Colorado-Denver-1720 South Bellaire Street Office Building Lease - Provident Life and Accident Insurance Co. and Executive TeleCard SA
TOWER COLORADO
OFFICE BUILDING LEASE
THIS LEASE is made this 15th day of December, 1995, between PROVIDENT
LIFE AND ACCIDENT INSURANCE COMPANY, a Tennessee Corporation ("Landlord")
and EXECUTIVE TELECARD SA, ("Tenant"),
1. PREMISES: Landlord hereby leases to Tenant those certain
premises designated on the Plans attached hereto as EXHIBIT A and
incorporated herein by this reference (hereinafter the "Premises"),
consisting of a total of approximately 8,095 square feet of space
(Rentable Area) on the 10th floor, Suite 1000 of the building known as
Tower Colorado located at 1720 S. Bellaire, Denver, Colorado 80222
(hereinafter the "Building"), located on the real property more
particularly described on EXHIBIT B attached hereto and incorporated
herein by this reference, together with a non-exclusive right, subject to
the provisions hereof, to use all appurtenances thereunto, including, but
not limited to, parking garage, parking areas and any other areas
designated by Landlord for use by tenants of the Building (the Building,
real property on which the same is situated, parking areas, other areas
and appurtenances are hereinafter collectively sometimes called the
"Building Complex"). For purposes of this Lease, "Rentable Area" shall
mean a measure of area expressed in square feet computed by measuring the
distance between the walls which enclose the floor to the inside finished
surface of the dominant portion of the permanent outer building walls,
exclusive of any major vertical penetrations of the floor and inclusive of
columns and projections necessary to the building. Major vertical
penetrations shall mean stairs, elevator shafts, flues, pipe shafts,
vertical ducts and the like, and their enclosing walls, which serve more
than one floor of the building, but shall not include stairs, dumb-
waiters, lifts, and the like, exclusively serving a tenant occupying the
leased premises. This Lease is subject to the terms, covenants and
conditions set forth herein and Tenant and Landlord each covenant as a
material part of the consideration 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 sixty (60) months (the
"Primary Lease Term") commencing at 12:01 a.m. on January 1, 1995, (the
"Commencement Date") and terminating at 12:00 midnight on DECEMBER 31,
2000 (the "Termination Date"), unless sooner terminated pursuant to the
terms hereof. In the event the Premises are not "Ready for Occupancy" as
such term is defined in Paragraph 22 hereof, the Commencement Date shall
mean and refer to the date the Premises are Ready for Occupancy.
Occupancy will occur no later than 120 days after the leases are fully
executed and can occur as soon as all or part of the Premises is
substantially complete.
B. If, as a result of the postponement or acceleration of the
Commencement Date, the term would begin other than on the first day of the
month, Tenant shall pay proportionate rent at the same monthly rate set
forth herein (also in advance) for such partial month and all other terms
and conditions of this Lease shall be in force and effect during such
partial month, and the end of the term hereof shall be adjusted to a date
which is the last day of the month 60 months after the Commencement Date.
Tenant agrees to execute and deliver to Landlord, in form attached hereto
as EXHIBIT C, an Estoppel and Commencement Date Certificate, within ten
(10) days of the date the term commences, certifying as to the actual
commencement and termination dates of the term, the rent commencement
date, if different, and such other matters as may be required by Landlord.
3. RENT: Tenant shall pay to Landlord, rent for the Premises
("Base Rent") as follows:
A. During the 1 through 12 months of the Primary Lease Term,
the sum of $109,282.56 Dollars ($ ONE HUNDRED NINE THOUSAND TWO HUNDRED
EIGHTY TWO AND 56/100) per year, payable in 12 equal monthly installments
of $9,106.88 Dollars ($NINE THOUSAND ONE HUNDRED SIX AND 88/100);
B. During the 13 through 24 months of the Primary Lease Term,
the sum of $113,330.04 Dollars ($ ONE HUNDRED THIRTEEN THOUSAND THREE
HUNDRED THIRTY AND 4/100) per year, payable in 12 equal monthly
installments of $9,444.17 Dollars ($ NINE THOUSAND FOUR HUNDRED FORTY FOUR
AND 17/100);
C. During the 25 through 36 months of the Primary Lease Term,
the sum of $117,377.52 Dollars ($ ONE HUNDRED SEVENTEEN THOUSAND THREE
HUNDRED SEVENTY SEVEN AND 52/100) per year, payable in 12 equal monthly
installments of $9,781.46 Dollars ($ NINE THOUSAND SEVEN HUNDRED EIGHTY
ONE AND 46/100);
D. During the 37 through 48 months of the Primary Lease Term,
the sum of $121,425.00 Dollars ($ ONE HUNDRED TWENTY ONE THOUSAND FOUR
HUNDRED TWENTY FIVE AND NO/100) per year, payable in 12 equal monthly
installments of TEN THOUSAND ONE HUNDRED EIGHTEEN AND 75/100 Dollars
($10,118.75);
E. During the 49 through 60 months of the Primary Lease Term,
the sum of $125,472.48 Dollars ($ ONE HUNDRED TWENTY FIVE THOUSAND FOUR
HUNDRED SEVENTY TWO AND 48/100) per year, payable in 12 equal monthly
installments of $10,456,04 Dollars ($ TEN THOUSAND FOUR HUNDRED FIFTY SIX
AND 4/100);
All installments of Base Rent shall be payable in advance,
on the first (1st) day of each calendar month during the term hereof.
Rent for the first and last months of the term hereof shall be prorated
based upon the number of days during each of said months that the Lease
term was in effect. One monthly installment of Base Rent shall be due and
payable on the date of execution of this Lease by Tenant. All Base Rent
shall be paid without notice, demand, deduction or offset, at the office
of Landlord or to such other person or at such other place as Landlord may
designate in writing. Tenant shall pay to Landlord as "Additional Rent"
all other sums due under this Lease.
4. 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 NINE THOUSAND ONE HUNDRED SIX AND
88/100 Dollars ($9,106.88), 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.
5. RENT ADJUSTMENT:
A. The following terms shall have the following meanings with
respect to the provisions of this Paragraph 5:
(1) "Base Operating Expenses" shall mean an amount equal
to the 1996 BASE YEAR actual Operating Expenses incurred by Landlord, as
hereinafter defined. In the event that the actual Operating Expenses
during any year are less than the Base Operating Expenses, Tenant shall
not be entitled to any refund, credit or other form of reimbursement.
(2) "Building Rentable Area" shall mean all rentable space
available for lease in the Building. If there is a significant change in
the aggregate Building Rentable Area, of a permanent nature, as a result
of an addition to the Building, partial destruction thereof or similar
circumstance, Landlord's accountants shall determine and make an
appropriate adjustment to the provisions herein.
(3) "Tenant's Pro Rata Share" shall mean a fraction, the
numerator of which is the Rentable Area of the Premises (i.e., 8,095
square feet) and the denominator of which is the Building Rentable Area
(i.e., 128,450 square feet), and is equal to 6.302%. At such time, if
ever, any space is added to or subtracted from the Premises pursuant to
the terms of this Lease, Tenant's Pro Rata Share shall be increased or
decreased accordingly.
(4) "Operating Expenses" shall mean:
(a) All operating expenses of any kind or nature
which are necessary, ordinary or customarily incurred with respect to the
operation and maintenance of the Building Complex as determined in
accordance with generally accepted accounting principles and shall
include, but not be limited to:
(i) Costs of supplies, including but not limited
to the cost of "re-lamping" all tenant lighting as the same may be
required from time to time;
(ii) Costs incurred in connection with obtaining
and providing energy for the Building Complex, including but not limited
to costs of propane, butane, natural gas, steam, electricity, solar energy
and fuel oils, coal or any other energy sources as well as costs for
heating, ventilation, and air conditioning services ("HVAC");
(iii) Costs of water and sanitary and storm
drainage services;
(iv) Costs of janitorial, window cleaning and
security services, if any;
(v) Costs of general maintenance and repairs,
including costs under HVAC and other mechanical maintenance contracts; and
repairs and replacements of equipment used in connection with such
maintenance and repair work;
(vi) Costs of maintenance and replacement of
plants and landscaping; and costs of maintenance, repair, striping and
repaving of parking areas, common areas, plazas and other areas used by
tenants of the Building Complex, including trash and snow removal;
(vii) Any fees, costs or assessments imposed by
any property owners association;
(viii) Insurance premiums, including fire and all-
risk coverage, together with loss of rent endorsement; public liability
insurance; and any other insurance carried by Landlord on the Building
Complex or any component parts thereof;
(ix) Labor costs, including wages and other
payments, costs to Landlord of workmen's compensation and disability
insurance, payroll taxes, welfare fringe benefits and all legal fees and
other costs or expenses incurred in resolving any labor disputes;
(x) Professional building management fees;
(xi) Legal, accounting, inspection and other
consultation fees (including, without limitation, fees charged by
consultants retained by Landlord for services that are designed to produce
a reduction in Operating Expenses or reasonably to improve the operation,
maintenance or state of repair of the Building Complex) incurred for the
normal, prudent operation of the Building Complex and a general overhead
and administrative charge equal to two percent (2%) of all Operating
Expenses;
(xii) The costs of capital improvements and
structural repairs and replacements made in or to the Building Complex or
the cost of any machinery or equipment installed in the Building Complex
in order to comply with, in any applicable laws, ordinances, rules,
regulations or orders of any governmental or quasi-governmental authority
having jurisdiction over the Building Complex (herein, "Required Capital
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 for
all other capital improvements and structural repairs and replacements
reasonably necessary to permit Landlord to maintain the Building as a
first class office building. The expenditures for Required Capital
Improvements and Cost Savings Improvements shall be amortized over the
useful life of such capital improvement or structural repair or
replacement (as determined by Landlord's accountants), provided that the
amortized amount of any Cost Savings Improvement shall be limited in any
year to the reduction in Operating Expenses as a result thereof; and
(xiii) "Real Estate Taxes" including all real
property taxes and assessments levied against the Building Complex by any
governmental or quasi-governmental authority, including any taxes,
assessments, surcharges, or service or other fees of a nature not
presently in effect which shall hereafter be levied on the Building
Complex as a result of the use, ownership or operation of the Building
Complex or for any other reason, whether in lieu of or in addition to any
current real estate taxes and assessments; provided, however, that any
taxes which shall be levied on the rentals of the Building Complex shall
be determined as if the Building Complex were Landlord's only property and
provided further, that in no event shall the term "Taxes and Assessments",
as used herein, include any federal, state or local income taxes levied or
assessed on Landlord, unless such taxes are a specific substitute for real
property taxes; such term shall, however, include gross taxes on rentals
and expenses incurred by Landlord for tax consultants and in contesting
the amount or validity of any such Taxes or Assessments (all of the
foregoing are collectively referred to herein as "Taxes"). "Assessments"
shall include any and all so-called special assessments, license tax,
business license fee, business license tax, commercial rental tax, levy,
charge or tax imposed by any authority having the direct power to tax,
including any city, county, state or federal government, or any school,
agricultural, lighting, water, drainage or other improvement or special
district thereof, against the Premises, the Building or the Building
Complex, or against any legal or equitable interest of Landlord therein,
For the purposes of this Lease, any special assessment shall be deemed
payable in such number of installments as is permitted by law, whether or
not actually so paid. If the Building Complex has not been fully assessed
as a completed project, for the purposes of computing the Real Estate
Taxes for any adjustment required herein, the same shall be increased by
Landlord's Accountants, in accordance with their estimate of what the
assessment will be, upon full completion of the Building Complex,
including installation of all tenant finish items.
(xiv) Any other expense which under generally
accepted accounting principles would be considered a normal maintenance or
operating expense.
If Landlord selects an accrual accounting basis
for calculating Operating Expenses, Operating Expenses shall be deemed to
have been paid when such expenses have accrued in accordance with
generally accepted accounting principles. The Landlord will cap all
controllable expenses at seven percent (7%) per annum. The uncontrollable
expenses will include any taxes, insurance, or utility expenses.
(b) Operating Expenses shall expressly exclude
Landlord's income taxes; leasing commissions, advertising and promotional
expenses; interest on debt or amortization payments on any mortgages or
deeds of trust except costs of repairs or other work occasioned by fire,
windstorm or other casualty to the extent of insurance proceeds received;
and any other expense which under generally accepted accounting principles
would not be considered a normal maintenance or operating expense, except
as otherwise specifically provided herein.
