<\/p>\n15. Security Deposit: $14,459.92 in cash or
\n acceptable letter of credit<\/p>\n
16. Parking Spaces: None assigned<\/p>\n
17. Tenant Finish Allowance $112,277.00 per Workletter<\/p>\n
18. Option on Additional Space: None<\/p>\n
19. Option to Renew: Two 5-year terms @ 95% of
\n Market Rates<\/p>\n
20. Right of First Offer: Yes<\/p>\n
EXHIBITS:<\/p>\n
A – Premises<\/p>\n
B – Legal Description<\/p>\n
C – Estoppel and Commencement Date Certificate<\/p>\n
D – Work Letter Agreement<\/p>\n
E – Rules and Regulations<\/p>\n
F – Other Rights of Opportunity
\n to Lease Space<\/p>\n
<\/c><\/s><\/table>\n
Note: This Lease Summary does not in any way modify the terms of the
\n Lease, but rather is for information purposes only. The Lease should
\n be consulted for the specific terms of the Lease Agreement.<\/p>\n
OFFICE\/LIGHT MANUFACTURING LEASE
\n (2900 Center Green Court South)
\n (Boulder, Colorado)<\/p>\n
THIS LEASE is made this _____ day of January, 2000, between THW
\nPARTNERS LIMITED PARTNERSHIP, a Colorado limited partnership (“Landlord”) and
\nGILEAD SCIENCES, INC., a Delaware corporation (“Tenant”).<\/p>\n
1. PREMISES: Landlord hereby leases to Tenant those certain premises
\ndesignated on the Plans attached hereto as EXHIBIT A and incorporated herein
\nby this reference (the “Premises”), consisting of a total of approximately
\n10,207 square feet of space and known as the second floor in the building at
\n2900 Center Green Court South in Boulder, Colorado (hereinafter the
\n“Building”), located on the real property more particularly described on
\nEXHIBIT B attached hereto and incorporated herein by this reference, together
\nwith a non-exclusive right, subject to the provisions hereof, to use all
\nappurtenances thereunto, including, but not limited to, parking areas, and
\nany other areas designated by Landlord for use by tenants of the Building
\n(the Building, the real property on which the same is situated, parking
\nareas, other buildings thereon and areas and appurtenances are hereinafter
\ncollectively sometimes called the “Building Complex”). This Lease is subject
\nto the terms, covenants and conditions set forth herein and Tenant and
\nLandlord each covenant as a material part of the consideration for this Lease
\nto keep and perform each and all of said terms, covenants and conditions to
\nbe kept and performed by them.<\/p>\n
2. TERM:<\/p>\n
(a) The term of this Lease shall be for Five (5) years (the
\n“Primary Lease Term”) commencing at 12:01 a.m. on March 1, 2000 (the
\n“Commencement Date”) and terminating at 11:59 p.m. on February 28, 2005 (the
\n“Termination Date”), unless sooner terminated pursuant to the terms hereof.
\nIf Landlord constructs the tenant improvements pursuant to the Workletter
\n(Exhibit D), in the event that the Premises are not “Ready for Occupancy,” as
\nsuch term is defined in Paragraph 20 hereof, prior on or before the
\nCommencement Date, the Commencement Date (and the date for commencement of
\nrental payments) shall mean and refer to the date the Premises are Ready for
\nOccupancy. If Tenant constructs the tenant improvements pursuant to the
\nWorkletter (Exhibit D), the Commencement Date and the date for commencement
\nof rental payments may be deferred as a result of any Landlord Delays, as
\ndescribed in Paragraph 20 hereof.<\/p>\n
(b) If, as a result of the postponement or acceleration of
\nthe Commencement Date, the term would begin other than on the first day of
\nthe month, Tenant shall pay proportionate rent at the same monthly rate set
\nforth herein (also in advance) for such partial month and all other terms and
\nconditions of this Lease shall be in force and effect during such partial
\nmonth, and the end of the term hereof shall be adjusted to a date which is
\nthe last day of the month five (5) years after the Commencement Date. Tenant
\nagrees to execute and deliver to Landlord, in form attached hereto as EXHIBIT
\nC, an Estoppel and Commencement Date Certificate, within thirty (30) days of
\nthe date the term commences, certifying as to the actual <\/p>\n
commencement and termination dates of the term, the rent commencement date,
\nif different, and such other matters as may be required by Landlord.<\/p>\n
3. RENT: Tenant shall pay rent to Landlord for the Premises from the
