercial rental taxes, levies,
charges or taxes imposed by any authority having the direct power to tax, including
any city, county, state or federal government, or any school, agricultural, lighting,
water, drainage or other improvement or special district thereof, against the Premises,
the Building, or against any legal or equitable interest of Landlord therein (all
of the foregoing taxes and assessments are collectively referred to herein as "Taxes");
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 any 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. Tenant shall pay to Landlord, as Additional Rent, any excise,
sales, privilege or other tax, assessment or other charge (other than income or
franchise taxes) imposed, assessed 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.
4 5
(4) 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.
(5) 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; costs of repairs
or other work occasioned by fire, windstorm or other casualty to the extent of insurance
proceeds received; and depreciation on the Building.
(b) It is hereby agreed that Tenant shall pay to Landlord
as Additional Rent during each calendar year during the Term hereof Tenant's Pro
Rata Share of Operating Expenses in excess of the Base Year Operating Expenses.
The Base Year Operating Expenses as used herein shall mean the actual Operating
Expenses for the Building for the calendar year 1998. An estimated amount of such
Operating Expenses excess shall be payable monthly 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.
(1) Landlord shall deliver to Tenant, as soon as
practicable following the end of any calendar year of the Lease Term, an estimate
of the increases, if any, in Operating Expenses in excess of the Base Year 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 increases, if any,
in 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 increases in 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 additional amount for each month of the new calendar year
elapsed before receipt of such Budget Sheet to Landlord within thirty (30) days
after receipt of the Budget Sheet. Upon receipt of the Budget Sheet, Tenant shall
thereafter pay the amount of its monthly Tenant's Pro Rata Share of increases, if
any, in Operating Expenses as set forth in the Budget Sheet. As soon as practicable
following the end of any calendar year, usually by 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 increases,
if any, in Operating Expenses for the calendar year just completed (the "Statement"),
and the difference, if any, between the actual Tenant's Pro Rata Share of increases
in Operating Expenses for the calendar year just completed and the estimated amount
of Tenant's Pro Rata Share of increases in 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 Share of increases
in Operating Expenses for the period covered by the Statement is higher than the
estimated Tenant's Pro Rata Share of increases in Operating Expenses which Tenant
previously paid during the calendar year just completed, Tenant shall 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 increases, if any, in Operating
Expenses for the period covered by the Statement is less than the estimated Tenant's
Pro Rata Share of increases, if any, in 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 increases in Operating Expenses for such partial year
shall be adjusted accordingly to reflect the number of months in such year during
which Tenant leased the Premises.
(d) After written notice to Landlord, Tenant shall have the right
at its own expense and at a reasonable time during Landlord's regular business hours
within thirty (30) days after receipt of the Statement to engage a certified public
accountant ("Tenant's Accountant") to audit Landlord's books relevant to the disputed
amount of Landlord's Statement of Operating Expenses under this Paragraph 5. In
the event Tenant does not audit Landlord's books and deliver the results thereof
to Landlord within said 30-day period, the terms and amounts set forth in the Statement
shall be deemed conclusive and final. In the event Tenant's examination reveals
that an error has been made in Landlord's determination of Tenant's Pro Rata Share
of increases in Operating Expenses and Landlord agrees with such determination,
then the amount of such adjustment shall be
5 6 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 increases
in Operating Expenses, and Landlord disagrees with the results thereof, Landlord's
accountant and Tenant's Accountant shall endeavor to agree on the matter. In the
event Landlord's accountant and Tenant's Accountant are unable to reconcile their
audits within thirty (30) days after Tenant's audit, both accountants shall mutually
agree upon a third accountant, whose determination of Tenant's Pro Rata Share of
increases in Operating Expenses shall be conclusive. In the event the amount of
error by Landlord is determined to be ten percent (10%) or more of the total Operating
Expenses set forth in Landlord's Statement, the reasonable costs of the additional
two audits (excluding any charges billed on a contingency fee basis) 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%) of the total Operating
Expenses set forth in Landlord's Statement, the reasonable costs of the two audits
made pursuant to this subparagraph shall be paid by Tenant.
(e) Landlord's failure during the Lease Term to prepare and
deliver any Statements or Budget Sheet, 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.
(f) Notwithstanding anything contained herein to the contrary,
if any lease entered into by Landlord with any tenant in the Building provides for
a separate basis of computation for any Operating Expense with respect to its leased
premises, then, to the extent that Landlord determines that an adjustment should
be made in making the computations herein provided for, Landlord shall be permitted
to modify the computation of Base Operating Expenses, Rentable Area, and Operating
Expenses for a particular calendar year, in order to eliminate or otherwise modify
any such expenses which are paid for in whole or in part by such tenant. Furthermore,
in making any computations contemplated hereby, Landlord shall also be permitted
to make such adjustments and modifications to the provisions of this Paragraph 5
as may be reasonably necessary to achieve the intention of the parties hereto.
(g) In the event the Building Rentable Area is not fully
occupied during any particular calendar year, Landlord shall adjust those Operating
Expenses which are affected by the occupancy rates for the particular calendar year,
or portion thereof, as the case may be, to reflect an occupancy of not less than
ninety-five percent (95%) of all such Building Rentable Area.
6. CHARACTER OF OCCUPANCY:
(a) The Premises are to be occupied for administrative and
general office use and for no other purpose without the prior written consent of
Landlord.
(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, (ii) make unobtainable from reputable insurance companies authorized
to do business in Colorado any fire insurance with extended coverage, or liability,
boiler or other 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 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, (vi) discharge objectionable fumes, vapors or odors into the air
conditioning system or into any 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 any of the Building services or impair or interfere with
or tend to impair or interfere with the use of any of the other areas of the Building
by, or occasion discomfort, or annoyance to Landlord or any of the other tenants
or occupants of the Building, any such impairment or interference to be based upon
the judgment of Landlord, (viii) violate any permit, certificate of
6 7 occupancy, statute, ordinance or
other requirement of law applicable to the Building or the Premise, or (ix) commit
or permit to be committed physical damage, abuse or destructive use of the Premises.