(5) It is hereby agreed that commencing JANUARY 1, 1997,
Tenant shall pay to Landlord as Additional Rent during the balance of the
term hereof an estimate of Tenant's Pro Rata Share of Operating Expenses
for the calendar year in excess of the Base Operating Expenses as
reasonably estimated by Landlord, payable monthly, at the rate of one
twelfth (1/12) thereof, on the same date and at the same place Base Rent
is payable, with an adjustment to be made between the parties at a later
date as hereinafter provided. Landlord shall deliver to Tenant, as soon
as practicable following the end of any calendar year, an estimate of the
Operating Expenses for the new calendar year (the "Budget Sheet"). Until
receipt of the Budget Sheet, Tenant shall continue to pay its monthly
Tenant's Pro Rata Share of Operating Expenses based upon the estimate for
the preceding calendar year. To the extent that the Budget Sheet reflects
an estimate of Tenant's Pro Rata Share of Operating Expenses for the new
calendar year greater than the amount actually paid to the date of receipt
of the Budget Sheet for the new calendar year, Tenant shall pay such
amount to Landlord within thirty (30) days of receipt of the Budget Sheet.
Upon receipt of the Budget Sheet, Tenant shall thereafter pay the amount
of its monthly Tenant's Pro Rata Share of Operating Expenses as set forth
in the Budget Sheet. As soon as practicable following the end of any
calendar year, but not later than May 1st, Landlord shall submit to Tenant
a statement in reasonable detail describing the computations of the
Operating Expenses setting forth the exact amount of Tenant's Pro Rata
Share of Operating Expenses for the calendar year just completed (the
"Statement"), and the difference, if any, between the actual Tenant's Pro
Rata Share of Operating Expenses for the calendar year just completed and
the estimated amount of Tenant's Pro Rata Share of Operating Expenses paid
by Tenant to Landlord. Notwithstanding the foregoing, Landlord's failure
to deliver the Statement to Tenant on or before May 1st, shall in no way
serve as a waiver of Landlord's rights under this Paragraph. To the
extent that the actual Tenant's Pro Rata Share of Operating Expenses for
the period covered by the Statement is higher than the estimated Tenant's
Pro Rata Share of Operating Expenses which Tenant previously paid during
the calendar year just completed, Tenant shall also pay to Landlord such
balance within thirty (30) days following receipt of the Statement from
Landlord. To the extent that the actual Tenant's Pro Rata Share of
Operating Expenses for the period covered by the Statement is less than
the estimated Tenant's Pro Rata Share of Operating Expenses which Tenant
previously paid during the calendar year just completed, Landlord shall
credit the excess against any sums then owing or next becoming due from
Tenant under the Lease.
(a) If the Lease term hereunder covers a period of
less than a full calendar year during the first or last calendar years of
the term hereof, Tenant's Pro Rata Share of Operating Expenses for such
partial year shall be calculated by proportionately reducing the Base
Operating Expenses to reflect the number of months in such year during
which Tenant leased the Premises (the "Adjusted Base Operating Expenses").
The Adjusted Base Operating Expenses shall then be compared with the
actual Operating Expenses for said partial year to determine the amount,
if any, of any increases in the actual Operating Expenses for such partial
year over the Adjusted Base Operating Expenses. Tenant shall pay Tenant's
Pro Rata Share of any such increases within ten (10) days following
receipt of notice thereof.
(b) Tenant shall have the right at its own expense
and at a reasonable time (after written notice to Landlord) within thirty
(30) days of the date of the Statement to audit Landlord's books relevant
to the Additional Rent due under this Paragraph 5. In the event Tenant
does not audit Landlord's books and deliver the results thereof to
Landlord within said 30-day period, the terms and amounts set forth in the
Statement shall be deemed conclusive and final and Tenant shall have no
further right to adjustment. In the event Tenant's examination reveals
that an error has been made in Landlord's determination of Tenant's Pro
Rata Share of Operating Expenses and Landlord agrees with such
determination, then the amount of such adjustment shall be payable by
Landlord or Tenant, to the other party as the case may be. In the event
Tenant's examination reveals an error has been made in Landlord's
determination of Tenant's Pro Rata Share of Operating Expenses, and
Landlord disagrees with the results thereof, Landlord shall have thirty
(30) days to obtain an audit from an accountant of its choice to determine
Tenant's Pro Rata Share of Operating Expenses. In the event Landlord's
accountant and Tenant's accountant are unable to reconcile their audits,
both accountants shall mutually agree upon a third accountant, whose
determination of Tenant's Pro Rata Share of Operating Expenses shall be
conclusive. In the event the amount of error by Landlord is determined to
be ten percent (10%) or more, the reasonable costs of the three audits
made pursuant to this subparagraph shall be paid by Landlord. In the
event the amount of error by Landlord is determined to be less than ten
percent (10%), the reasonable costs of the three audits made pursuant to
this subparagraph shall be paid by Tenant.
(c) Landlord's failure during the Lease term to
prepare and deliver any statements or bills, or Landlord's failure to make
a demand under this Paragraph or under any other provision of this Lease
shall not in any way be deemed to be a waiver of, or cause Landlord to
forfeit or surrender its rights to collect any items of Additional Rent
which may have become due pursuant to this Paragraph during the term of
this Lease. Tenant's liability for all Additional Rent due under this
Paragraph 5 shall survive the expiration or earlier termination of this
Lease.
6. CHARACTER OF OCCUPANCY:
A. The Premises are to be used for general offices not
inconsistent with the character and type of tenancy found in comparable
first-class office buildings in the Metropolitan Denver area and for no
other purpose without the prior written consent of Landlord. Tenant
shall, at its sole expense, comply with all laws, rules and regulations
applicable to the Premises and procure all permits or licenses required
for the transaction of business at the Premises.
B. Tenant shall not suffer nor permit the Premises nor any
part thereof to be used in any manner, nor anything to be done therein,
nor suffer or permit anything to be brought into or kept therein, which
would in any material way (i) make void or voidable any fire or liability
insurance policy then in force with respect to the Building Complex, (ii)
make unobtainable from reputable insurance companies authorized to do
business in the state where the Premises are located any fire insurance
with extended coverage, or liability, elevator, boiler or other insurance
required to be furnished by Landlord under the terms of any lease or
mortgage to which this Lease is subordinate at standard rates, (iii) cause
or in Landlord's reasonable opinion be likely to cause physical damage to
the Building Complex or any part thereof, (iv) constitute a public or
private nuisance, (v) impair, in the opinion of Landlord, the appearance,
character or reputation of the Building Complex, (vi) discharge
objectionable fumes, vapors or odors into the Building air conditioning
system or into the Building flues or vents not designed to receive them or
otherwise in such manner as may unreasonably offend other occupants of the
Building, (vii) impair or interfere with 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 Complex, any such impairment or interference to be based upon the
judgment of Landlord, (viii) increase on an ongoing periodic basis the
pedestrian traffic in and out of the Premises or the Building above an
ordinary level, (ix) create waste in, on or around the Premises, Building,
or Building Complex, or (x) make any noise or set up any vibration which
will disturb other tenants, except in the course of permitted repairs or
alterations at times permitted by Landlord.
C. Tenant shall not use the Premises nor permit anything to be
done in or about the Premises or Building Complex which will in any way
conflict with any law, statute, ordinance, protective covenants affecting
the Building Complex or governmental or quasi-governmental rules or
regulations now in force or which may hereafter be enacted or promulgated.
Tenant shall give written notice within two (2) days from receipt thereof
to Landlord of any notice it receives of the violation of any law or
requirement of any public authority with respect to the Premises or the
use or occupation thereof. Landlord shall give prompt notice to Tenant of
any notice it receives relative to the violation by Tenant of any law or
requirement of any public authority with respect to the Premises or the
use or occupation thereof.
7. SERVICES AND UTILITIES:
A. Landlord agrees, without charge except as provided herein,
and in accordance with standards from time to time prevailing for first-
class office buildings in the Metropolitan Denver area, to furnish water
to the Building for use in lavatories and drinking fountains (and to the
Premises if the plans for the Premises so provide); during ordinary
business hours to furnish such heated or cooled air to the Premises as
may, in the judgment of Landlord, be reasonably required for the
comfortable use and occupancy of the Premises provided that Tenant
complies with the recommendations of Landlord's engineer or other duly
authorized representative, regarding occupancy and use of the Premises; to
provide janitorial services for the Premises (including such interior and
exterior window washing as may be required), such janitorial services to
be provided five days a week (Exhibit H), except for "Holidays" as herein
defined; during ordinary business hours to cause electric current to be
supplied for lighting the Premises and public halls; and to furnish such
snow removal services to the Building Complex as may, in the judgment of
Landlord, be reasonably required for safe access to the Building Complex.
B. Landlord shall provide electricity for normal office
purposes including but not limited to fluorescent and incandescent
lighting, including task and task ambient lighting systems and for normal
office equipment including but not limited to duplicating (reproduction)
machines, communications and audio visual equipment, vending machines,
portable computers (provided they do not require any additional voltage or
special electrical requirements) executive kitchen equipment and internal
communication systems (which may include piped-in music). To the extent
that electric current is utilized in excess of the amounts indicated
above, Tenant's rent shall be increased from time to time by Landlord in
such amounts to cover the cost of providing such increased use. Landlord
shall have the right, if it determines based on its own judgment that
Tenant is using electric current for purposes other than those described
above or for other than normal office use, to require Tenant to install a
check meter to determine the amount which Tenant is utilizing. The cost
of such excess usage, and check meter, including but not limited to
monitoring, installation and repair thereof, shall be paid by Tenant.
C. If Tenant requires water in excess of that usually
furnished or supplied for use in the Premises as general office space,
Tenant shall first procure the consent of Landlord for the use thereof.
Tenant agrees to pay to Landlord such amounts as Landlord determines are
necessary to cover the costs of such increased use of water, including,
but not limited to, the cost of installation, monitoring, maintenance and
repair of any check meter or other instrument necessary to measure the use
of additional water.
D. Tenant agrees that Landlord shall not be liable for failure
to supply any heating, air conditioning, elevator, electrical, janitorial,
lighting or other services during any period when Landlord uses reasonable
diligence to supply such services, or during any period Landlord is
required to reduce or curtail such services pursuant to any applicable
laws, rules or regulations, now or hereafter in force or effect, it being
understood and agreed to by Tenant that Landlord may discontinue, reduce
or curtail such services, or any of them at such times as it may be
necessary by reason of accident, unavailability of employees, repairs,
alterations, improvements, strikes, lockouts, riots, acts of God,
application of applicable laws, statutes, rules and regulations, or due to
any other happening beyond the reasonable control of Landlord. In the
event of any such interruption, reduction or discontinuance of Landlord's
services, Landlord shall not be liable for damages to persons or property
as a result thereof, nor shall the occurrence of any such event in any way
be construed as an eviction of Tenant or cause or permit an abatement,
reduction or setoff of rent, or operate to release Tenant from any of
Tenant's obligations hereunder.
E. Whenever heat generating machines or equipment are used by
Tenant in the Premises which affect the temperature otherwise maintained
by the air conditioning system, Landlord reserves the right to install
supplementary air conditioning units in the Premises in the event
Landlord's independent consulting engineer determines same are necessary
as a result of Tenant's use of lights or equipment which generate heat
loads in excess of those for which the HVAC system is designed and the
cost therefor, including the cost of installation, operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord.
F. In the event that Tenant has any special or additional
electrical or mechanical requirements related to its use of the Premises,
any such electrical or mechanical equipment must be located within the
Premises. Such electrical or mechanical requirements, for the purposes
hereof, shall include by way of example, but not limitation, any internal
telephone system. The foregoing shall in no way be construed as granting
to Tenant additional rights to use any such special or additional
electrical or mechanical equipment in its Premises without the prior
written consent of Landlord. Any additional cost or expense related to or
resulting from such electrical or mechanical requirements shall be the
sole obligation of Tenant.
G. If Tenant requires HVAC service beyond ordinary business
hours (hereafter "After Hours Usage"), such service must be requested from
the Building manager at least twenty-four (24) hours prior thereto. After
Hours Usage shall only be supplied in full floor increments of the
Building, for a minimum of four (4) hour periods, with increments of one
half (1/2) hour thereafter. Tenant shall reimburse Landlord, as
Additional Rent, for all costs and expenses for After Hours Usage in
accordance with tile then prevailing operational rate per hour per floor.
Notwithstanding the foregoing, if in Landlord's determination
Tenant's demand for After Hours Usage is or becomes excessive or
sufficiently frequent as to warrant the same, Landlord may install, at
Tenant's expense, separate meters to monitor or control Tenant's After
Hours Usage, with all costs for the installation, maintenance and repair
of such meter to be paid by Tenant.