\nCommencement Date through December 31, 2000 at the rate of One Hundred
\nSeventy Three Thousand, Five Hundred and Nineteen Dollars ($173,519) per
\nyear, payable in equal monthly installments of Fourteen Thousand Four Hundred
\nFifty Nine and 92\/100 Dollars ($14,459.92).<\/p>\n
A portion of the foregoing rent is Tenant’s Pro-Rata Share of
\nOperating Expenses for the calendar year 1999, the exact amount of which
\nremains to be determined. The balance of the foregoing rent is defined as
\n“Base Rent.”<\/p>\n
On January 1, 2001, and on each January 1st thereafter throughout
\nthe term and any extended term of this Lease, the Operating Expense component
\nof the rent shall be adjusted as provided in paragraph 5.b. of this Lease.<\/p>\n
On March 1, 2001, and on each March 1st thereafter throughout the
\nterm and any extended term of this Lease, the Base Rent due for the ensuing
\nyear shall be increased by 3% of the Base Rent payable during the preceding
\nyear.<\/p>\n
All installments of Rent shall be payable in advance, on the first (1st) day
\nof each calendar month during the term hereof. Rent for the first and last
\nmonths of the term, hereof shall be prorated based upon the number of days
\nduring each of said months that the Lease term was in effect. One monthly
\ninstallment of Rent shall be due and payable on the date of execution of this
\nLease by Tenant. All Rent shall be paid without notice, demand, deduction or
\noffset, at the office of Landlord or to such other person or at such other
\nplace as Landlord may designate in writing. Tenant shall pay to Landlord as
\n“Additional Rent” all other sums due under this Lease.<\/p>\n
4. SECURITY DEPOSIT: It is agreed that Tenant, concurrently with the
\nexecution of this Lease, has deposited with Landlord, and will keep on
\ndeposit at all times during the term hereof, a sight draft letter of credit
\nfrom a reputable financial institution satisfactory to Landlord, payable to
\nLandlord, in the amount of Fourteen Thousand Four Hundred Fifty Nine and
\n92\/100 Dollars ($14,459.92), the receipt of which is hereby acknowledged, as
\nsecurity for the payment by Tenant of the rent and all other sums herein
\nagreed to be paid and for the faithful performance of all the terms,
\nconditions and covenants of this Lease. If, at any time during the term
\nhereof, Tenant shall be in default in the performance of any provisions of
\nthis Lease, Landlord shall have the right, but shall not be obligated, to
\ndraw upon said letter of credit and to use the proceeds therefrom, or so much
\nthereof as necessary, in payment of any rent in default, reimbursement of any
\nexpense incurred by Landlord, and in payment of any damages incurred by the
\nLandlord by reason of Tenant’s default. In such event, Tenant shall, on
\nwritten demand of Landlord, forthwith remit to Landlord a sufficient amount
\nin cash to restore said deposit to its original amount. In the event said
\ndeposit has not been utilized as aforesaid, said deposit, or as much thereof
\nas has not been utilized for such purposes, shall be refunded to Tenant,
\nwithout interest, within sixty (60) days after the termination of this Lease
\nupon full performance of this Lease by Tenant and vacation of the Premises by
\nTenant. Landlord shall have the right to commingle any cash portion <\/p>\n
of said deposit with other funds of Landlord. Landlord may assign the letter
\nof credit and deliver any cash funds deposited herein by Tenant to any
\npurchaser of Landlord’s interest in the Premises who assumes all of
\nLandlord’s obligations under this Lease and holds such letter of credit
\nand\/or cash pursuant to the terms of this Lease, in the event such interest
\nis sold, and thereupon Landlord shall be discharged from further liability
\nwith respect to such deposit. If said letter of credit is not assignable,
\nTenant agrees to replace the letter of credit payable to Landlord with one
\npayable to any such purchaser of the Premises. If the valid claims of
\nLandlord exceed the amount of said deposit, Tenant shall remain liable for
\nthe balance of such claims.<\/p>\n
5. ADDITIONAL RENT:<\/p>\n
(a) The following terms shall have the following meanings with
\nrespect to the provisions of this Paragraph 5:<\/p>\n
(1) “Building Complex Rentable Area” shall mean all