(c) Tenant, at its sole cost, shall comply with all laws,
orders, statutes, ordinances or governmental rules or regulations of federal, state,
county, municipal authorities, quasi-governmental, and utility providers now in
force or which may hereafter during Tenant's Lease Term be enacted or promulgated
(the "Applicable Laws"), which impose a duty on Landlord or Tenant with respect
to the Premises, or the use or occupation thereof. Notwithstanding the foregoing
and subject to reimbursement as set forth in Section 5 above, Landlord will be responsible
for compliance of the Common Areas of the Building with Applicable Laws, including,
the Americans With Disabilities Act; provided, however, Landlord shall have no obligation
for compliance if such compliance is a result of Tenants use or occupancy of its
Premises.
7. SERVICES AND UTILITIES:
(a) Subject to the provisions of subparagraph (b) below,
Landlord agrees, and in accordance with standards from time to time prevailing for
comparable buildings in the Denver metropolitan area, to furnish to the Building
in which the Premises are located: (i) electric current to the Premises for electricity
service for lighting and light office machines to the extent of Tenant's Standard
Electrical Capacity ("Tenant's Standard Electrical Capacity" as used herein shall
mean and refer to electrical usage for standard lighting and ordinary office usage
including desktop office machines based upon a total of five (5) watts per rentable
square foot of the Premises); (ii) to famish running water at those points of supply
for general use of tenants of the Building; (iii) to famish during Ordinary Business
Hours (as described on Exhibit D hereto), such heated or cooled air to the Premises
and Common Areas as may, in the judgment of Landlord, be reasonably required for
the comfortable use and occupancy of the Premises and/or Building, provided that
the recommendation of Landlord's engineer regarding occupancy and use of the Premises
are complied with by Tenant and, with respect to cooled air, provided the same is
used only for standard office use; (iv) passenger elevators (at least one elevator
shall be available at all times, except in the case of emergencies or repair); (v)
to provide janitorial services for the Premises (including such window washing of
the outside or exterior windows as may, in the judgment of Landlord, be reasonably
required), such janitorial services shall be provided after Ordinary Business Hours
on Monday through Friday only, except Legal Holidays; (vi) snow and ice removal
for parking areas and building entries to the Building as may, in the judgment of
Landlord, be reasonably required for safe access to the Building, and Common Areas.
Landlord's cost of providing all of the foregoing services shall be expenses included
within the term Operating Expenses as used in Paragraph 5 of this Lease. If, at
the request of Tenant, Landlord furnishes Tenant with services or utilities beyond
those described above in this subparagraph (a), Tenant shall pay Landlord as Additional
Rent for such additional services, at charges established by Landlord from time
to time, within ten days after receipt of a statement from Landlord for such services.
Landlord shall have full authority and control over all Building systems.
(b) Tenant agrees that Landlord shall not be liable for failure
to supply any required 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 or
at any time as it may be necessary by reason of accident, repairs, alterations,
improvements, acts of God, or any other happening beyond control of Landlord.
(c) "Legal Holidays" as used herein shall mean national holidays
on which the U.S. Postal Service is closed.
(d) Landlord shall have the right at any time and from time
to time during the Lease Term to contract for utility services from any company
providing such services as Landlord may select in its sole opinion. Such selection
right includes the right to control or limit access to any companies providing electricity
service, telephone service or any other service utilized by the Building systems.
Additionally, Landlord shall have sole control of the central service points from
which Tenant's electrical or telecommunication services, including computers, are
to be attached. Tenant shall be solely responsible for the costs of all such connections
related to Tenant's telephone or telecommunication services.
7 8
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 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) Subject to reimbursement in Paragraph 5 above, Landlord
shall (i) make repairs to HVAC mechanical, life safety and electrical systems in
the Premises to the extent such systems are Building Standard as are deemed necessary
by Landlord for normal maintenance operations of the Building; and (ii) provide
upkeep, maintenance and repairs to all Common Areas. Except as provided in this
paragraph, or otherwise expressly required in this Lease, Landlord is not required
to make improvements or repairs to the Premises during the Term. The term "Building
Standard" as used in this Lease shall mean those Tenant finish items re-stocked
or in place in the Premises which Landlord normally provides to Tenant (as examples,
ceiling grid, sprinklers, HVAC and similar items).
(b) Tenant, at Tenant's sole cost and expense, shall maintain
the Premises, in good order, condition and repair reasonable wear and tear excepted
including the interior surfaces of the ceilings, interior walls and floors, all
doors, door closure devices, door frames and locks, plumbing systems and any non-Building
Standard electrical systems or fixtures and/or improvements.
10. ALTERATIONS AND ADDITIONS BY TENANT:
(a) Tenant shall make no alterations, additions or improvements
to the Premises or any part thereof without obtaining the prior written consent
of Landlord, which consent shall not be unreasonably withheld, delayed or conditioned.