8. QUIET ENJOYMENT: Subject to the provisions of this Lease,
Landlord covenants that Tenant on paying the rent and performing the
covenants of this Lease on its part to be performed shall and may
peacefully and quietly have, hold and enjoy the Premises for the term of
this Lease. Landlord shall not be responsible for the acts or omissions
of any other tenant or third party which may interfere with Tenant's use
and enjoyment of the Premises. In the event of any transfer or transfers
of Landlord's interest in the Premises or in the real property of which
the Premises are a part, other than a transfer for security purposes only,
the transferor shall be automatically relieved of any and all obligations
and liabilities on the part of Landlord accruing from and after the date
of such transfer.
9. MAINTENANCE AND REPAIRS:
A. Notwithstanding any other provisions of this Lease,
Landlord shall repair and maintain in a first-class condition the
structural portions of the Building, including the elevators, plumbing,
air conditioning, heating and electrical systems installed or furnished by
Landlord, unless such maintenance and repairs are caused in part or in
whole by the act, neglect, fault or omission of Tenant, its agents,
servants, employees, licensees or invitees, in which case Tenant shall pay
to Landlord, on demand, the cost of such maintenance and repairs less the
amount of any insurance proceeds received by Landlord on account thereof,
if applicable. Landlord shall also maintain and keep in good order and
repair the Building roof; the curtain wall, including ALL glass
connections at the perimeter of the Building; all exterior doors,
including any exterior plate glass within the Building; the Building
ventilating systems, elevators; escalators; Building telephone and
electrical closets; public portions of the Building or Building Complex,
including but not limited to the balconies, landscaping, walkways, and
upper floor lobbies and corridors, and interior portions of the Building
above and below grade which are not covered by leases.
B. Tenant, at Tenant's sole cost and expense, except for
services furnished by Landlord pursuant to Paragraph 7 hereof, shall
maintain, in good order, condition and repair, the Premises, including the
interior surfaces of the ceilings (if damaged or discolored due in whole
or in part to the act, neglect, omission or fault of Tenant), walls and
floors, all doors, interior glass partitions or glass surfaces (not
exterior windows) and pipes, electrical wiring, switches, fixtures and
other special items, subject to the provisions of Paragraph 15 hereof. In
the event Tenant fails to so maintain the Premises in good order,
condition and repair, Landlord shall give Tenant notice to do such acts as
are reasonably required to maintain the Premises. In the event Tenant
fails to promptly commence such work and diligently pursue it to
completion, then Landlord shall have the right, but shall not be required,
to do such acts and expend such funds at the expense of Tenant as are
reasonably required to perform such work. The funds so expended plus
twenty percent (20%) of such amounts as an overhead/administrative charge
shall be due and payable by Tenant within ten (10) days after receipt of
Landlord's invoice therefor. Landlord shall have no liability to Tenant
for any damage, inconvenience or interference with the use of the Premises
by Tenant as a result of performing any such work.
10. ALTERATIONS AND ADDITIONS:
A. Tenant shall make no alterations, additions or improvements
to the Premises or any part thereof without obtaining the prior written
consent of Landlord. Tenant shall submit any such request to Landlord at
least thirty (30) days prior to the proposed commencement date of such
work. Landlord may impose, as a condition to such consent, and at
Tenant's sole cost, such requirements as Landlord may deem necessary in
its judgment, including without limitation, the manner in which the work
is done, a right of approval of the contractor by whom the work is to be
performed and the times during which the work is to be accomplished,
approval of all plans and specifications and the procurement of all
licenses and permits. Landlord shall be entitled to post notices on and
about the Premises with respect to Landlord's non-liability for mechanics'
liens and Tenant shall not permit such notices to be defaced or removed,
Tenant further agrees not to connect any apparatus, machinery or device to
the Building systems, including electric wires, water pipes, fire safety,
heating and mechanical systems, without the prior written consent of
Landlord.
B. All alterations, improvements and additions to the
Premises, including, by way of illustration but not by limitation, all
counters, screens, grilles, special cabinetry work, partitions, paneling,
carpeting, drapes or other window coverings and light fixtures, shall be
deemed a part of the real estate and the property of Landlord excluding
the swipe card security system, the safe and the remote surveillance
systems, to be paid for by Tenant and not included in the Tenant
Improvement Allowance 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 term, shall elect to have Tenant remove all or any of
such alterations, improvements or additions (excluding non-movable office
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. Any such removal, whether
required or permitted by Landlord, shall be at Tenant's sole cost and
expense, and Tenant shall 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,
and can be removed without structural damage to or defacement of the
Building or the Premises, and all furniture, furnishings and other
articles of personal property owned by Tenant and located in the Promises
(all of which are herein called "Tenant's Property") shall be and remain
the property of Tenant and may be removed by it at any time during the
term of this Lease. However, if any of Tenant's Property is removed,
Tenant shall repair or pay the cost of repairing any damage to the
Building or the Premises resulting from such removal. All additions or
improvements which are to be surrendered with the Premises shall be
surrendered with the Premises, as a part thereof, at the end of the term
or the earlier termination of this Lease.
C. If Landlord permits persons requested by Tenant to perform
any alterations, repairs, modifications or additions, which shall not be
unreasonably withheld, to the Premises, then prior to the commencement of
any such work, Tenant shall deliver to Landlord certificates issued by
insurance companies qualified to do business in the state where the
Premises are located evidencing that workmen's compensation, public
liability insurance and property damage insurance, all in amounts, with
companies and on forms satisfactory to Landlord, are in force and
maintained by all such contractors and subcontractors engaged by Tenant to
perform such work, All such policies shall name Landlord as an additional
insured and shall provide that the same may not be canceled or modified
without thirty (30) days prior written notice to Landlord.
D. Tenant, at its sole cost and expense, shall cause any
permitted alterations, decorations, installations, additions or
improvements in or about the Premises to be performed in compliance with
all applicable requirements of insurance bodies having jurisdiction, and
in such manner as not to interfere with, delay, or impose any additional
expense upon Landlord in the construction, maintenance or operation of the
Building, and so as to maintain harmonious labor relations in the
Building.
11. ENTRY BY LANDLORD:
A. Landlord and its agents shall have the right to enter the
Premises at all reasonable times and upon reasonable notice for the
purpose of examining or inspecting the same, to supply any services to be
provided by Landlord hereunder, to show the same to prospective purchasers
of the Building, to make such alterations, repairs, improvements or
additions to the Premises or to the Building as Landlord may deem
necessary or desirable, and to show the same to prospective tenants of the
Premises. Landlord and its agent may enter the Premises at all times and
without advance notice for the purpose of responding to an actual or
apparent emergency. Landlord may for the purpose of supplying scheduled
janitorial services and evaluating janitorial services at any time and
from time to time enter the Premises by means of a master key without
liability to Tenant and without affecting this Lease. If, during the last
60 days of the term hereof, Tenant shall have removed substantially all of
its property from the Premises, Landlord may immediately enter and alter,
renovate and redecorate the Premises without elimination or abatement of
rent or incurring liability to Tenant for any compensation.
B. Tenant shall be entitled to four (4) sets of keys to the
Premises. In the event Tenant needs any additional keys, such keys must
be requested from Landlord. Tenant shall pay to Landlord the actual cost
of making such additional keys.
12. MECHANIC'S LIENS: Tenant shall pay or cause to be paid all
costs for work done by or on behalf of Tenant or caused to be done by or
on behalf of Tenant on the Premises of a character which will or may
result in liens against Landlord's interest in the Premises, Building or
Building Complex and Tenant will keep the Premises, Building and Building
Complex free and clear of all mechanic's liens and other liens on account
of work done for or on behalf of Tenant or persons claiming under Tenant.
Tenant hereby agrees to indemnify, defend and save Landlord harmless of
and from all liability, loss, damages, costs or expenses, including
attorneys' fees, incurred in connection with any claims of any nature
whatsoever for work performed for, or materials or supplies furnished to
Tenant, including lien claims of laborers, materialmen or others. Should
any such liens be filed or recorded against the Premises, Building or
Building Complex with respect to work done for or materials supplied to or
on behalf of Tenant or should any action affecting the title thereto be
commenced, Tenant shall cause such liens to be released of record within
ten (10) days after notice thereof. If Tenant desires to contest any such
claim of lien, Tenant shall nonetheless cause such lien to be released of
record by the posting of adequate security with a court of competent
jurisdiction if provided by applicable law or statute of the state where
the Premises are located. If Tenant shall be in default in paying any
charge for which such a mechanic's lien or suit to foreclose such a lien
has been recorded or filed and shall not have caused the lien to be
released as aforesaid, Landlord may (but without being required to do so)
pay such lien or claim and any costs associated therewith, and the amount
so paid, together with interest at the Interest Rate and reasonable
attorneys' fees incurred in connection therewith, shall be immediately due
and payable from Tenant to Landlord as Additional Rent.
13. DAMAGE TO PROPERTY, INJURY TO PERSONS:
A. Tenant, for itself and its legal representatives,
successors and assigns, hereby indemnities and agrees to hold harmless
Landlord, its agents, employees, contractors, legal representatives,
successors and assigns, from any and all claims of liability for any
injury or damage to any person or property whatsoever occurring in, on or
about the Premises or the Building Complex or any part thereof, to the
extent such injury or damage is caused by the negligence, fault or
omission of Tenant, its agents, contractors, employees, licensees or
invitees. Tenant further agrees to indemnify and to hold Landlord
harmless from and against any and all claims arising from any breach or
default in the performance of any obligation on Tenant's part to be
performed under the terms of this Lease, or arising from any act or
negligence of Tenant, or any of its agents, contractors, employees,
licensees or invitees. Such indemnities shall include by way of example,
but not limitation, all costs, reasonable attorneys' fees, expenses and
liabilities incurred in or about any such claim, action or proceeding.
B. Landlord shall not be liable to Tenant for any damage by or
from any act or negligence of any co-tenant or other occupant of the
Building Complex, or by any owner or occupant of adjoining or contiguous
property. Landlord shall not be liable for any injury or damage to
persons or property resulting in whole or in part from the criminal
activities of others. To the extent not covered by normal fire and
extended coverage insurance, Tenant agrees to pay for all damage to the
Building Complex, as well as all damage to persons or property of other
tenants or occupants thereof, caused by the misuse, neglect, act, omission
or negligence of Tenant or any of its agents, contractors, employees,
licensees or invitees.
C. Neither Landlord nor its agents or employees shall be
liable for any damage to property entrusted to Landlord, its agents or
employees, or employees of the building manager, if any, nor for the loss
or damage to any 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 Complex or from the pipes, appliances or
plumbing works therein or from the roof, street or subsurface or from any
other place or resulting from dampness, or any other cause whatsoever;
provided, however, nothing contained herein shall be construed to relieve
Landlord from liability for any personal injury resulting from its gross
negligence. Neither Landlord nor its agents or employees shall be liable
for interference with the lights, view or other incorporeal hereditaments,
nor shall Landlord be liable for any latent defect in the Premises or in
the Building or Building Complex.
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. Landlord agrees to carry and maintain general public
liability insurance against claims for personal injury, including death
and property damage in or about the Building Complex (excluding Tenant's
Property), such insurance to be in such amounts as Landlord (or its
mortgagees) may deem appropriate. Such insurance may expressly exclude
property paid for by tenants or paid for by Landlord for which tenants
have reimbursed Landlord located in, or constituting a part of the
Building or the Building Complex. Such insurance shall afford coverage
for damages resulting from (a) fire, (b) perils covered by extended
coverage insurance, and (c) explosion of steam and pressure boilers and
similar apparatus located in the Building or the Building Complex.
Landlord may carry such other additional insurance coverage as Landlord or
Landlord's mortgagee deems appropriate including coverage for loss of
rents. All such insurance shall be procured from a responsible insurance
company or companies authorized to do business in the State where the
Premises are located.
B. Tenant shall, at its own cost, at all times during the term
of this Lease and any extensions hereof, procure and maintain insurance
for hazard, fire and extended coverage on Tenant's Property and the
contents of the Premises in an amount equal to full replacement cost
thereof, and comprehensive 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: Two Million Dollars ($2,000,000.00) aggregate for bodily injury
and property damage for products and completed operations. All such
insurance shall be procured from a responsible insurance company or
companies authorized to do business in the State where the Premises are
located, with general policyholder's ratings of not less than "A" and a
financial rating of not less than "XI" in the most current available
Best's Insurance Reports, and shall be otherwise satisfactory to Landlord.