\nrentable space available for lease in the Building Complex, calculated on the
\nbasis set forth in BOMA Publication #ANSIZ-65.1-1980. If there is a
\nsignificant change in the aggregate Building Complex Rentable Area, of a
\npermanent nature, as a result of an addition to the Building Complex, partial
\ndestruction thereof or similar circumstance, Landlord’s Accountants (as
\nherein defined) shall determine and make an appropriate adjustment to the
\nprovisions herein.<\/p>\n
(2) “Tenant’s Pro Rata Share” shall mean a fraction, the
\nnumerator of which is the BOMA Rentable Area of the Premises (i.e. 10,207
\nsquare feet) and the denominator of which is the Building Complex Rentable
\nArea (i.e. 33,909 square feet), and is equal to 30.10%. At such time, if
\never, any space is added to or subtracted from the Premises pursuant to the
\nterms of this Lease, Tenant’s Pro Rata Share shall be increased or decreased
\naccordingly.<\/p>\n
(3) “Operating Expenses” shall mean:<\/p>\n
A. All operating expenses of any kind or nature
\nwhich are necessary, ordinary or customarily incurred with respect to the
\noperation and maintenance of the Building Complex as determined in accordance
\nwith generally accepted accounting principles and shall include, but not be
\nlimited to:<\/p>\n
(i) Costs of supplies, including but not
\nlimited to the cost of “relamping” all Building lighting as the same may be
\nrequired from time to time;<\/p>\n
(ii) Costs incurred in connection with
\nobtaining and providing energy for the Building Complex, including but not
\nlimited to costs of propane, butane, natural gas, steam, electricity, solar
\nenergy and fuel oils, coal or any other energy sources as well as costs for
\nheating, ventilation, and air conditioning services (“HVAC”);<\/p>\n
(iii) Costs of water and sanitary and
\nstorm drainage services;<\/p>\n
(iv) Costs of janitorial and security
\nservices, if any;<\/p>\n
(v) Costs of general maintenance and
\nrepairs, including costs under HVAC and other mechanical maintenance
\ncontracts; and repairs and replacements of equipment used in connection with
\nthe maintenance and repair work;<\/p>\n
(vi) Costs of maintenance and replacement
\nof landscaping, sprinkler systems; and costs of supplies, maintenance,
\nrepair, striping and repaving of parking areas, common areas, plazas and
\nother areas of the Building Complex, including trash and snow removal;<\/p>\n
(vii) Insurance premiums, including fire
\nand all-risk coverage, together with loss of rent endorsement; public
\nliability insurance; and any other insurance carried by Landlord on the
\nBuilding Complex or any component parts thereof;<\/p>\n
(viii) Labor costs, including wages and
\nother payments, costs to Landlord of workmen’s compensation and disability
\ninsurance, payroll taxes, welfare fringe benefits incurred directly in
\nconnection with the operation of the Building Complex, and all legal fees and
\nother costs or expenses incurred in resolving any labor disputes;<\/p>\n
(ix) Professional building management
\nfees not to exceed market rate management fees in the Boulder area;<\/p>\n
(x) Legal, accounting, inspection and
\nother consultation fees (including, without limitation, fees charged by
\nconsultants retained by Landlord for services that are designed to produce a
\nreduction in Operating Expenses or reasonably to improve the operation,
\nmaintenance or state of repair of the Building Complex) incurred for the
\nnormal prudent operation of the Building Complex (but not those incurred in
\nconnection with Landlord’s business relationship or dealings with tenants or
\nprospective tenants);<\/p>\n
(xi) The costs of capital improvements
\nand structural repairs and replacements made in or to the Building Complex or
\nthe cost of any machinery or equipment installed in the Building Complex in
\norder to conform to changes, subsequent to the Lease Commencement Date, in
\nany applicable laws, ordinances, rules, regulations or orders of any
\ngovernmental or quasi-governmental authority having jurisdiction over the
\nBuilding Complex (herein, “Required Capital Improvement”); and the costs of
\nany capital improvements and structural repairs and replacements designed
\nprimarily to reduce Operating Expenses (herein, “Cost Savings Improvements”).