Landlord may impose as a condition to the consent such requirements as Landlord
may deem necessary in its sole discretion including, without limitation, the manner
in which the work is done, a right of approval of the contractors by whom the work
is to be performed, and the time that it is performed. Such alterations, additions
or improvements shall be performed in compliance with all applicable laws and requirements
of public authorities, and shall be performed in a good and workmanlike manner using
new materials and equipment at least equal in quality to the original installation
in the Premises. If Landlord authorizes persons requested by Tenant to perform work
in the Premises, prior to commencement of any such work, Tenant shall deliver to
Landlord certificates issued by insurance companies qualified to do business in
the State of Colorado evidencing that all contractors and subcontractors engaged
by Tenant to perform such work have in fall force and effect workers' compensation,
public liability insurance and property damage insurance all in amounts, with companies
and in form satisfactory to Landlord. All such policies, excluding workers' compensation,
shall name Landlord and Landlord's lender as an additional named insured. Alterations,
additions and improvements shall be performed in a manner that will not unreasonably
interfere, delay or impose any additional expense upon Landlord in the maintenance
or operation of the Building or upon other tenant's use of their premises. Tenant
shall comply with all requirements of Landlord's insurance carriers and shall obtain
all necessary governmental permits and certificates required for any such work.
(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, unless Landlord, by notice given to
Tenant no later than fifteen (15) days prior to the end of the Lease Term, shall
elect to have Tenant remove all or any of such alterations, improvements or additions
(excluding non-movable office
8 9 walls), and in such event, Tenant
shall promptly remove, at its sole cost and expense, such alterations, improvements
and additions and restore the Premises to the condition in which the Premises were
prior to the making of the same, reasonable wear and tear excepted. All movable
partitions, machines and equipment which are installed in the Premises by or for
Tenant, without expense to Landlord, that 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. If any of Tenant's Property is removed, however, Tenant shall repair
or pay the cost of repairing any damage to the Building or the Premises resulting
from such removal.
11. ENTRY BY LANDLORD:
(a) Landlord and its agents shall have the right to enter
the Premises at all reasonable times and following reasonable notice which may be
oral 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
and prospective tenants of the Building, and to make such alterations, repairs,
improvements or additions to the Premises or to the Building as Landlord may deem
necessary or desirable. Landlord and its agent may enter the Premises at all times
for the purpose of responding to an actual or apparent emergency. Landlord shall
retain a master key to the Premises. Any such entry shall not constitute an eviction
or entitle Tenant to abatement of Rent. All entries by Landlord and its agents shall
cause the least practicable interference with Tenant's business.
(b) Tenant shall be entitled to two (2) 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 or Building and Tenant will keep the Premises
and Building 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 agrees
to indemnify, defend and save Landlord and Landlord's lender harmless of and from
all liability, loss, damage, costs or expenses, including attorneys' fees on account
of any claims of any nature whatsoever including claims or liens of laborers or
materialmen or others for work performed for or materials or supplies furnished
to Tenant or persons claiming under Tenant. Tenant shall give Landlord at least
ten (10) days written notice of the expected date of commencement of any work relating
to alterations in the Premises to allow Landlord an opportunity to post the Premises
with a notice of nonliability. If Tenant desires to contest any claim of lien, Tenant
shall furnish to Landlord adequate security of at least one hundred and fifty percent
(150%) of the amount of the claim plus estimated costs and interest, or, at Tenant's
option, file a bond with the appropriate court and obtain a release of the lien
pursuant to Colorado law. If Tenant shall fail to pay any charge for which such
a lien or suit to foreclose such a lien has been 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 reasonable attorneys' fees incurred in connection
therewith, shall be immediately due from Tenant to Landlord as Additional Rent.
13. DAMAGE TO PROPERTY, INJURY TO PERSONS:
(a) Tenant, as a material part of the consideration to be
rendered to Landlord under this Lease, hereby waives all claims of liability that
Tenant or Tenant's legal representatives, successors or assigns may have against
Landlord, and Tenant hereby indemnifies and agrees to hold Landlord harmless from
any and all claims of liability for any injury or damage to any person or property
whatsoever: (1) occurring in, on or about the Premises or any part thereof, and
(2) occurring in, on or about the Building, when such injury or damage is caused
in part or in whole by the act, neglect, fault or omission of Tenant, its agents,
contractors or employees or where such injuries are the result of the violation
of the provisions of this Lease by any of such persons. Tenant further agrees to
indemnify and to hold Landlord harmless from and against any and all claims
9 10 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 or employees. 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 co-tenant or other occupant of the Building,
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
an "all risk" insurance policy, Tenant agrees to pay for all damage to the Building,
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, its agents
or employees.
(c) Neither Landlord nor its agents or employees shall be
liable for any loss of or damage to property occurring by theft or otherwise, nor
for 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 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; provided, however, nothing contained herein shall
be construed to relieve Landlord from liability for any personal injury resulting
from its negligence. The keeping or storing of all Tenant's property in the Premises
or in the Building shall be at the sole risk of Tenant. Neither Landlord nor its
agents or employees shall be liable for changes in or to exterior light or the view
from the Premises, nor shall Landlord be liable to Tenant or its officers, employees,
guests or invitees for any damages arising from any latent defect in the Premises
or in the Building. 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 Landlord, its agents or employees, by reason 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, its agents or employees, or which gives rise to
Tenant's obligation to indemnify Landlord, Tenant 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) Subject to reimbursement as described in Paragraph 5
above, Landlord agrees to carry and maintain the following insurance during the
Term of this Lease and any extension hereof: "all risk" coverage and commercial
general liability insurance against claims for personal injury, including death
and property damage in or about the Premises and the Building to the extent of Building
Standard tenant finish (excluding Tenant's Property), including loss of rental insurance
on such terms and conditions, in such amounts and from such companies as Landlord
deems appropriate from time to time.