All such policies shall name Landlord as an additional insured, and shall
provide that the same may not be canceled or altered except upon thirty
(30) days prior written notice to Landlord. All insurance maintained by
Tenant shall be primary to any insurance provided by Landlord. If Tenant
obtains any general liability insurance policy on a claims-made basis,
Tenant shall provide continuous liability coverage for claims arising
during the entire term of this Lease, regardless of when such claims are
made, either by obtaining an endorsement providing for an unlimited
extended reporting period in the event such policy is canceled or not
renewed for any reason whatsoever or by obtaining new coverage with a
retroactive date the same as or earlier than the expiration date of the
canceled or expired policy. Tenant shall provide certificate(s) of such
insurance to Landlord upon commencement of the Lease term and at least
thirty (30) days prior to any annual renewal date thereof and upon request
from time to time and such certificate(s) shall disclose that such
insurance names Landlord as an additional insured, in addition to the
other requirements set forth herein. The limits of such insurance shall
not, under any circumstances, limit the liability of Tenant hereunder.
C. Each party agrees to use its best efforts to include in
each of its policies insuring against loss, damage or destruction by fire
or other casualty a waiver of the insurer's right of subrogation against
the other party, or if such waiver should be unobtainable or unenforceable
(i) an express agreement that such policy shall not be invalidated if the
insured waives the right of recovery against any party responsible for a
casualty covered by the policy before the casualty; or (ii) any other form
of permission for the release of the other party. If such waiver,
agreement or permission shall not be, or shall cease to be, obtainable
without additional charge or at all, the insured party shall so notify the
other party promptly after learning thereof. In such case, if the other
party shall so elect and shall pay the insurer's additional charge
therefor, such waiver, agreement or permission shall be included in the
policy, or the other party shall be named as an additional insured in the
policy. Each such policy which shall so name a party hereto as an
additional insured shall contain, if obtainable, agreements by the insurer
that the policy will not be canceled without at least thirty (30) days
prior notice to both insureds and that the act or omission of one insured
will not invalidate the policy as to the other insured. Any failure by
either party, if named as an additional insured, promptly to endorse to
the order of the other party, without recourse, any instrument for the
payment of money under or with respect to the policy of which the other
party is the owner or original or primary insured, shall be deemed a
default under this Lease.
D. Each party hereby releases the other party with respect to
any claim (including a claim for negligence) which it might otherwise have
against the other party for loss, damage or destruction with respect to
its property (including the Building, Building Complex, the Premises and
rental value or business interruption) occurring during the term of this
Lease to the extent to which it is insured under a policy or policies
containing a waiver of subrogation or permission to release liability or
naming the above party as an additional insured as provided above.
E. 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
indemnity 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 such insurance proceeds available
therefor, provided such repairs and restoration can, in Landlord's
reasonable opinion, be made within two hundred ten (210) days after the
occurrence of such damage without the payment of overtime or other
premiums, and until such repairs and restoration are completed, the Base
Rent shall be abated in proportion to the part of the Premises which is
unusable by Tenant in the conduct of its business, 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 forty-five (45)
days after such casualty if it estimates that it will be unable to repair
and restore the Premises within said two hundred ten (210) day period.
Such notice shall set forth the approximate length of time Landlord
estimates will be required to complete such repairs and restoration.
Notwithstanding anything to the contrary contained herein, if Landlord
cannot or estimates it cannot make such repairs and restoration within
said two hundred ten (210) day period, then Tenant may, by written notice
to Landlord cancel this Lease, provided such notice is given to Landlord
within fifteen (15) days after Landlord notifies Tenant of the estimated
time for completion of such repairs and restoration. Notwithstanding the
preceding sentence, Tenant may not cancel this Lease as hereinabove stated
if the damage to the Premises or the Building is in whole or in part the
result of the act, omission, fault or negligence of Tenant, its agents,
contractors, employees, licensees or invitees. Except as provided in this
Paragraph 15, there shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's business
or property arising from the making of any such repairs, alterations or
improvements in or to the Building, Premises or fixtures, appurtenances
and equipment. Tenant understands that Landlord will not carry insurance
of any kind on Tenant's Property, including furniture and furnishings, or
on any fixtures or equipment removable by Tenant under the provisions of
this Lease, or any improvement installed in the Premises by or on behalf
of Tenant, and that Landlord shall not be obligated to repair any damage
thereto or replace the same.
B. In case the Building throughout shall be so injured or
damaged, whether by fire or otherwise (though the Premises may not be
affected, or if affected, can be repaired within said 210 days) that
Landlord, within sixty (60) days after the happening of such injury, shall
decide not to reconstruct or rebuild the Building, then notwithstanding
anything contained herein to the contrary, upon notice in writing to that
effect given by Landlord to Tenant within said sixty (60) days, Tenant
shall pay the rent, properly apportioned up to date of such casualty, this
Lease shall terminate from the date of delivery of said written notice,
and both parties hereto shall be released and discharged from all further
obligations hereunder (except those obligations which expressly survive
termination of the Lease term). A total destruction of the Building shall
automatically terminate this Lease.
16. CONDEMNATION:
A. If the whole of the Premises or so much thereof as to
render the balance unusable by Tenant for the proper conduct of its
business shall be taken under power of eminent domain or transferred under
threat thereof, then this Lease, at the option of either Landlord or
Tenant exercised by either party giving notice to the other of such
election within thirty (30) days after such conveyance or taking
possession, whichever is earlier, shall forthwith cease and terminate and
the rent shall be duly apportioned as of the date of such taking or
conveyance. No award for any partial or entire taking shall be
apportioned and Tenant hereby assigns to Landlord any award which may be
made in such taking or condemnation, together with any and all rights of
Tenant now or hereafter arising in or to the same or any part thereof.
Notwithstanding the foregoing, Tenant shall be entitled to seek, directly
from the condemning authority, an award for its removable trade fixtures,
equipment and personal property and relocation expenses, if any, 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 hereby assigns to Landlord any award which may be made in such
temporary taking, together with any and all rights of Tenant now or
hereafter arising in or to the same or any part thereof. Tenant shall be
entitled to receive an abatement of Base Rent in proportion to the
reduction in the size of the Premises so taken.
17. ASSIGNMENT AND SUBLETTING:
A. Tenant shall not permit any part of the Premises to be used
or occupied by any persons other than Tenant and its employees, nor shall
Tenant permit any part of the Premises to 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. Tenant shall not
voluntarily, by operation of law, or otherwise, assign, transfer or
encumber this Lease or any interest herein nor sublet or part with
possession of all or any part of the Premises (any and all of which shall
hereinafter be referred to as "Transfer") without Landlord's prior written
consent. That consent will not be unreasonably withheld. Any Transfer
without the prior written consent of Landlord shall constitute a default
hereunder and shall be void ab initio and shall confer no rights upon any
third party, notwithstanding Landlord's acceptance of rent payments from
any purported transferee. Landlord's consent to any requested assignment
of this Lease or subletting of all or any part of the Premises shall be
subject to the following conditions:
(1) such consent and resulting subletting or assignment
shall not relieve Tenant of its primary obligations hereunder, including
the obligation for payment of all rents due hereunder;
(2) Landlord, at its option and from time to time, may
collect the rent from the subtenant or assignee, and apply the net amount
collected to the rent herein reserved, but no such collection shall be
deemed an acceptance by Landlord of the subtenant or assignee as the
tenant hereof, or a release of Tenant from further performance of
covenants on the part of Tenant herein contained;
(3) any such subtenant or assignee shall be a company or
other entity of good repute, engaged in a business or profession
compatible with and in keeping with the then standards of the Building and
financially capable of performing its obligations with respect to the
Premises:
(4) such subtenant or assignee shall assume and agree to
perform all of Tenant's obligations under this Lease insofar as they
pertain to the space so sublet or assigned; and
(5) Tenant is not in default of any term or condition of
this Lease at the time it requests Landlord's consent.
B. In the event of any Transfer of this Lease or all or any
part of the Premises by Tenant, Landlord in addition to any rights
contained herein, shall have the option, at its discretion, to collect and
receive the excess of rent due to Tenant from such sublessee or assignee
over the Base Rent due hereunder. Further, in the event of any Transfer
of this Lease of all or any part of the Premises by Tenant without the
prior written consent of Landlord, Landlord, in addition to any rights
contained herein shall have the following options, at its discretion:
(1) To give Tenant written notice of Landlord's
intention to terminate this Lease on the date such notice is given or on
any later date specified therein, whereupon, on the date specified in such
notice, Tenant's right to possession of the Premises shall cease and this
Lease shall thereupon be terminated, except as to any incompleted
obligations of Tenant; or
(2) To re-enter and take possession of the Premises
or the part thereof subject to such Transfer, and to enforce all rights of
Tenant, and receive and collect all rents and other payments due to
Tenant, in accordance with such sublet or assignment of the Premises, or
any part thereof, as if Landlord was the sublettor or assignor, and to do
whatever Tenant is permitted to do pursuant to the terms of such sublease
or assignment.
C. The sale of all or a majority of the stock of Tenant, if
Tenant is a corporation, or the sale of all or a majority of the ownership
interest in Tenant, if Tenant is a partnership, or the sale of all or
substantially all of the assets of Tenant shall constitute a Transfer for
purposes of this Lease. Landlord recognizes that Executive Telecard is a
publicly traded company on the NASDAQ Exchange. As long as Executive
Telecard continues the public trading of such stock it will not constitute
a transfer as defined herein.
D. At the time of making a request for Landlord's consent to a
Transfer and not less than thirty (30) days prior to the proposed
effective date thereof, Tenant shall provide to Landlord such information
as Landlord, its accountants and attorneys, shall reasonably require with
respect to such proposed Transfer, including but not limited to name and
address of the proposed transferee, description of business operations,
financial information and certificate of corporate authority and good
standing or partnership certificate, as applicable.
E. Consent of Landlord to a Transfer shall not relieve Tenant
from seeking consent to any subsequent Transfers.
F. Subletting or assignments by subtenants or assignees shall
not be permitted under any circumstances, nor shall Tenant be permitted to
assign this Lease or sublet all or any part of the Premises during any
period of time that all or any portion of the Base Rent is abated.
Further, no option to renew or extend the term of this Lease or to lease
additional space, if any, shall be exercisable by any subtenant or
assignor.
G. All subleases or assignments shall be in writing and a copy
thereof provided to Landlord within ten (10) days of its effective date.
All subleases shall further contain an express provision that in the event
of any default by Tenant under this Lease and upon notice thereof to the
subtenant from Landlord, all rentals payable by the subtenant shall be
paid directly to Landlord, for the Tenant's account, until subsequent
notice from Landlord that such default has been cured. Notwithstanding
the foregoing, receipt by Landlord of rent directly from the subtenant
shall not be considered a waiver of the default on the part of Tenant, nor
an acceptance of such subtenant.
18. ESTOPPEL CERTIFICATE: Tenant further agrees at any time and
from time to time on or before five (5) days after written request by
Landlord, to execute, acknowledge and deliver to Landlord an estoppel
certificate certifying (to the extent it believes the same to be true)
that this Lease is unmodified and in full force and effect (or if there
have been modifications, that the same is in full force and effect as
modified, and stating the modifications), that there have been no defaults
thereunder by Landlord or Tenant (or if there have been defaults, setting
forth the nature thereof), the date to which the rent and other charges
have been paid, if any, that Tenant claims no present charge, lien, claim
or offset against rent, the rent is not prepaid for more than one month in
advance and such other matters as may be reasonably required by Landlord,
Landlord's mortgagee, or any potential purchaser of the Building, it being
intended that any such statement delivered pursuant to this Paragraph may
be relied upon by any prospective purchaser of all or any portion of
Landlord's interest herein, or a holder of any mortgage or deed of trust
encumbering any portion of the Building Complex. Tenant's failure to
deliver such statement within such time shall be a default under this
Lease.