\nThe expenditures for Required Capital Improvements and Cost Savings
\nImprovements shall be amortized and included within annual Operating Expenses
\nover the useful life of such capital improvement or structural repair or
\nreplacement (as determined by Landlord’s accountants), provided that the
\namortized amount of any Cost Savings Improvement shall be limited in any year
\nto the reduction in Operating Expenses as a result thereof. Landlord shall
\napprise Tenant of its plans to make any Required Capital Improvement or Cost
\nSavings Improvement prior to commencement of work on such improvements. The
\nforegoing shall not, however, imply that Tenant has any right to approve of
\nsuch improvements or be construed to <\/p>\n
require Tenant’s consent to any such improvement;<\/p>\n
(xii) All real property taxes and
\nassessments (“Taxes and Assessments”) levied against the Building Complex by
\nany governmental or quasi-governmental authority, including any taxes,
\nassessments, surcharges, or service or other fees of a nature not presently
\nin effect which shall hereafter be levied on the Building Complex as a result
\nof the use, ownership or operation of the Building Complex or for any other
\nreason, whether in lieu of or in addition to any current real estate taxes
\nand assessments; provided, however, that any taxes which shall be levied on
\nthe rentals of the Building Complex shall be determined as if the Building
\nComplex were Landlord’s only property and provided further, that in no event
\nshall the term “Taxes and Assessments”, as used herein, include any federal,
\nstate or local income taxes levied or assessed on Landlord, unless such taxes
\nare a specific substitute for real property taxes; such term shall, however,
\ninclude gross taxes on rentals and expenses incurred by Landlord for tax
\nconsultants and in contesting the amount or validity of any such Taxes or
\nAssessments (all of the foregoing are collectively referred to herein as
\n“Taxes”). “Assessments” shall include any and all so-called special
\nassessments, license tax, business license fee, business license tax,
\ncommercial rental tax, levy, charge or tax imposed by any authority having
\nthe direct power to tax, including any city, county, state or federal
\ngovernment, or any school, agricultural, lighting, water, drainage or other
\nimprovement or special district thereof, against the Premises, the Building
\nor the Building Complex, or against any legal or equitable interest of
\nLandlord therein. For the purposes of this Lease, any special assessment
\nshall be deemed payable in such number of installments as is permitted by
\nlaw, whether or not actually so paid. If the Building Complex has not been
\nfully assessed as a completed project, for the purposes of computing the Real
\nEstate Taxes for any adjustment required herein, the same shall be increased
\nby Landlord’s Accountants, in accordance with their estimate of what the
\nassessment will be, upon full completion of the Building Complex, including
\ninstallation of all tenant finish items. The terms “taxes” and “assessments”
\nas used herein shall not include any interest, penalties or fines resulting
\nfrom delinquency in payments or other causes.<\/p>\n
(xiii) Any other expense which under
\ngenerally accepted accounting principles would be considered a normal
\nmaintenance or operating expense. If Landlord selects an accrual accounting
\nbasis for calculating Operating Expenses, Operating Expenses shall be deemed
\nto have been paid when such expenses have accrued in accordance with
\ngenerally accepted accounting principles.<\/p>\n
B. But shall expressly exclude Landlord’s income
\ntaxes; leasing commissions, advertising and promotional expenses; interest on
\ndebt or amortization payments on any mortgages or deeds of trust;
\ndepreciation, costs of repairs or other work occasioned by fire, windstorm or
\nother casualty to the extent of insurance proceeds received; costs and
\nexpenditures which Landlord has treated (or which Landlord should, in
\naccordance with U.S. Generally Accepted Accounting Principals treat), for its
\naccounting purposes, as a capital expenditure, other than Required Capital
\nImprovements and Cost Savings Improvements referred to in Paragraph
\n5(a)(3)(xi) above, and any other expense which under generally accepted
\naccounting principles would not be considered a normal maintenance or
\noperating expense, except as otherwise specifically provided herein.<\/p>\n
b. It is hereby agreed that Tenant shall pay to Landlord as
\nAdditional Rent, commencing January 1, 2001, Tenant’s Pro Rata Share of the
\namount by which Operating Expenses for the calendar year 2000 exceed the
\nOperating Expenses for the calendar year 1999, payable monthly, on the same
\ndate and at the same place Base Rent is payable. In a like manner, Additional