(b) Tenant shall procure and maintain at its own cost at
all times during the term of this Lease and any extensions hereof, hazard, "all
risk" coverage on Tenant's property and the contents of the Premises, commercial
general liability insurance, including coverage for bodily injury, property damage,
personal injury (employee and contractual liability exclusions deleted), products
and completed operations, contractual liability, owner's protective liability, host
liquor legal liability and broad form property damage with the following limits
of liability: One Million Dollars ($1,000,000.00) each occurrence combined single
limit for bodily injury, property damage and personal injury; One Million Dollars
($1,000,000.00) aggregate for bodily injury and property damage for products and
completed operations. All such insurance shall be procured from a company or companies
with a Best's Key Rating of "A" or better authorized to do business in Colorado,
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
10 11 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 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, the Premises and rental value or business interruption) occurring
during the Term of this Lease to the extent to which it is capable of being insured
under an "all risk" form insurance policy or policies whether carried or not. Each
party shall apply to its insurer to obtain said waivers and obtain any special endorsements,
if they are required by its insurer, to evidence compliance with the aforementioned
waiver and shall bear the costs therefore, if any.
(d) Any Building employee to whom property shall be entrusted
by or on behalf of Tenant shall be deemed to be acting as Tenant's agent with respect
to such property and neither Landlord, the Building manager, if any, nor their respective
agents shall be liable for any damage to the property of Tenant or others entrusted
to employees of the Building, nor for the loss of or damage to any property of Tenant
by theft or otherwise and Tenant shall indemnify Landlord of and from any loss or
damages, costs or actions Landlord may suffer or incur as a result of such loss
or damage to Property.
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 Building Standard tenant finish and Landlord's Work as defined in EXHIBIT
C, if any, and to the extent such insurance proceeds available therefor, provided
such repairs and restoration can, in Landlord's reasonable opinion, be made within
one hundred eighty (180) days after the occurrence of such damage without the payment
of overtime or other premiums. 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, as may be reasonably determined
by Landlord, (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 sixty (60) days after such casualty if it estimates
that it will be unable to repair and restore the Premises within said one hundred
eighty (180) 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 estimates it cannot make
such repairs and restoration within said one hundred eighty (180) day period, then
Landlord or Tenant may, by written notice to the other, cancel this Lease, provided
such notice is given to the other 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 or contractors, employees.
If the Lease is so canceled, Tenant shall pay Rent, properly apportioned up to the
date of such casualty, this Lease shall terminate from the date of said written
notice of cancellation 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). 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. 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
11 12 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.
(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 one hundred eighty (180) 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 twenty-five percent (25%) or more 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. Tenant thereupon shall surrender the Premises and all interest
therein to Landlord, and Landlord may reenter and take possession of the Premises.
Landlord shall receive the entire award or consideration for the portion of the
Building so taken and no award for any partial or entire taking shall be apportioned.
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, to the extent Landlord's award is not
diminished. 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.
(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 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) Except as hereinafter specifically authorized, Tenant
shall not assign this Lease or any interest therein, or sublet all or any part of
the Premises, or permit any part of the Premises to be used or occupied by any persons
other than Tenant and its employees, by operation of law or otherwise, nor shall
Tenant permit any part of the Premises to be used or occupied by any licensee or
concessionaire or permit any persons other than Tenant, its employees and invitees,
to be upon the Premises.
(b) Tenant shall not sublet any part of the Premises, nor
assign this Lease or any interest therein without the written consent of the Landlord
first being obtained, which said consent shall not be unreasonably withheld or delayed;
provided that: (i) Tenant has complied with the provisions of subparagraph (c) below
and Landlord has declined to exercise its rights thereunder; (ii) the proposed subtenant
or assignee is engaged in a business and the Premises will be used in a manner which
is in keeping with the then standards of the Building; (iii) the proposed subtenant
or assignee is a responsible party of reasonable financial worth in light of the
responsibilities involved and Tenant shall have provided Landlord with evidence
thereof; and (iv) Tenant is not in default hereunder at the time it makes its request
for such consent. Any assignment of the Lease or subletting of the Premises by the
Tenant, whether by consent of the Landlord or without the consent of the
12 13 Landlord (which would be in breach
of the Lease) shall not relieve Tenant of its obligations hereunder to Landlord,
and Tenant shall be primarily liable to Landlord for the performance of Tenant's
obligations hereunder, even after such subletting or assignment. In the event there
is a default in the performance of the terms of the Lease after an assignment or
subletting of the Premises to another party by Tenant, Landlord shall be entitled
to collect all sums due to Landlord under the Lease from Tenant, assignee, subtenant,
or occupant, or any one, combination of, or all of them, and to apply the net amount
collected to the sums due hereinunder, and collect the remainder of the sums due
and owing hereinunder from Tenant. No assignment, subletting, or occupancy of the
Premises or consent thereto by Landlord shall be deemed a waiver of the Landlord's
right to hold Tenant responsible for the complete performance by Tenant of the covenants
on the part of Tenant contained herein. No collection of monies due from any assignee,
subtenant, or occupant other than Tenant, shall be deemed a waiver of the Landlord's
rights, to hold Tenant primarily responsible for the performance by Tenant of the
covenants on the part of Tenant contained in the Lease, nor shall the same constitute
a release of the Tenant from performance of the same. Consent by Landlord to an
assignment or subletting shall not in anyway relieve or release Tenant from obtaining
the express consent in writing of Landlord to any further assignment or subletting.
(c) Notwithstanding anything contained above to the contrary,
in the event Tenant requests Landlord's consent to sublet twenty-five percent (25%)
or more the Premises or to assign twenty-five percent (25%) or more of its interest
in this Lease, Landlord shall have a right to: (i) consent to such sublease or assignment
in accordance with the criteria set forth herein; (ii) refuse to grant such consent
in accordance with the criteria set forth herein; or (iii) refuse to grant such
consent and terminate this Lease as to the portion of the Premises with respect
to which such consent was requested; provided, however, if Landlord refuses to grant
such consent and elects to terminate the Lease as to such portion of the Premises,
Tenant shall have the right within fifteen (15) days after notice of Landlord's
exercise of its right to terminate to withdraw Tenant's request for such consent
and remain in possession of the Premises under the terms and conditions of this
Lease. In the event the Lease is terminated as set forth herein, such termination
shall be effective as of the date set forth in a written notice from Landlord to
Tenant, which date shall in no event be more than thirty (30) days following such
notice.