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 press 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 fifteen (15) days after the
levy thereof;
(4) Tenant shall file a petition in bankruptcy or
insolvency or for reorganization or arrangement under the bankruptcy laws
of the United States or under any insolvency act of any state, or shall
voluntarily take advantage of any such law or act by answer or otherwise,
or shall be dissolved or shall make an assignment for the benefit of
creditors;
(5) Involuntary proceedings under any such bankruptcy law
or insolvency act or for the dissolution of Tenant shall be instituted
against Tenant, or a receiver or trustee shall be appointed of all or
substantially all of the property of Tenant, and such proceedings shall
not be dismissed or such receivership or trusteeship vacated within thirty
(30) days after such institution or appointment;
(6) Tenant shall fail to take possession of the Premises
within thirty (30) days of the Commencement Date;
(7) Tenant shall abandon or permanently vacate the
Premises for ten (10) consecutive days;
(8) Tenant shall fail to perform any of the other
agreements, terms, covenants or conditions hereof on Tenant's part to be
performed (other than the obligation to pay rent or any other charges
payable hereunder), and such nonperformance shall continue for a period of
fifteen (15) days after notice thereof by Landlord to Tenant; provided,
however, that if Tenant cannot reasonably cure such nonperformance within
fifteen (15) days, Tenant shall not be in default if it commences cure
within said fifteen (15) days and diligently pursues the same to
completion, with completion occurring in all instances within sixty (60)
days;
(9) Tenant shall, for reasons other than those
specifically permitted in this Lease, cease to conduct continually its
normal business operations in the Premises, or fail to, from the
Commencement Date throughout the term of this Lease and any renewals
hereof, do any of the following: (i) keep the phone lines in the Premises
hooked up with adequate personnel to operate the same; or (ii) operate its
normal business activities as an active and ongoing entity consistent with
generally accepted standards in the industry;
(10) Tenant shall fail to obtain a release of any
mechanic's lien, as required herein;
(11) 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
fifteen (15) days; and
(12) 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. Upon the occurrence of an event of default, Landlord shall
have the right, at its election, then or at any time thereafter and while
any such event of default shall continue, either:
(1) To give Tenant written notice of Landlord's intention
to terminate this Lease on the date such notice is given or on any later
date specified therein, where-upon, on the date specified in such notice,
Tenant's right to possession of the Premises shall cease and this Lease
shall thereupon be terminated; provided however, all of Tenant's
obligations, including but not limited to, the amount of Base Rent and
other obligations reserved in this Lease for the balance of the term
hereof, shall immediately be accelerated and due and payable.
(2) To re-enter and take possession of the Premises or any
part thereof and repossess the same as Landlord's former estate and expel
Tenant and those claiming through or under Tenant, and remove the effects
of both or either, using such force for such purposes as may be reasonably
necessary, without being liable for prosecution thereof, without being
deemed guilty of any manner of trespass and without prejudice to any
remedies for arrears of rent or preceding breach of covenants or
conditions. Should Landlord elect to re-enter the Premises as provided in
this Paragraph 19(b)(2) or should Landlord take possession pursuant to
legal proceedings or pursuant to any notice provided for by law, Landlord
may, from time to time, without terminating this Lease, relet the Premises
or any part thereof in Landlord's or Tenant's name, but for the 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 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 re-entry or taking possession of the Premises by Landlord shall be
construed as an election on Landlord's part to terminate this Lease unless
a written notice of such intention be given to Tenant. No notice from
Landlord hereunder or under a forcible entry and detainer statute or
similar law shall constitute an election by Landlord to terminate this
Lease unless such notice specifically so states. Landlord reserves the
right following any such re-entry and/or reletting, to exercise its right
to terminate this Lease by giving Tenant such written notice, in which
event, this Lease will terminate as specified in said notice.
C. In the event that Landlord does not elect to terminate this
Lease as permitted in Paragraph 19(b)(1) hereof, but on the contrary,
elects to take possession as provided in Paragraph 19(b)(2), Tenant shall
pay to Landlord (i) the rent and other sums as herein provided, which
would be payable hereunder if such repossession had not occurred, less
(ii) the net proceeds, if any, of any reletting of the Premises after
deducting all Landlord's expenses in connection with such reletting,
including but without limitation, all repossession costs, brokerage
commissions, legal expenses, attorneys' fees, expenses of employees,
alteration and repair costs and expenses of preparation for such
reletting. If, in connection with any reletting, the new lease term
extends beyond the existing term, or the premises covered thereby include
other premises not part of the Premises, a fair apportionment of the rent
received from such reletting and the expenses incurred in connection
therewith as provided aforesaid will be made in determining the net
proceeds from such reletting. Tenant shall pay such rent and other sums
to Landlord monthly on the days on which the rent would have been payable
hereunder if possession had not been retaken.
D. In the event this Lease is terminated, Landlord shall be
entitled to recover forthwith against Tenant as damages for loss of the
bargain and not as a penalty, an aggregate sum which, at the time of such
termination of this Lease, represents the excess, if any, of the aggregate
of the rent and all other sums payable by Tenant hereunder that would have
accrued for the balance of the term over the aggregate rental value of the
Premises (such rental value to be computed on the basis of a tenant paying
not only a rent to Landlord for the use and occupation of the Premises,
but also such other charges as are required to be paid by Tenant under the
terms of this Lease) for the balance of such term, both discounted to
present worth at the rate of eight percent (8%) per annum. Alternatively,
at Landlord's option, Tenant shall remain liable to Landlord for damages
in an amount equal to the rent and other sums arising under the Lease for
the balance of the term had the Lease not been terminated, less the net
proceeds, if any, from any subsequent reletting, after deducting all
expenses associated therewith and as enumerated above. Landlord shall be
entitled to receipt of such amounts from Tenant monthly on the days on
which such sums would have otherwise been payable.
E. Suit or suits for the recovery of the amounts and damages
set forth above may be brought by Landlord, from time to time, at
Landlord's election and nothing herein shall be deemed to require Landlord
to await the date 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.
F. After an event of default by Tenant, Landlord may sue for
or otherwise collect all rents, issues and profits payable under all
subleases on the Premises, including those past due and unpaid.
G. After an event of default by Tenant, Landlord may without
terminating this Lease, enter upon the Premises, with force if necessary,
without being liable for prosecution of any claim for damages, without
being deemed guilty of any manner of trespass and without prejudice to any
other remedies, and do whatever Tenant is obligated to do under the terms
of this Lease. Tenant agrees to reimburse Landlord on demand for any
expenses which Landlord may incur in effecting compliance with the
Tenant's obligations under this Lease; further, Tenant agrees that
Landlord shall not be liable for any damages resulting to Tenant from
effecting compliance with Tenant's obligations under this subparagraph
caused by the negligence of Landlord or otherwise.
H. No failure by Landlord to insist upon the strict performance of
any agreement, term, covenant or condition thereof or to exercise any
right or remedy consequent upon a breach hereof, and no acceptance of full
or partial rent during the continuance of any such breach, shall
constitute a waiver of any such breach of such agreement, term, covenant
or condition. No agreement, term, covenant or condition hereof to be
performed or complied with by Tenant, and no breach thereof, shall be
waived, altered or modified except by written instrument executed by
Landlord. No waiver of any breach shall affect or alter this Lease, but
each and every agreement, term, covenant and condition hereof shall
continue in full force and effect with respect to any other then existing
or subsequent breach thereof. Notwithstanding any unilateral termination
of this Lease, this Lease shall continue in force and effect as to any
provisions hereof which require observance or performance of Landlord or
Tenant subsequent to termination.
I. Nothing contained in this Paragraph shall limit or
prejudice the right of Landlord to prove and obtain as liquidated damages
in any bankruptcy, insolvency, receivership, reorganization or dissolution
proceeding, an amount equal to the maximum allowed by any statute or rule
of law governing such proceeding and in effect at the time when such
damages are to be proved, whether or not such amount be greater, equal to
or less than the amounts recoverable, either as damages or rent, referred
to in any of the preceding provisions of this Paragraph.
J. Any rents or other amounts owing to Landlord hereunder
which are not paid within five (5) days of the date they are due, shall
thereafter bear interest from the due date at the rate of eighteen percent
(18%) per annum ("Interest Rate") until paid. Similarly, any amounts paid
by Landlord to cure any default of Tenant or to perform any obligation of
Tenant, shall, if not repaid by the Tenant within five (5) days of demand
by Landlord, thereafter bear interest from the date paid by Landlord at
the Interest Rate until paid. In addition to the foregoing, Tenant shall
pay to Landlord whenever any Base Rent, Additional Rent or any other sums
due hereunder remain unpaid more than five (5) days after the due date
thereof, an administrative charge to compensate Landlord for the costs and
expenses associated with handling a delinquent account equal to ten
percent (10%) of the amount due. Further, in the event of default by
Tenant, in addition to all other rights and remedies, Landlord shall be
entitled to receive from Tenant all sums, the payment of which may
previously have been waived or abated by Landlord, or which may have been
paid by Landlord pursuant to any agreement to grant Tenant a rental
abatement or other monetary inducement or concession, including but not
limited to any tenant finish allowance or moving allowance, together with
interest thereon from the date or dates such amounts were paid by Landlord
or would have been due from Tenant but for the abatement, at the Interest
Rate, until paid; it being understood and agreed that such concession or
abatement was made on the condition and basis that Tenant fully perform
all obligations and covenants under the Lease for the entire term.
K. Each right and remedy provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy
provided for in this Lease now or hereafter existing at law or in equity
or by statute or otherwise, including, but not limited to, suits for
injunctive or declaratory relief and specific performance. The exercise
or commencement of the exercise by Landlord of any one or more of the
rights or remedies provided for in this Lease now or hereafter existing at
law or in equity or by statute or otherwise shall not preclude the
simultaneous or subsequent exercise by Landlord of any or all other rights
or remedies provided for in this Lease, or now or hereafter existing at
law or in equity or by statute or otherwise. All costs incurred by
Landlord in connection with collecting any amounts and damages owing by
Tenant pursuant to the provisions of this Lease or to enforce any
provision of this Lease, including by way of example, but not limitation,
reasonable attorneys' fees from the date any such matter is turned over to
an attorney, shall also be recoverable by Landlord from Tenant. Landlord
and Tenant agree that any action or proceeding arising out of this Lease
shall be heard by a court sitting without a jury and thus hereby waive all
rights to a trial by jury.
20. LANDLORD'S LIEN: As security for the payment of rent, damages
and all other payments required to be made under this Lease, Tenant hereby
grants to Landlord a lien upon all property INCLUDED IN EXHIBIT I, of
Tenant now or hereafter located upon the Premises. If Tenant abandons or
vacates any portion of the Premises or is in default in the payment of any
rentals, damages or other payments required to be made by this Lease or is
in default of any other provision of this Lease, Landlord may enter upon
the Premises, without being liable for any claim of damages, without being
deemed guilty of any manner of trespass, and without prejudice to any
other remedy which it may have for possession or arrearages in rent and
take possession of all or any part of such personal property, and may sell
and convey all or any part of such personal property at a public or
private sale, in one or successive sales, with or without notice, to the
highest bidder for cash and on behalf of Tenant, delivering to the highest
bidder all of Tenant's title and interest in the personal property so
sold. The proceeds of such sale of the personal property shall be applied
by Landlord toward the reasonable costs and expenses of the sale,
including attorneys' fees, and then toward the payment of all sums then
due by Tenant to Landlord under the terms of this Lease; any excess
proceeds shall be paid to Tenant or any other person entitled thereto by
law. The above not to include Exhibit "I".
21. INTENTIONALLY DELETED.
22. COMPLETION OF PREMISES:
A. Landlord has agreed to complete the Premises as more fully
set forth in a work letter (the "Work Letter") attached hereto and
incorporated herein as EXHIBIT D. Other than as set forth in the Work
Letter, Landlord shall have no obligation for the completion of the
Premises, and Tenant shall accept the Premises in its "as is" condition on
the Commencement Date. Landlord shall not have any obligation for the
repair or replacement of any portions of the interior of the Premises,
including but not limited to carpeting, draperies, window coverings,
wallcoverings or painting, which are damaged or wear out during the term
hereof, regardless of the cause therefor, except as may otherwise be
specifically set forth in this Lease. If the Premises are not
Substantially Complete (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
Substantially Complete, whereupon, this Lease and all covenants,
conditions and terms hereof shall be in full force and effect; and the
Termination Date hereof shall be postponed as set forth in paragraph 2(b).
The postponement of the rent and term herein provided for such period
shall be in full settlement for all claims which Tenant might have by
reason of the Premises not being Substantially Complete on the
Commencement Date. If Tenant wishes to take possession of all or any part
of the Premises prior to the date the Premises are Substantially Complete,
it must first secure the prior written consent of Landlord and such
occupancy shall in no way hinder, delay or interfere with Landlord's work
in completion of the Premises, and in such event, all terms and provisions
of this Lease, including the obligation to pay rent at a rate equal to the
monthly rate provided in Paragraph 3 (prorated accordingly) shall apply.
"Substantially Complete" as that term is used herein shall mean the date
when all major construction aspects of the Premises and any remodeling
work to be performed by Landlord to the extent agreed to in the Work
Letter are completed although minor items are not completed (including but
not limited to, touch-up plastering or repainting which does not
unreasonably interfere with Tenant's ability to carry on its business in
the Premises). The certificate of the architect (or other representative
of Landlord) in charge of supervising the completion or remodeling of the
Premises shall control conclusively the date upon which the Premises are
Substantially Complete. If Landlord is delayed in delivering the Premises
to Tenant because the same are not Substantially Complete or due to the
failure of a prior occupant to vacate the same, then the rent and term
shall be postponed as hereinabove set forth, and such postponement shall
be in full settlement of all claims which Tenant may otherwise have by
reason of the delay of delivery.