\nRent shall be adjusted as of each January 1st during the Term. Landlord shall
\ndeliver to Tenant, as soon as practicable following the end of any calendar
\nyear, a calculation of the Operating Expenses for the calendar year just
\nended and the adjustment in rent resulting from any excess of such Operating
\nExpenses over the Operating Expenses for the base year of 1999 (the “Budget
\nSheet”). Until receipt of the Budget Sheet, Tenant shall continue to pay its
\nmonthly Tenant’s Pro Rata Share of Operating Expenses based upon the amount
\npaid during the preceding calendar year. To the extent that the Budget Sheet
\nreflects Tenant’s Pro Rata Share of Operating Expenses for the new calendar
\nyear greater than the amount actually paid to the date of receipt of the
\nBudget Sheet for the new calendar year, Tenant shall pay such amount to
\nLandlord within thirty (30) days of receipt of the Budget Sheet. Upon receipt
\nof the Budget Sheet, Tenant shall thereafter pay the amount of its monthly
\nTenant’s Pro Rata Share of Operating Expenses as set forth in the Budget
\nSheet.<\/p>\n
c. If the Lease term hereunder covers a period of less than
\na full calendar year during the last calendar year of the term hereof,
\nTenant’s Pro Rata Share of Operating Expenses for such partial year shall be
\nadjusted accordingly to reflect the number of months in such year during
\nwhich Tenant leased the Premises.<\/p>\n
d. Tenant shall have the right at its own expense and at a
\nreasonable time (after written notice to Landlord) within ninety (90) days
\nafter receipt of the Budget Sheet to audit Landlord’s books relevant to the
\nAdditional Rent due under this Paragraph 5. Landlord shall fully cooperate
\nwith Tenant in connection with such audit. In the event Tenant does not audit
\nLandlord’s books and deliver the results thereof to Landlord within said
\n90-day period, the terms and amounts set forth in the Budget Sheet shall be
\ndeemed conclusive and final and Tenant shall have no further right to
\nadjustment unless the failure to complete such audit is caused by Landlord’s
\nfailure to provide or make available to Tenant the information necessary to
\ncomplete such audit, in which case such time period shall be appropriately
\nexpanded. In the event Tenant’s examination reveals that an error has been
\nmade in Landlord’s determination of Tenant’s Pro Rata Share of Operating
\nExpenses and Real Estate Taxes and Landlord agrees with such determination,
\nthen the amount of such adjustment shall be payable by Landlord or Tenant, to
\nthe other party as the case may be. In the event Tenant’s examination reveals
\nan error has been made in Landlord’s determination of Tenant’s Pro Rata Share
\nof Operating Expenses and Real Estate Taxes, and Landlord disagrees with the
\nresults thereof, Landlord shall have thirty (30) days to obtain, at its own
\nexpense, an audit from an accountant of its choice to determine Tenant’s Pro
\nRata Share of Operating Expenses and Real Estate Taxes. In the event
\nLandlord’s accountant and Tenant’s accountant are unable to reconcile their
\naudits, both accountants shall mutually agree upon a third accountant, whose
\ndetermination of Tenant’s Pro Rata Share of Operating Expenses and Real
\nEstate Taxes shall be conclusive. In the event the amount of error by
\nLandlord is determined to be ten percent (10%) or more, the reasonable costs
\nof the three audits made pursuant to this <\/p>\n
subparagraph shall be paid by Landlord. In the event the amount of error by
\nLandlord is determined to be less than ten percent (10%), the reasonable
\ncosts of the three audits made pursuant to this subparagraph shall be paid by
\nTenant.<\/p>\n
e. Landlord’s failure during the Lease term to prepare and
\ndeliver any statements or bills, or Landlord’s failure to make a demand under
\nthis Paragraph or under any other provision of this Lease shall not in any
\nway be deemed to be a waiver of, or cause Landlord to forfeit or surrender
\nits rights to collect any items of Additional Rent which may have become due
\npursuant to this Paragraph during the term of this Lease. Tenant’s liability
\nfor all Additional Rent due under this Paragraph 5 shall survive the
\nexpiration or earlier termination of this Lease.<\/p>\n
f. Notwithstanding anything in this paragraph 5 to the
\ncontrary, Tenant shall only be responsible for Additional Rent resulting from
\nan increase in Operating Expenses over Base Operating Expenses commencing on
\nthe first day of January, 2001, based on any increase or estimated increase
\nof Operating Expenses during the calendar year 2000 over those incurred
\nduring 1999. Thereafter, adjustments in the amount of any Additional Rent
\nshall occur as of the first day of each calendar year during the remaining