(d) If in the event Tenant desires to sublease all or a portion
of the Premises or to assign the Lease, in whole or in part, Tenant shall notify
Landlord not less than thirty (30) days prior to the date Tenant desires to sublease
such portion of the demised Premises or assign the Lease ("Tenant's Notice"). Tenant's
Notice shall set forth the description of the portion of the Premises to be so sublet
or assigned and the conditions on which Tenant desires to sublet the Premises or
assign the Lease. Landlord shall have ten (10) days following receipt of Tenant's
Notice within which to elect to terminate the Lease as described above or notify
Tenant of Landlord's consent or denial of consent of such sublease or assignment.
(e) If Tenant collects any Rent or other amounts from a subtenant
or assignee in excess of the Base Rent and Tenant's Pro Rata Share of increases
in Operating Expenses, Tenant shall pay the Landlord as and when Tenant receives
the same, all such excess amounts received by Tenant less amounts actually paid
by Tenant for improvements, brokers' fees, or advertising expenses related to procurement
of a subtenant.
(f) A sale by Tenant of all or substantially all of its assets
or all or substantially all of its stock if Tenant is a publicly traded corporation,
a merger of Tenant with another corporation, the transfer of twenty-five percent
(25%) or more of the stock in a corporate tenant whose stock is not publicly traded,
or a transfer of twenty-five percent (25%) or more of the beneficial ownership interest
in a tenant which is a partnership or limited liability company, shall constitute
an assignment hereunder. Tenant shall be allowed without Landlord's consent to assign
the Lease or sublet the Premises to a related entity (i.e. a subsidiary, a parent
or affiliate).
(g) All documents utilized by Tenant to evidence any subletting
or assignment to which Landlord has consented shall be subject to prior approval
by Landlord or its counsel. Tenant shall pay to Landlord all of Landlord's costs
and expenses, including reasonable attorneys' fees incurred in determining whether
or not to consent to any requested sublease or assignment and in reviewing any documentation
related
13 14 thereto, which amount shall not
be less than Five Hundred Dollars ($500.00). In the event Landlord does not approve
such sublease or assignment due to rejection by Landlord's attorney, then, in such
event, Tenant shall not be responsible for Landlord's costs of attorneys' fees.
18. ESTOPPEL CERTIFICATE: Tenant and Landlord further agree at any
time and from time to time on or before five (5) days after written request by the
other party, to execute, acknowledge and deliver to the other 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), and such
other matters as may be reasonably required by such party, 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. In the event that Tenant
does not execute the statement required by this Paragraph, it shall be conclusive
upon Tenant that: (i) this Lease is in full force and effect, without modification
except as may be represented by Landlord; (ii) there are no uncured defaults in
Landlord's performance; and (iii) no more than one (1) month's Rent has been paid
in advance.
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;
(2) This Lease or the estate of Tenant hereunder
shall be transferred to or shall pass to or devolve upon any other person or party
in violation of the provisions of this Lease, except as permitted herein;
(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 thirty (30) 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 sixty (60) days after such institution or appointment;
(6) Tenant shall abandon the Premises. Tenant shall
be deemed to have vacated (but not abandoned) the Premises if Tenant has given Landlord
prior written notice of intention to vacate and continues to pay all Rent and other
charges due under the Lease, which vacation shall not in and of itself be a default
hereunder. If Tenant does vacate with notice and continued payment or otherwise,
Tenant's rights or options, if any, to extend the Term of the Lease shall be of
no further force and effect;
(7) Tenant shall fail to perform any of the other
agreements, terms, covenants or conditions hereof on Tenant's part to be performed,
and such nonperformance shall continue for a period of fifteen (15) days after 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
14 15 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
lien, as required herein;
(9) A guarantor of this Lease, if any, or a general
partner of Tenant (if Tenant is a general or limited partnership), becomes a debtor
under any state or federal bankruptcy proceedings, or becomes subject to receivership
or trusteeship proceedings, whether voluntary or involuntary; except in the case
of a guarantor, Tenant shall not be in default if a substitute guarantor, with acceptable
creditworthiness and financial abilities in light of the responsibilities of Tenant
hereunder, and otherwise acceptable to Landlord, is provided to Landlord within
forty-five (45) days; and
(10) All or any part of the personal property of Tenant
is seized, subject to levy or attachment, or similarly repossessed or removed from
the Premises.
(b) REMEDIES OF LANDLORD. If any one or more Event of Default
shall happen, then Landlord shall have the right at Landlord's election, then or
at any time thereafter, either:
(1) (a) Without demand or notice, to reenter
and take possession of the Premises or any part thereof and repossess the same as
of Landlord's former estate and expel Tenant 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. Should Landlord elect to reenter,
as provided in this subparagraph (1), 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, 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 such 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 conditions
and upon such other terms (which may include concessions of free Rent and alteration
and repair of the Premises) as Landlord, in its absolute discretion, may determine
and Landlord may collect and receive the rents therefor. Landlord shall in no way
be responsible or liable for any failure to relet the Premises, or any part thereof,
or for any failure to collect any Rent due upon such reletting. No such reentry
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 reentry and/or reletting to exercise its right to terminate
this Lease by giving Tenant such written notice, in which event the Lease will terminate
as specified in said notice.