B. Landlord, at its sole option, may allow Tenant to enter
into the Premises for the purpose of installing furniture, fixtures and
equipment and other leasehold improvements, including, but not limited to,
wall and floor coverings, millwork and draperies, subject to the terms of
the Work Letter prior to the Commencement Date at its sole risk and with
no obligation to pay rent provided that such entry and work do not
unreasonably interfere in any way with the performance of Landlord's work
or other workers in and about the Building. At any time during such
period of early entry, if Landlord notifies Tenant that Tenant's entry or
work is interfering with or delaying the performance of work to be
performed by Landlord or other workers in and about the Building, or
causing any disruption whatsoever, Tenant shall forthwith discontinue any
further work and shall vacate the Premises, and shall cause its workmen or
contractors to remove therefrom, any equipment, materials or installations
which are the subject of Landlord's notice.
23. REMOVAL OF TENANT'S PROPERTY: All movable furniture and
personal effects of Tenant not removed from the Premises upon the vacation
or abandonment thereof or upon the termination of this Lease for any cause
whatsoever shall conclusively be deemed to have been abandoned and may be
appropriated, sold, stored, destroyed or otherwise disposed of by Landlord
without notice to Tenant and without obligation to account therefor, and
Tenant shall reimburse Landlord for all reasonable expenses incurred in
connection with the disposition of such property.
24. HOLDING OVER: Should Tenant hold over after the termination of
this Lease without Landlord's consent, Tenant shall be deemed a holdover
tenant at will. During such holdover period, Tenant shall be liable for
all damages incurred by Landlord as a result of Tenant's withholding of
the Premises. Should Tenant holdover after the termination of this Lease,
with Landlord's consent, Tenant shall become a tenant from month to month
only upon each and all of the terms herein provided as may be applicable
to such month to month tenancy and any such holding over shall not
constitute an extension of this Lease. During such holding over, Tenant
shall pay monthly rent equal to one hundred fifty percent (150%) of the
last monthly rental rate plus all other monetary charges as provided
herein. Such tenancy shall continue until terminated by Landlord, as
provided by law, or until Tenant shall have given to Landlord at least
thirty (30) days written notice prior to the last day of the calendar
month intended as the date of termination of such month to month tenancy.
25. PARKING AND COMMON AREAS: Tenant hereby agrees to rent from
Landlord during the Primary Lease Term, the quantity of parking spaces as
set forth on EXHIBIT E attached hereto and incorporated herein by this
reference. Tenant shall pay to Landlord rent for the parking space(s) as
set forth in EXHIBIT E. Such spaces shall be located as designated by
Landlord. Landlord shall have the right, without obligation, and from
time to time, to change the number of BUILDING total parking spaces, size,
location, shape and arrangement of parking areas and other common areas,
restrict parking of tenants or their guests to designated areas, designate
loading or handicap loading areas, change the level or grade of parking
and to charge for all parking or any portion thereof. Except as otherwise
specifically provided herein, all access roads, courtyards and other
areas, facilities or improvements furnished by Landlord are for the
general and nonexclusive use in common of all tenants of the Building, and
those persons invited upon the land upon which the Building is situated
and shall be subject to the exclusive control and management of Landlord,
and Landlord shall have the right, without obligation to establish, modify
and enforce such rules and regulations, which the Landlord may deem
reasonable and/or necessary. Unless as otherwise provided, Tenant's use
of the parking area, as herein set forth, shall be in common with other
tenants of the Building and any other parties permitted by Landlord to use
the parking area. The parking rights herein granted shall not be deemed a
lease but shall be construed as a license granted by Landlord to Tenant
for the term of this Lease. Notwithstanding the above, tenant is
guaranteed a minimum of nineteen parking spaces during the term of this
lease.
26. SURRENDER AND NOTICE: Upon the expiration or earlier
termination of this Lease, Tenant shall promptly quit and surrender to
Landlord the Premises broom clean, in good order and condition, ordinary
wear and tear and loss by fire or other casualty excepted, and Tenant
shall remove all of its movable furniture and other effects and such
alterations, additions and improvements 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 at the Interest Rate on all amounts not
paid by Tenant within five (5) days of demand, until paid in full.
27. ACCEPTANCE OF PREMISES BY TENANT: Taking possession of the
Premises by Tenant shall be conclusive evidence as against Tenant that the
Premises were in the condition agreed upon between Landlord and Tenant,
and acknowledgment of satisfactory completion of the fix-up work which
Landlord has agreed in writing to perform, except as otherwise set forth
herein.
28. SUBORDINATION AND ATTORNMENT:
A. This Lease, and all rights of Tenant hereunder, are and
shall be subject and subordinate in all respects to all present and future
ground leases, overriding leases and underlying leases and/or grants of
term of the real property and/or the Building or the Building Complex now
or hereafter existing and to all deeds of trust, mortgages and building
loan agreements, including leasehold mortgages and building loan
agreements, which may now or hereafter affect the Building or the Building
Complex or any of such leases, whether or not such deeds of trust or
mortgages shall also cover other lands or buildings, to each and every
advance made or hereafter to be made under such deeds of trust or
mortgages, and to all renewals, modifications, replacements and extension
of such leases, deeds of trust and mortgages. The provisions of this
Paragraph shall be self-operative and no further instrument of
subordination shall be required. However, in confirmation of such
subordination, Tenant shall promptly execute and deliver to Landlord (or
such other party so designated by Landlord) at Tenant's own cost and
expense, within five (5) days after request from Landlord an instrument,
in recordable form if required, that Landlord, the lessor of any such
lease or the holder of any such deed of trust or mortgage or any of their
respective successors in interest or assigns may request evidencing such
subordination. Failure by Tenant to comply with the requirements of this
Paragraph shall be a default hereunder. Notwithstanding the foregoing, in
the event that Tenant does not execute such documents as may be required
to confirm the subordination set forth in this Paragraph, Tenant hereby
grants to Landlord a power of attorney coupled with an interest to act as
Tenant's attorney in fact for the purposes of executing whatever documents
are necessary to evidence such subordination. The leases to which this
Lease is, at the time referred to, subject and subordinate pursuant to
this paragraph are hereinafter sometimes called "superior leases" and the
deeds of trust or mortgages to which this Lease is, at the time referred
to, subject and subordinate are hereinafter sometimes called "superior
deeds of trust" or "superior mortgages". The lessor of a superior lease
or the beneficiary of a superior deed of trust or superior mortgage or
their successors in interest or assigns are hereinafter sometimes
collectively referred to as a "superior party". Notwithstanding the
foregoing, upon Tenant's request, Landlord agrees to request such superior
party grant to Tenant a non-disturbance agreement in the form then being
used by such superior party for such purposes, providing that Tenant,
notwithstanding a default by Landlord, shall be entitled to remain in
possession of the Premises in accordance with the terms of this Lease for
so long as Tenant shall not be in default of any term, condition or
covenant of this Lease. Further, Tenant shall attorn to such superior
party.
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 the Building Complex or
of which the interest of the lessee therein under a superior lease
represents collateral in whole or in part, a lender shall request
reasonable modifications of this Lease as a condition of such financing,
Tenant will not unreasonably withhold its consent thereto provided that
such modifications do not increase the obligations of Tenant under this
Lease or adversely affect any rights of Tenant or decrease the obligations
of Landlord under this Lease.
29. PAYMENTS AFTER TERMINATION: No payments of money by Tenant to
Landlord after the termination of this Lease, in any manner, or after
giving of any notice (other than a demand for payment of money) by
Landlord to Tenant, shall reinstate, continue or extend the term of this
Lease or affect any notice given to Tenant prior to the payment of such
money, it being agreed that after the service of notice of the
commencement of a suit or other final judgment granting Landlord
possession of the Premises, Landlord may receive and collect any sums of
rent due, or any other sums of money due under the terms of this Lease or
otherwise exercise its rights and remedies hereunder. The payment of such
sums of money, whether as rent or otherwise, shall not waive said notice
or in any manner affect any pending suit or judgment theretofore obtained.
30. 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 served by hand
delivery or by deposit in the United States mail, with proper postage
prepaid, certified or registered, return receipt requested, addressed as
follows:
Investment Department
Provident Life and Accident Insurance Company
One Fountain Square
Chattanooga, TN 37402
All notices or demands required or permitted to be given to Tenant
hereunder shall be in writing and shall be served by hand delivery or by
deposit in the United States Mail, with proper postage prepaid, certified
or registered, return receipt requested, addressed to Tenant at the
Premises.
With a copy to:
EXECUTIVE TELECARD SA
1720 SOUTH BELLAIRE, # 1000
DENVER, CO
Either party shall have the right to designate in writing, served as
above provided, a different address to which notice is to be provided.
All notices or demands shall be deemed served on the day of delivery if
hand delivered, or three (3) days after deposit in the U.S. Mail, if sent
by registered or certified mail. The foregoing shall in no event prohibit
notice from being given as provided by the federal or state Rules of Civil
Procedure, as the same may be amended from time to time.
31. LIABILITY OF LANDLORD: Landlord's liability under this Lease
shall be limited to Landlord's estate and interest in the Building (or to
the proceeds thereof) and no other property or other assets of Landlord or
its partners (if Landlord is a partnership), agents, employees, legal
representatives, successors or assigns, shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this Lease, the relationship of Landlord
and Tenant hereunder or Tenant's use and occupancy of the Premises.
Nothing contained in this Paragraph shall be construed to permit Tenant to
offset against rents due a successor landlord, a judgment (or other
judicial process) requiring the payment of money by reason of any default
of a prior landlord, except as otherwise specifically set forth herein.
32. BROKERAGE: Tenant represents and warrants that it has dealt
only with MILE HIGH AND GRUBB & ELLIS (the "Broker") in the negotiation of
this Lease. Landlord shall make payment of the brokerage fee due to the
Broker pursuant to and in accordance with Landlord's separate agreement
with the Broker. Tenant hereby agrees to indemnify and hold the Landlord
harmless of and from any and all loss, costs, damages or expenses
(including, without limitation, all attorneys' fees and disbursements) by
reason of any claim of or liability to any other broker or person claiming
through Tenant and arising out of or in connection with the negotiation,
execution and delivery of this Lease. Additionally, Tenant acknowledges
and agrees that Landlord shall have no obligation for payment of any
brokerage fee or similar compensation to any person with whom Tenant has
dealt or may in the future deal with respect to leasing of any additional
or expansion space in the Building or renewals or extensions of this
Lease. In the event any claim shall be made against Landlord by any other
broker who shall claim to have negotiated this Lease on behalf of Tenant
or to have introduced Tenant to the Building or to Landlord, Tenant shall
be liable for payment of all reasonable attorneys' fees, costs and
expenses incurred by Landlord in defending against the same, and in the
event such broker shall be successful in any such action, Tenant shall, in
addition, make payment to such Broker.
33. TAXES:
A. Tenant shall be liable for and shall pay at least ten (10)
days before delinquency and Tenant hereby agrees to indemnify and hold
Landlord harmless from and against 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 ("Equipment Taxes"). If any Equipment Taxes are levied
against Landlord or Landlord's property or if the assessed value of
Landlord's property is increased by the inclusion therein of a value
placed upon such personal property, fixtures, machinery, equipment,
apparatus, systems or appurtenances of Tenant, and if Landlord, after
written notice to Tenant pays the Equipment Taxes or taxes based upon such
an increased assessment (which Landlord shall have the right to do
regardless of the validity of such levy, but under proper protest if
requested by Tenant prior to such payment and if payment under protest is
permissible), Tenant shall pay to Landlord upon demand, as Additional Rent
hereunder, the taxes so levied against Landlord or the proportion of such
taxes resulting from such increase in the assessment; provided, however,
that in any such event, Tenant shall have the right, on behalf of Landlord
and with Landlord's full cooperation, but at no cost to Landlord, to bring
suit in any court of competent jurisdiction to recover the amount of any
such tax so paid under protest, and any amount so recovered shall belong
to Tenant (provided Tenant has previously paid such amount to Landlord).
Notwithstanding the foregoing to the contrary, Tenant shall cooperate with
Landlord to the extent reasonably necessary to cause the fixtures,
furnishings, equipment and other personal property to be assessed and
billed separately from the real property of which the Premises form a
part, and Landlord shall use reasonable efforts to treat all other Tenants
on the same basis.
B. Tenant shall pay to Landlord, as Additional Rent, any
excise, sales, privilege or other tax, assessment or 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.