\nInitial Term and any Extended Term of this Lease.<\/p>\n
6. CHARACTER OF OCCUPANCY:<\/p>\n
(a) The Premises are to be occupied for office and light
\nmanufacturing uses not inconsistent with the character and type of tenancy
\nfound in comparable first-class office\/light manufacturing buildings in the
\nBoulder area and for no other purpose without the prior written consent of
\nLandlord. By way of limitation, the term “light manufacturing uses” shall
\ninclude only the packaging and distribution of pharmaceutical products and
\nnot the manufacture or testing of pharmaceutical products.<\/p>\n
(b) Tenant shall not suffer nor permit the Premises nor any
\npart thereof to be used in any manner, nor anything to be done therein, nor
\nsuffer or permit anything to be brought into or kept therein, which would in
\nany way (i) make void or voidable any fire or liability insurance policy then
\nin force with respect to the Building Complex, (ii) make unobtainable from
\nreputable insurance companies authorized to do business in Colorado any fire
\ninsurance with extended coverage, or liability, boiler or other insurance
\nrequired to be furnished by Landlord under the terms of any lease or mortgage
\nto which this Lease is subordinate, at standard rates, (iii) cause or in
\nLandlord’s reasonable opinion be likely to cause physical damage to the
\nBuilding Complex or any part thereof, (iv) constitute a public or private
\nnuisance, (v) impair, in the reasonable opinion of Landlord, the appearance,
\ncharacter or reputation of the Building Complex, (vi) discharge objectionable
\nfumes, vapors or odors into the air conditioning system or into any flues or
\nvents not designed to receive them or otherwise in such manner as may
\nunreasonably offend other occupants of the Building Complex, (vii) impair or
\ninterfere with any of the Building Complex services or impair or interfere
\nwith or tend to impair or interfere with the use of any of the other areas of
\nthe Building Complex by, or occasion discomfort, or annoyance to Landlord or
\nany of the other tenants or occupants of the Building Complex, any such
\nimpairment or interference to be based upon the reasonable opinion of
\nLandlord, (viii) increase on an ongoing <\/p>\n
periodic basis the pedestrian traffic in and out of the Premises or the
\nBuilding Complex above an ordinary level, (ix) create waste in, on or around
\nthe Premises, Building, or Building Complex, or (x) make any noise or set up
\nany vibration which will disturb other tenants, except in the course of
\npermitted repairs or alterations at times permitted by Landlord.<\/p>\n
(c) Tenant shall not use the Premises nor permit anything
\nto be done in or about the Premises or Building Complex in any way which will
\nconflict with any law, statute, ordinance, protective covenants affecting the
\nBuilding Complex or governmental or quasi-governmental rules or regulations
\nnow in force or which may hereafter be enacted or promulgated. Tenant shall
\ngive prompt written notice to Landlord of any notice it receives of the
\nviolation of any law or requirement of any public authority with respect to
\nthe Premises or the use or occupation thereof. Landlord shall give prompt
\nwritten notice to Tenant of any notice it receives relative to the violation
\nby Tenant of any law or requirement of any public authority with respect to
\nthe Premises or the use or occupation thereof.<\/p>\n
7. SERVICES AND UTILITIES:<\/p>\n
(a) Landlord agrees, and in accordance with standards from
\ntime to time prevailing for first-class office\/light manufacturing buildings
\nin the Boulder area: (i) to furnish water to the Building for use in
\nlavatories and drinking fountains (and to the Premises if the plans for the
\nPremises so provide); (ii) to furnish heating and air conditioning service;
\n(iii) to furnish all gas and electric services reasonably required in and to
\nthe Premises, (iv) to furnish such snow removal services to the Building
\nComplex as may, in the judgment of Landlord, be reasonably required for safe
\naccess to the Building Complex, and (v) to provide and pay for all reasonable
\nand normal management and operating expenses of the Building and the
\nPremises, including trash removal (except janitorial services and maintenance
\nwithin the Premises).<\/p>\n
(b) If Tenant requires water in excess of that usually
\nfurnished or supplied for use in the Premises as general office space, Tenant
\nshall first procure the consent of Landlord for the use thereof. Tenant
\nagrees to pay to Landlord such amounts as Landlord determines are necessary
\nto cover the costs of such increased use of water, including, but not limited
\nto, the cost of installation, monitoring, maintenance and repair of any check
\nmeter or other instrument necessary to measure the use of additional water.