(b) If Landlord elects to take possession
of the Premises as provided in this subparagraph (1) without terminating the Lease,
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 of the Premises after deducting all of Landlord's
expenses incurred in connection with such reletting, including, but without limitation,
all repossession costs, brokerage commissions, legal expenses, attorneys' fees,
expenses of employees, alteration, remodeling, 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 the rent received from
such reletting and the expenses incurred in connection therewith, as provided aforesaid,
will be made in determining the net proceeds received from such reletting. In addition,
in determining the net proceeds from such reletting, any rent concessions will be
apportioned over the term of the new lease. Tenant shall pay such amounts to Landlord
monthly on the days on which the Rent and all other amounts owing hereunder would
have been payable if possession had not been retaken and Landlord shall be entitled
to receive e same from Tenant on each such day; or
15 16
(2) To give Tenant written notice of intention to
terminate this Lease on the date of such given notice or on any later date specified
therein and, on the date specified in such notice, Tenant's right to possession
of the Premises shall cease and the Lease shall thereupon be terminated, except
as to Tenant's liability hereunder as hereinafter provided, as if the expiration
of the Term fixed in such notice were the end of the Term herein originally demised.
In the event this Lease is terminated pursuant to the provisions of this subparagraph
(2), Tenant shall remain liable to Landlord for damages in an amount equal to the
Rent and other sums which would have been owing by Tenant hereunder for the balance
of the Term had this Lease not been terminated less the net proceeds, if any, of
any reletting of the Premises by Landlord subsequent to such termination, after
deducting all Landlord's expenses in connection with such reletting, including,
but without limitation, the expenses enumerated above. Landlord shall be entitled
to collect such damages from Tenant monthly on the days on which the Rent and other
amounts would have been payable hereunder if this Lease had not been terminated
and Landlord shall be entitled to receive the same from Tenant on each such day.
Alternatively, at the option of Landlord, 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 amount equal to the worth at the time of
termination of the excess, if any, of the amount of Rent reserved in this Lease
for the balance of the Term hereof over the then Reasonable Rental Value of the
Premises for the same period plus all amounts incurred by Landlord in order to obtain
possession of the Premises and relet the same, including attorneys' fees, reletting
expenses, alterations and repair costs, brokerage commissions and all other like
amounts. It is agreed that the "Reasonable Rental Value" shall be the amount of
rental which Landlord can reasonably expect to obtain as rent for the remaining
balance of the Term.
(c) Suit or suits for the recovery of the rents and other
amounts and damages set forth hereinabove 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 whereon 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. 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 or now or hereafter
existing at law or in equity or by statute or otherwise, including, but not limited
to, suits for injunctive relief and specific performance. The exercise or beginning
of the exercise by Landlord of any one or more of the rights or remedies provided
for in this Lease or now or hereafter existing at law or in equity or by statute
or otherwise shall not preclude the simultaneous or later 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 such rights and remedies
shall be considered cumulative and non-exclusive. All costs incurred by Landlord
in connection with collecting any Rent or other amounts and damages owing by Tenant
pursuant to the provisions of this Lease, or to enforce any provision of this Lease,
shall also be recoverable by Landlord from Tenant. Further, if an action is brought
pursuant to the terms and provisions of the Lease, the prevailing party in such
action shall be entitled to recover from the other party any and all reasonable
attorneys' fees incurred by such prevailing party in connection with such action.
(d) 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 or 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 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 termination of this Lease, the same shall continue in force
and effect as to any provisions which require observance or performance by Landlord
or Tenant subsequent to such termination.
(e) Any Rent or other amounts owing hereunder which are
not paid within five (5) days after the date they are due shall thereafter bear
interest at the rate of one and one-half percent (1 1/2%) per month (the "Default
Rate") until paid. Further, in the event any Rent or other amounts owing hereunder
are not paid within said five (5) days after the date they are due, Landlord and
Tenant agree that Landlord will incur additional administrative expenses, the amount
of which will be difficult if not impossible to determine.
16 17 Accordingly, Tenant shall pay to
Landlord an additional, one-time late charge for any such late payment in the amount
of five percent (5%) of such payment. Any amounts paid by Landlord to cure any defaults
of Tenant hereunder, which Landlord shall have the right but not the obligation
to do, shall, if not repaid by Tenant within five (5) days of demand by Landlord,
thereafter bear interest at the Default Rate.
(f) Tenant hereby waives (to the extent allowed by law) any
and all rights to a trial by jury in suit or suits brought to enforce any provision
of this Lease or arising out of or concerning the provisions of this Lease
20. HOLDING OVER: Should Tenant, with Landlord's written consent,
hold over after the termination of this Lease and continue to pay Rent, 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, Tenant shall
pay monthly Rent equal to one hundred twenty-five percent (125%) of the last monthly
Rent and the other monetary charges as provided herein. Such tenancy shall only
be available to Tenant for a maximum of two (2) calendar months and may be terminated
by Landlord or Tenant by giving at least ten (10) days written notice prior to the
end of the first hold over calendar month. None of the terms in the paragraph or
the fact that the Tenant is allowed to hold over shall be considered as an assurance
to the Tenant that it may continue occupancy of the Premises after the expiration
of the Term of this Lease, or as an extension of the Term of this Lease by the Landlord
on any basis, nor as a waiver of any of the Landlord's rights to terminate this
Lease and re-enter the Premises. Nothing contained herein shall be construed to
give Tenant the right to holdover at any time, and Landlord may exercise any and
all remedies at law or in equity to recover possession of the Premises, as well
as damages incurred by Landlord due to Tenant's failure to vacate the Premises and
deliver possession to Landlord as herein provided. Tenant shall reimburse Landlord
and indemnify Landlord against all damages incurred by Landlord from any delay by
Tenant in vacating the Premises.
21. COMMON AREA AND PARKING: 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 (the "Common Area") 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. Any and all parking privileges granted to Tenant
are described on EXHIBIT F attached hereto and made a part hereof.