34. INTENTIONALLY DELETED.
35. RIGHTS RESERVED TO LANDLORD:
A. All portions of the Building are reserved to Landlord
except the Premises and the inside surfaces of all walls, windows and
doors bounding in the Premises, but including exterior building walls,
core corridor walls and doors and any core corridor entrance. Landlord
also reserves any space in or adjacent to the Premises used for shafts,
stacks, pipes, conduits, fan rooms, ducts, electric or other utilities,
sinks or other building facilities, and the use thereof, as well as the
right to access thereto through the Premises for the purposes of
operation, maintenance and repair, upon written notice of not less than
twenty-four (24) hours, except in the event of emergencies or apparent
emergencies, when no prior notice shall be required.
B. Landlord shall have the following rights without liability
to Tenant for damage or injury to property, person or business (all claims
for damage being hereby waived and released), and without effecting an
eviction or disturbance of Tenant's use or possession of the Premises or
giving rise to any claim for setoffs or abatement of rent:
(1) To enter the Premises as more fully provided in this
Lease.
(2) To install and maintain signs on the exterior and
interior of the Building, except within the Premises, provided the signs
do not block either completely or partially the exterior windows of the
Premises.
(3) To have pass keys to the Premises.
(4) To decorate, remodel, repair, alter or otherwise
prepare the Premises for re-occupancy during the last six (6) months of
the term hereof if, during or prior to such time, Tenant has vacated the
Premises, or at any time after Tenant abandons the Premises.
(5) To have access to all mail chutes according to the
rules of the United States Postal Service.
(6) To do or permit to be done any work in or about the
exterior of the Building or any adjacent or nearby building, land, street
or alley.
(7) To grant to anyone the exclusive right to conduct any
business or render any service in the Building, provided such exclusive
right shall not operate to exclude Tenant from the use expressly permitted
by this Lease.
36. 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.
37. SIGNAGE:
A. No sign, advertisement or notice shall be inscribed,
painted or affixed on any part of the inside or outside of the Building
unless of such color, size and style and in such place upon or in the
Building as shall be first designated by Landlord, but there shall be no
obligation or duty on Landlord to allow any sign, advertisement or notice
to be inscribed, painted or affixed on any part of the inside or outside
of the Building. A directory in a conspicuous place, with the names of
Tenant, not to exceed FOUR name, shall be provided by Landlord on a one
time basis. Any necessary revision to such directory and/or suite
identification sign shall be made by Landlord, at Tenant's expense, within
a reasonable time after written notice from Tenant of the change making
the revision necessary should Tenant become a full floor Tenant and if
Landlord chooses to construct a monument sign, Tenant will have the right
to use the sign at Landlord's discretion. Landlord shall have the right
to remove all non-permitted signs without notice to Tenant and at the
expense of Tenant.
B. Tenant shall only be permitted to install building standard
signs and logos, subject to Landlord's prior written consent and criteria
as to size, design, materials and location.
38. ATTORNEYS' FEES: In the event of any dispute hereunder, or any
default in the performance of any term or condition of this Lease, the
prevailing party shall be entitled to recover all costs and expenses
associated therewith, including reasonable attorneys' fees.
39. HAZARDOUS MATERIALS:
A. Tenant shall (i) not cause or permit any Hazardous Material
to be brought upon, kept, or used in or about the Premises by Tenant, its
agents, employees, contractors, licensees or invitees, without the prior
written consent of Landlord (which Landlord shall not unreasonably
withhold as long as Tenant demonstrates to Landlord's reasonable
satisfaction that such Hazardous Material is necessary or useful to
Tenant's business and will be used, kept and stored in a manner that
complies with all laws regulating any such Hazardous Material so brought
upon or used or kept in or about the Premises). If Tenant breaches the
obligations stated in the preceding sentence, or if the presence of
Hazardous Material on the Premises caused or permitted by Tenant results
in contamination of the Premises or Building Complex, or any part thereof,
or if contamination of the Premises or Building Complex by Hazardous
Material otherwise occurs for which Tenant is legally liable to Landlord
for damages resulting therefrom, then Tenant shall indemnify, defend and
hold Landlord, its agents, employees, legal representatives, successors
and assigns, harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities, or losses (including, without
limitation, diminution in value of the Premises and Building Complex,
damages for the loss or restriction on use of any rentable or usable space
or of any amenity of the Premises or Building Complex, damages arising
from any adverse impact on marketing of space in the Building, and sums
paid in settlement of claims, attorneys' fees, consultant fees and expert
fees) which arise during or after the Lease term as a result of such
contamination. This indemnification of Landlord by Tenant includes,
without limitation, costs incurred in connection with any investigation of
site conditions or any cleanup, remedial, removal or restoration work
required by any federal, state, or local governmental agency or political
subdivision because of Hazardous Material present in or about the Building
Complex or the soil or ground water on or under the Building Complex.
Without limiting the foregoing, if the presence of any Hazardous Material
on or about the Building Complex caused or permitted by Tenant results in
any contamination of any portion thereof, Tenant shall promptly take all
actions at its sole expense as are necessary to return the Building
Complex to the condition existing prior to the introduction of any such
Hazardous Material, subject to obtaining Landlord's prior written consent
to the actions to be taken by Tenant. Landlord may properly require its
consent to the selection of the contractors and other experts involved in
the inspection, testing and removal or abatement activities, the scope of
activities to be performed, the manner and method for performance of such
activities, and such other matters as may be required or requested by
Landlord for the safety of and continued use of the Building Complex and
all occupants thereof. The obligations and liabilities of Tenant herein
shall survive expiration or termination of this Lease.
B. "Hazardous Material", as used in this Lease, shall be
construed in its broadest sense and shall include asbestos, other
asbestotic material (which is currently or may be designated in the future
as a Hazardous 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 a hazardous or toxic substance, or
other similar term, by any federal, state or local law, statute,
regulation, or ordinance affecting the Building Complex or Premises
presently in effect or that may be promulgated in the future, as such
statutes, regulations and ordinances may be amended from time to time.
40. BANKRUPTCY OR INSOLVENCY. If the Tenant becomes a debtor under
Chapter 7 of the United States Bankruptcy Code, or in the event that a
petition for reorganization or adjustment of debts is filed concerning the
Tenant under Chapter 11 or Chapter 13 of the Bankruptcy Code, or a
proceeding filed under Chapter 7 is transferred to Chapter 11 or 13, the
Trustee or the Tenant, as Debtor-in-Possession, shall be deemed to have
rejected this Lease. No election by the Trustee or Debtor-in-Possession
to assume this Lease shall be effective unless each of the following
conditions, which Landlord and Tenant hereby acknowledge to be
commercially reasonable in the context of a bankruptcy proceeding, has
been satisfied, and the Landlord has so acknowledged in writing:
A. The Trustee or Debtor-in-Possession has cured, or has
provided the Landlord "adequate assurance" (as hereinafter defined) that
from the date of such assumption, the Trustee or Debtor-in-Possession will
promptly cure all monetary and non-monetary defaults under this Lease.
B. The Trustee or Debtor-in-Possession has compensated, or has
provided to the Landlord adequate assurance that within ten (10) days of
the date of assumption, the Landlord will be compensated, for any
pecuniary loss incurred by the Landlord arising from default of the
Tenant, the Trustee or the Debtor-in-Possession as recited in the
Landlord's written statement of pecuniary loss sent to the Trustee or
Debtor-in-Possession.
C. The Trustee or Debtor-in-Possession has provided the
Landlord with adequate assurance of future performance of each of the
Tenant's, the Trustee's, or Debtor-in-Possession's obligations under this
Lease; provided, however, that:
(1) The Trustee or Debtor-in-Possession shall also deposit
with the Landlord, as security for the timely payment of rent and other
sums due hereunder, an amount equal to three months Base Rent, Additional
Rent and other monetary charges accruing under this Lease; and
(2) The obligations imposed upon the Trustee or Debtor-in-
Possession shall continue with respect to the Tenant or any assignee of
this Lease after the completion of the bankruptcy proceedings.
D. For purposes of this Paragraph, Landlord and Tenant
acknowledge that, in the context of the bankruptcy proceeding of the
Tenant, at a minimum, "adequate assurance" shall mean:
(1) The Trustee or Debtor-in-Possession will continue to
have sufficient unencumbered assets after the payment of all secured
obligations and administrative expenses to assure the Landlord that the
Trustee or Debtor-in-Possession will have sufficient funds to fulfill all
of the obligations of Tenant under this Lease; or
(2) The Bankruptcy Court shall have entered an order
segregating sufficient cash payable to the Landlord, and the Trustee or
Debtor-in-Possession shall have granted to the Landlord a valid and
perfected first lien and security interest or mortgage in property of the
Tenant, the Trustee or Debtor-in-Possession, acceptable as to value and
kind to the Landlord, in order to secure to the Landlord the obligation of
the Tenant, Trustee or Debtor-in-Possession to cure the monetary or non-
monetary defaults under the Lease within the time period set forth above.
E. The following conditions shall apply to any assignment of
this Lease in Bankruptcy Proceedings:
(1) If the Trustee or Debtor-in-Possession has assumed
this Lease and elects to assign the Lease to any other person, such
interest or estate of Tenant in this Lease may be so assigned only if the
Landlord has acknowledged in writing that the intended assignee can
provide to the Landlord "adequate assurance of future performance" (as
hereinafter defined) of all of the terms, covenants and conditions of this
Lease to be performed by the Tenant.
(2) For the purposes of this provision, Landlord and
Tenant acknowledge that, in the context of a bankruptcy proceeding, at a
minimum, "adequate assurance of future performance" shall mean that each
of the following conditions has been satisfied, and the Landlord has so
acknowledged in writing:
(a) The proposed assignee has submitted a
current financial statement audited by a Certified Public Accountant which
shows the net worth and working capital and amounts determined by Landlord
to be sufficient to assure the future performance by such assignee of all
of Tenant's obligations under this Lease;
(b) The proposed assignee, if requested by the
Landlord, shall have obtained guarantees in form and substance
satisfactory to the Landlord from one or more persons who satisfy the
Landlord's standards of creditworthiness;
(c) The Landlord has obtained all consents or
waivers from any third party required under any lease, mortgage, financing
arrangement, or other agreement by which the Landlord is bound, in order
to permit the Landlord to consent to such assignment.
41. MISCELLANEOUS:
A. The rules and regulations attached hereto as EXHIBIT F, as
well as such rules and regulations as may hereafter be adopted by Landlord
for the safety, care and cleanliness of the Premises and the Building and
the preservation of good order thereon, are hereby expressly made a part
hereof, and Tenant agrees to obey all such rules and regulations. The
violation of any of such rules and regulations by Tenant shall be deemed a
breach of this Lease by Tenant affording Landlord all the remedies set
forth herein. Landlord shall not be responsible to Tenant for the
nonperformance by any other tenant or occupant of the Building of any of
said rules and regulations.
B. The term "Landlord" as used in this Lease, so far as
covenants or obligations on the part of Landlord are concerned, shall be
limited to mean and include only the owner or owners of the Building at
the time in question, and in the event of any transfer or transfers of the
title 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. As used in this Lease, the term "ordinary business hours"
shall mean the hours from 7:00 a.m. to 6:00 p.m., Monday through Friday,
and 8:00 a.m. to 1:00 p.m. on Saturday, except for New Year's Day,
Presidents' Day, Memorial Day, Independence Day, Labor Day, Thanksgiving
Day, Christmas Day, and any other national or state holiday as may be
established from time to time ("Holidays").
D. This Lease shall be construed as though the covenants
herein between Landlord and Tenant are independent and not dependent and
Tenant shall not be entitled to any setoff of the rent or other amounts
owing hereunder against Landlord, if Landlord fails to perform its
obligations set forth herein, except as herein specifically set forth;
provided, however, the foregoing shall in no way impair the right of
Tenant to commence a separate action against Landlord for any violation by
Landlord of the provisions hereof so long as notice is first given to
Landlord and any holder of a mortgage or deed of trust covering the
Building Complex or any portion thereof whose address Tenant has been
notified in writing and so long as an opportunity has been granted to
Landlord and such holder to correct such violation as provided in
Paragraph 41(h) hereof.
E. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during the
term of this Lease, then and in that event, it is the intention of the
parties hereto that the remainder of this Lease shall not be affected
thereby, 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.
F. The captions of each paragraph are added as a matter of
convenience only and shall be considered of no effect in the construction
of any provision or provisions of this Lease.
G. Except as herein specifically set forth, all terms,
conditions and covenants to be observed and performed by the parties
hereto shall be applicable to and binding upon their respective heirs,
administrators, executors, successors and assigns. The terms, conditions
and covenants hereof shall also be considered to be covenants running with
the land.