22. SURRENDER: 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 as Landlord shall require Tenant
to remove 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 on all amounts not paid by Tenant
within five (5) days of demand, until paid in full. Tenant's obligation hereunder
shall survive the expiration or other termination of this Lease. All movable furniture
and personal effects of Tenant not removed from the Premises upon the vacation or
abandonment of the Premises 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.
23. 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
17 18 grants of term of the real property
and/or the Building 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. 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 deed of trust or mortgage or any of their respective successors in
interest or assigns may request evidencing such subordination. In the event that
Tenant does not execute such documents as may be required to confirm the subordination
set forth in this Paragraph, Tenant shall be in default under the Lease without
the necessity of further notice. 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 if such superior party succeeds to Landlord's intent in the Lease,
Tenant 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 or to all successor owners of the Building whether or not such ownership is
acquired as a result of a sale, through foreclosure of a deed to trust or mortgage,
otherwise and agrees to confirm such attornment in writing.
(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.
(c) If, in connection with the procurement, continuation
or renewal of any financing for which the Building 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, condition or delay 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.
24. 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 to the commencement of a suite 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.
25. 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 notices or demands required or permitted to be given
to Landlord hereunder shall be in writing, and shall be deemed duly served when
received, if hand delivered, or three (3) days after deposited in the United States
mail, with proper postage prepaid, certified or registered, return receipt requested,
addressed to Landlord in care of:
Fleisher-Smyth Company
2060 Broadway, Suite 250
Boulder, CO 80302
Attn: Clark Smyth
18 19 All notices or demands required
to be given to Tenant hereunder shall be in writing, and shall be deemed duly served
when received, if hand delivered, or three (3) days after deposited 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: Abacus Direct Corporation,
8774 Yates Dr., Westminster, Colorado 80030. Landlord shall have the right to designate
in writing, served as above provided, a different address to which notice is to
be provided. The foregoing shall in no event prohibit notice from being given as
provided in Rule 4 of the Colorado Rules of Civil Procedure, as the same may be
amended from time to time.
26. 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 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.
27. BROKERAGE: Both Landlord and Tenant represent and warrant to each
other that neither party has dealt with any broker, agent or other person in connection
with this transaction and that no broker, agent or other person brought this transaction
other than Fleisher-Smyth Company acting as Landlord's agent and The Staubach Company-Front
Range, LLC, acting as Tenant's Exclusive Representative. Tenant agrees to indemnify
and hold Landlord harmless from and against any claims, expense or liability (including
costs of suit and reasonable attorneys' fees) by any broker, agent, or other person
claiming a fee, commission or other compensation by virtue of having dealt with
Tenant with regard to this leasing transaction. Tenant's renewal of this Lease,
expansion of Premises, modification of Lease, or exercise of any option contained
in this Lease is conditioned upon Landlord not paying any real estate leasing commissions
or fees pertaining thereto to any broker, agent or other person which Tenant chooses
to utilize. 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 leasing of
any additional or expansion space in the Building or renewals or extensions of this
Lease, except as may be provided by Landlord's separate written agreement. 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. The provisions of this Paragraph
shall survive the expiration or termination of the Lease.
28. 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.
29. SIGNAGE: 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, except for one Building Standard
suite designation sign and one line on the Building directory which Landlord agrees
to provide.
19 20
30. HAZARDOUS MATERIALS: Landlord represents that it has no knowledge
of any present or past Hazardous Waste contamination, spills or violations in the
Building.
(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 prior written consent of
Landlord (which Landlord shall not unreasonably withhold or delay 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 Materials 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, or any part thereof, or if contamination of the Premises or Building
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, damages
for the loss or restriction on use of any rentable or usable space or of any amenity
of the Premises or Building, damages arising from any adverse impact on marketing
of space in the Building, and sums paid in settlement of claims, reasonable 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, such 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 or the soil or ground water
on or under the Building. 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 Material),
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 substance or
material if defined or designated as hazardous or toxic substance, or other similar
term, by any federal, state or local law, statute, regulation, or ordinance affecting
the Building 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.
(c) In the event Tenant causes or permits Hazardous Material
to be brought upon, kept, or used in or about the Premises, with or without Landlord's
consent, in addition to all other remedies under this Lease, at law, or in equity,
Landlord shall be entitled to have an environmental audit performed at reasonable
intervals during the Term, in Landlord's reasonable judgment, the reasonable costs
and expense of which shall be paid by Tenant.
31. SUBSTITUTION OF PREMISES: INTENTIONALLY DELETED
32. MISCELLANEOUS:
(a) The rules and regulations attached hereto as EXHIBIT
D, 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.
20 21
(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 thereto, 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 Lease shall be paid
to Tenant.
(c) 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
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 subparagraph (g) hereof. Tenant must give notices to mortgagees
or superior interests only if Landlord has provided Tenant with the names and addresses
of such parties (e.g. see 33(g).
(d) 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, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there shall be added as
a part of this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal, valid
and enforceable, provided such addition does not increase or decrease the obligations
of or derogate from the rights or powers of either Landlord or Tenant.
(e) 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.
(f) 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.
(g) 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 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 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.
21 22
(h) 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.
(i) 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 lesser 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.
(j) Landlord shall have the right to construct other buildings
or improvements in any plaza 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 plazas or other areas. Landlord, during the entire term of this Lease,
shall have the right to change the number and name of the Building or Building at
any time without liability to Tenant.
(k) Tenant acknowledges and agrees that it has not relied
upon any statements, representations, agreements or warranties, except such as are
expressed in this Lease.
(l) As part of the services Landlord provides hereunder,
Landlord may elect to provide a concierge or security guard for more efficient operation
of the Building, and the cost therefor shall be included as an Operating Expense.