H. Except as otherwise specifically provided herein, in the
event Landlord shall fail to perform any of the agreements, terms,
covenants or conditions hereof on Landlord's part to be performed, and
such nonperformance shall continue for a period of thirty (30) days after
written notice thereof, from Tenant to Landlord, or if such performance
cannot be reasonably had within such thirty (30) day period, and Landlord
shall not in good faith have commenced such performance within such thirty
(30) day period and proceed therewith to completion, it shall be
considered a default of Landlord under this Lease. Tenant shall give
written notice to Landlord in the matter herein set forth and shall afford
Landlord a reasonable opportunity to cure any such default. In addition,
Tenant shall send notice of such default by certified or registered mail,
with proper postage prepaid, to the holder of any mortgages or deeds of
trust covering the Building Complex or any portion thereof of whose
address Tenant has been notified in writing and shall afford such holder a
reasonable opportunity to cure any alleged default on Landlord's behalf.
I. If there is more than one entity or person which or who are
the Tenants under this Lease, the obligations imposed upon Tenant under
this Lease shall be joint and several.
J. No act or thing done by Landlord or Landlord's agent during
the term hereof, including but not limited to any agreement to accept
surrender of the Premises or to amend or modify this Lease, shall be
deemed to be binding upon Landlord unless such act or things shall be by
an officer of Landlord or a party designated in writing by Landlord as so
authorized to act. The delivery of keys to Landlord, or Landlord's agent,
employees or officers shall not operate as a termination of this Lease or
a surrender of the Premises. No payment by Tenant or receipt by Landlord
of a 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.
K. Landlord shall have the right to construct other buildings
or improvements in any common area, or any other area designated by
Landlord for use by tenants or to change the location, character or make
alterations of or additions to any of said common areas or other areas.
Landlord, during the entire term of this Lease, shall have the right to
change the number and name of the Building at any time without liability
to Tenant.
L. Tenant acknowledges and agrees that it has not relied upon
any statements, representations, agreements or warranties, except such as
are expressed in this Lease.
M. Notwithstanding anything to the contrary contained herein,
Landlord's liability under this Lease shall be limited to its interests in
this building.
N. Time is of the essence hereof.
O. Tenant and Landlord and the party executing this Lease on
behalf of each of them represent to each other that such party is
authorized to do so by requisite action of the board of directors or
partners, as the case may be, and agree upon request to deliver to each
other a resolution or similar document to that effect.
P. This Lease shall be governed by and construed in accordance
with the laws of the State where the Premises are located.
Q. This Lease, together with the exhibits attached hereto,
contains the entire agreement of the parties and may not be amended or
modified in any manner except by an instrument in writing signed by both
parties. Tenant shall not record this Lease or a memorandum hereof.
R. Tenant shall not use the name of the Building, the Building
Complex or the development in which the Building is situated as part of
its legal or trade name, nor for any purpose other than as an address for
the business to be conducted by Tenant in the Premises.
S. In the event Landlord makes available to Tenant and its
employees any area of the Building Complex for use as an athletic/health
facility, Tenant agrees, on behalf of itself and its employees, that
Landlord shall have no liability for any damages or injuries incurred by
any person as a result of the use of such facility.
T. The submission or delivery of this document for examination
and review does not constitute an option, an offer to lease space in the
Building or an agreement to lease. This document shall have no binding
effect on the parties unless and until executed by both Landlord and
Tenant.
U. Tenant acknowledges that the presence in and use of the
Tower Colorado Fitness Center can constitute a dangerous activity and may
expose the user to considerable risk of personal injury or death. Tenant
agrees to indemnify and hold harmless Landlord, its agents, employees,
contractors, legal representatives, successors and assigns from all
liability and all claims of liability for any injury to or death of
Tenant, its employees and any authorized and/or unauthorized guests or
invitees, resulting from the use of the Tower Colorado Fitness Center.
Tenant further agrees that it and any of its employees shall execute, if
requested by Landlord, a release of liability agreement before access to
the Tower Colorado Fitness Center is allowed. Landlord may deny access to
Tenant or any individual who refuses to execute said agreement.
42. LABORATORY SAMPLES: Tenant hereby acknowledges and agrees that,
in the event Tenant requires any off-Premises testing of blood or tissue
samples ("Samples") which Samples are picked up by a testing laboratory or
other courier service, such Samples shall be picked up from inside the
Tenant's Premises and shall not be left in any common area of the Building
for pick-up. The Samples shall be disseminated only to those persons who
are authorized by Tenant to remove Tenant's Samples from the Premises.
Landlord shall in no manner be responsible for Samples, Furthermore,
Tenant hereby agrees to indemnify and hold Landlord harmless from and
against any loss, claim, damage, cost or expense including, without
limitation, attorneys' fees, which Landlord may incur as the result of the
existence of the Samples.
43. MEDICAL WASTE:
A. Tenant shall be responsible for the same and complete
disposal of all items, instruments or things which are utilized by Tenant,
its agents or employees, in the treatment of patients or other individuals
treated upon the Premises, including but not limited to: needles,
syringes, bandages, medical instruments, tissues, containers, receptacles,
swabs, etc., as well as any and all potentially, possible or actually
contaminated, hazardous, diseased, infected or infectious material,
substance or thing utilized or brought upon the Premises by Tenant or
others. All such disposal shall comply fully with all applicable laws and
regulations.
B. Tenant hereby indemnifies Landlord, its agents and
employees, from any judgment, loss or claim, including attorneys' fees
incurred in defending against any such loss or claim entered against,
incurred or sustained by any or either of them as the result of any injury
to any individual or entity occasioned by contact with or exposure to any
infectious, infected, hazardous or contaminated material, substance or
thing utilized, applied, removed or received by Tenant, its agents or
employees.
44. RIGHT OF FIRST OPTION:
A. Provided that Tenant is not then in default under the Lease
and has not previously defaulted in the payment of any amounts due under
the Lease (subject to applicable grace periods, if any and subject to any
previous or existing rights of other tenants in the building which exist
as of the date hereof). Tenant shall have the right (the "Option to
Expand") to lease all or a portion of the remaining additional space on
the tenth floor of the building which is adjacent to the Premises (the
"Option Space") as the same may become available during the initial term
of the Lease, on the terms and conditions set forth herein.
B. Prior to execution of a lease on the First Option Premises,
Landlord agrees to notify Tenant in writing of said bona fide third party
offer, which notification shall contain the terms and conditions of the
written offer.
C. Tenant shall have two (2) business days from receipt of
said written offer to exercise this Right of First Option. In the event
that Tenant does elect to exercise this Right of First Option, Tenant
shall, within three (3) business days from receipt of said written offer
to exercise thereof, enter into a lease agreement for said premises with
Landlord on the same terms and conditions as said bona fide third party
offer or the terms and conditions outlined herein, whichever is higher.
Notwithstanding anything herein the Tenant Improvements will be prorated
based on the time remaining on this Lease.
D. The Option is personal to Tenant and is not transferable to
any assignee, sublessee or other successor in interest.
45. OPTION TO RENEW: Provided that Tenant is not in default under
the Terms of this Lease, or if Tenant cures any such default within the
time period provided elsewhere herein, Tenant shall have a one-time right
to renew ("Option to Renew") this Lease for one (1) additional term(s) of
five (5) year(s), subject to the following terms and conditions:
A. The Base Rent for renewal term shall be the then prevailing
market lease rate for comparable office space at the time of renewal, but
in no event shall the base rent for the renewal term be less than the Base
Rent for the Primary Lease Term.
B. Notice of Tenant's intent to renew the Lease shall be given
to Landlord at least one hundred eighty (180) days prior to the expiration
date of the Primary Lease Term.
C. Tenant's leasing of the Premises during the Renewal Term
shall be subject to the same terms, covenants and conditions set forth in
the Lease with the exception or any provision granting Tenant a tenant
finish allowance, or similar monetary inducement or concession, and with
the exception of base rent.
D. Failure of Tenant to exercise the Option to Renew in the
time and manner set forth herein shall result in automatic termination of
the same.
E. The Option to Renew may not be exercised by any subtenant
and may only be exercised by an assignee if simultaneously exercised by
the assignee and the Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the
day and year first above written.
LANDLORD:
Provident Life and Accident Insurance Company,
a Tennessee Corporation
BY: AMRESCO Management, Inc., Servicer
By: /s/
Title: Authorized Signatory
TENANT:
EXECUTIVE TELECARD, S.A.
a Corporation
By:
Title:
STATE OF COLORADO )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 19 , by as Authorized Signatory
of PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, a Tennessee corporation.
Witness my hand and official seal.
My Commission Expires:
Notary Public
STATE OF COLORADO )
) ss
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 15th day of
December, 1995, by as of
.
Witness my hand and official seal.
My Commission Expires: 12-16-99
/s/ Shirley M. Young
Notary Public
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is made and entered into this 19th day
of April, 1996, by and between Provident Life and Accident Insurance
Company, a Tennessee Corporation, as successor in interest to Provident
National Assurance Company, ("Landlord"), and Executive TeleCard, SA
("Tenant").
RECITALS
A. Landlord and Tenant entered in that certain office lease, dated
December 15, 1995 (hereinafter "Lease"), pursuant to which Tenant leased
Suite 1000, consisting of approximately 8,095 square feet of rentable area
(hereinafter "Premises"), of the office building known as Tower Colorado,
located at 1720 S. Bellaire St., Denver, Colorado (hereinafter
"Building").
B. Tenant has requested and Landlord has agreed to lease to Tenant
an additional 2,433 square feet ("Expansion Premises") which space has
been designated on Exhibit "A" of the First Amendment to Lease.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Landlord and Tenant amend the Lease as
follows:
1. PREMISES. Landlord and Tenant agree the Rentable Area Leased is
8,095, the Expansion Premises rentable leased area is 2,433 square feet
for a total of 10,528 square feet as designated on Exhibit "A" of the
First Amendment to Lease.
2. TERM. Landlord and Tenant desire to lease the Expansion
Premises conterminously with the existing premises.
3. RENTAL. Tenant agrees to pay Landlord for use and occupancy of
the Premises and Expansion Premises, without notice or demand in advance
on the first day of each calendar month during the Lease Extension. The
base rental shall be as follows:
MONTHS ANNUAL RENT MONTHLY RENT
1-12 $142,128.00 $11,844.00
13-24 $147,392.05 $12,282.67
25-36 $152,656.03 $12,721.34
37-48 $157,920.00 $13,160.00
49-60 $163,183.97 $13,598.66
5. PARKING. Tenant shall be entitled to an additional six (6)
parking spaces in the parking garage at no charge for the initial term.
6. TENANT FINISH. Landlord shall, at Landlords sole cost and
expense (which expense shall not exceed $19,464.00) alter and construct
the expansion space on the 10th floor using Landlords standard building
materials, herein defined as the quantity, style and quality of material
finishes and workmanship from time to time specified by Landlord for Tower
Colorado, including architectural and construction drawings. If the
tenant finish costs exceed the $19,464.00 allowance, all additional costs
will be the sole cost and expense of the tenant and such cost will be due
and payable within sixty (60) days of a written invoice from Landlord.
7. TENANT'S PROPORTIONATE SHARE. Tenant's Proportionate Share
shall be changed to 8.196%.
8. BROKERAGE. Tenant warrants that it had no dealings with any
broker, agent or any other person in connection with the negotiation or
execution of this Amendment other than Mile High Property Services, Inc.,
and other agents, and employees of other agents, purported to represent
the Landlord.
Tenant agrees to indemnify and hold harmless Landlord from and
against any and all cost, expense, or liability for commissions or other
compensation and charges claimed by any broker or agent with respect to
this Lease on account of Tenant's acts. Landlord agrees to indemnify and
hold harmless Tenant from and against any and all cost, expense, or
liability for commissions or other compensation and charges claimed by any
broker or agent with respect to this Lease on account of Landlord's acts.
In the event this Amendment to Lease conflicts with, varies from or
modifies the terms and provisions of the Lease, then, in such event, the
terms and provisions hereof shall control and govern the rights and
obligations of Landlord and Tenant. In all other respects, the terms of
the Lease and First Amendment to Lease are republished and reaffirmed
hereby and shall remain binding on the parties, their representative and
assigns, except as specifically modified in this Agreement.
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Lease this 24th day of April, 1996.
LANDLORD: PROVIDENT LIFE AND ACCIDENT INSURANCE
COMPANY
BY: AMRESCO Management, Inc., Servicer
By: /s/
Title: Vice President
TENANT: EXECUTIVE TELECARD, SA
By: /s/
Title: Executive Vice President