Landlord is not obligated to provide such services at any time or for any length
of time. Tenant expressly acknowledges that Landlord has not represented to Tenant
that the Building is a secure building and Landlord assumes no duty to Tenant, its
agents, employees, invitees or others because Landlord provides such service.
(m) Tenant and Landlord and the parties executing this Lease
on behalf of each of them represent to each other that they are 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.
(n) This Lease shall be governed by and construed in accordance
with the laws of the State of Colorado.
(o) 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.
(p) Tenant shall not use the name of the Building 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.
(q) 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.
33. CONFIDENTIALITY: The parties acknowledge and agree that the terms
and conditions of this Lease which are not generally known to the public (collectively,
the "Lease Information") is confidential and is proprietary property of the parties,
and that such Lease information will not be disclosed or discussed with any other
person except as may be specifically provided below; provided that the parties may
disclose lease
22 23 information (i) to their attorney's,
accountants, employees, brokers, contractors, property managers and agents; (ii)
when required by court order applicable law or regulation; (iii) pursuant to any
litigation or legal process involving either party; and (iv) potential purchasers
of the property or lenders of the property. In the event a party is requested, pursuant
to or required by applicable law or regulation or by legal process, litigation or
court order, to disclose any Lease Information, the parties further agree to provide
each other with prompt notice of any such request to enable the parties to seek
a protective order or other appropriate remedy and/or waive compliance with the
provisions of this Section. Any breach by either party of the provisions of this
Section shall entitle the other party to any remedies under law or equity or remedies
as set forth in this Lease; provided, that neither party may terminate this Lease
solely because of the other party's breach of this Section.
34. TIME OF THE ESSENCE: Time is of the essence under this Lease,
and all provisions herein relating thereto shall be strictly construed. Unless waived
by Landlord (which it shall have the right, but not the obligation, to so do), this
Lease is contingent upon execution and delivery by Tenant to Landlord no later than
5:00 p.m. Denver, Colorado time, December 2, 1997.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day
and year first above written.
LANDLORD:
WESTPIKE LLC, a Colorado limited liability company;
1325 GARFIELD LIMITED LIABILITY COMPANY, a Colorado
limited liability company; 520 COOPER LIMITED
LIABILITY COMPANY, a Colorado limited liability
company; and PHILIP M. HOLSTEIN, an individual; and
MIRIAM SIMMS, an individual
By: /s/ CLARK SMYTH
------------------------------------------------
Clark Smyth, President
Fleisher-Smyth Company
its designated property manager
TENANT:
ABACUS DIRECT CORPORATION, a Delaware corporation
By: /s/ CARLOS SALA
------------------------------------------------
Printed Name: Carlos Sala
---------------------------------------
Title: Chief Financial Officer
----------------------------------------------
EXHIBITS
EXHIBIT A The Premises
EXHIBIT B Real Property
EXHIBIT C Work Letter
EXHIBIT D Rules and Regulations
EXHIBIT E Estoppel and Commencement Date
Certificate
EXHIBIT F Parking
23 24
LEASE ADDENDUM
THIS LEASE ADDENDUM dated this 2nd day of December, 1997, is to that certain
Lease Agreement, ("Lease" herein), dated December 2, 1997, by and between WESTPIKE
LLC, a Colorado limited liability company; 1325 GARFIELD LIMITED LIABILITY COMPANY,
a Colorado limited liability company; 520 COOPER LIMITED LIABILITY COMPANY, a Colorado
limited liability company; and PHILIP M. HOLSTEIN, an individual; and MIRIAM SIMMS,
an individual (collectively the "Landlord") and ABACUS DIRECT CORPORATION, a Delaware
corporation ("Tenant") with respect to the Premises known and described as approximately
11,298 rentable square feet, located on the first floor, being Suite 110 (the "Premises"),
located in that certain Building known as Westpark Place Office Building ("Building"
or "Building Complex" herein) located at 8700 Turnpike Dr., Westminster, Colorado.
In the event of any conflict between the terms and provisions of the printed portion
of the Lease and the terms and provisions of this Lease Addendum, the terms and
provisions of this Addendum shall control.
1. Option to Renew. Provided that Tenant is not in default under
any of the terms, conditions or provisions of the Lease at the time that notice
is required, as provided for herein, Tenant shall have two (2) options to renew
this Lease for an additional period(s) of three (3) months each ("Extended Term").
In order to exercise these Options to Renew, Tenant shall provide Landlord with
at least 120 days prior written notice of its intention to exercise this Option.
The terms and conditions of the Extended Term shall be the same as the initial term,
except that the Base Rental rate shall be 103% of the then current rental rate being
paid by Tenant. The Premises shall be leased for the extended term(s) in its then
current "as-is" condition. The Landlord shall not be obligated to pay a commission
to a broker representing the Tenant in the event the Tenant elects to exercise this
Option.
2. The Lease is modified to conform to the terms and conditions of
this Lease Addendum and except as herein modified is ratified and affirmed.
IN WITNESS WHEREOF, the parties hereto have caused this Lease Addendum
to be executed the day and year first written above.
LANDLORD:
WESTPIKE LLC, a Colorado limited liability company;
1325 GARFIELD LIMITED LIABILITY COMPANY, a Colorado
limited liability company; 520 COOPER LIMITED
LIABILITY COMPANY a Colorado limited liability
company; and PHILIP M. HOLSTEIN, an individual; and
MIRIAM SIMMS, an individual
By: /s/ CLARK SMYTH
------------------------------------------------
Clark Smyth, President
Fleisher-Smyth Company
its designated property manager
TENANT:
ABACUS DIRECT CORPORATION, a Delaware corporation
By: /s/ CARLOS SALA
------------------------------------------------
Printed Name: Carlos Sala
---------------------------------------
Title: Chief Financial Officer
----------------------------------------------
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