\nLandlord additionally reserves the right and at its option shall be entitled
\nto cause the Premises to be separately metered for water usage.<\/p>\n
(c) Tenant agrees that Landlord shall not be liable for
\nfailure to supply any required services during any period when Landlord uses
\nreasonable diligence to supply such services, or during any period Landlord
\nis required to reduce or curtail such services pursuant to any applicable
\nlaws, rules or regulations, now or hereafter in force or effect, it being
\nunderstood and agreed to by Tenant that Landlord may discontinue, reduce or
\ncurtail such services, or any of them, at such times as it may be necessary
\nby reason of accident, unavailability of employees, repairs, alterations,
\nimprovements, strikes, lockouts, riots, acts of God, application of
\napplicable laws, statutes, rules and regulations, or due to any other
\nhappening beyond the reasonable control of Landlord. In the event of any such
\ninterruption, reduction or discontinuance of Landlord’s <\/p>\n
services, Landlord shall not be liable for damages to persons or property as
\na result thereof, nor shall the occurrence of any such event in any way be
\nconstrued as an eviction of Tenant or cause or permit an abatement, reduction
\nor setoff of rent, or operate to release Tenant from any of Tenant’s
\nobligations hereunder, so long as such services are resumed within a
\nreasonable period of time.<\/p>\n
(d) In the event that Tenant has any special or additional
\nelectrical or mechanical requirements related to its use of the Premises, any
\nsuch electrical or mechanical equipment must be located within the Premises.
\nSuch electrical or mechanical requirements, for the purposes hereof, shall
\ninclude by way of example, but not limitation, any internal telephone system.
\nThe foregoing shall in no way be construed as granting to Tenant additional
\nrights to use any such special or additional electrical or mechanical
\nequipment in its Premises without the prior written consent of Landlord. Any
\nadditional cost or expense related to or resulting from such electrical or
\nmechanical requirements shall be the sole obligation of Tenant. Landlord
\nacknowledges that Tenant occupies space in other locations, and that the
\nPremises and the other locations will be interconnected with telephone and
\ncomputer services. However, such interconnection shall not involve any
\nelectrical, mechanical or telecommunication equipment located on the outside
\nof the Building or within the Building other than in the Premises or involve
\nany structural penetration or wiring within walls or roof of the Building or
\nPremises, without the Landlord’s prior written consent.<\/p>\n
(e) Tenant at its sole cost and expense shall take good
\ncare of the Premises, ordinary wear and tear excepted, and keep the same free
\nfrom waste at all times, and pay all charges for janitorial services
\nperformed in the leased Premises during the term of this Lease.<\/p>\n
8. QUIET ENJOYMENT: Subject to the provisions of this Lease,
\nLandlord covenants that Tenant, on paying the rent and performing the
\ncovenants of this Lease on its part to be performed, shall and may peacefully
\nand quietly have, hold and enjoy the Premises for the term of this Lease.
\nLandlord shall not be responsible for the acts or omissions of any other
\ntenant or third party which may interfere with Tenant’s use and enjoyment of
\nthe Premises. In the event of any transfer or transfers of Landlord’s
\ninterest in the Premises or in the real property of which the Premises are a
\npart, other than a transfer for security purposes only, the transferor shall
\nbe automatically relieved of any and all obligations and liabilities on the
\npart of Landlord accruing from and after the date of such transfer; provided
\nthat the transferee agrees to accept and perform all obligations and
\nresponsibibilities of Landlord under this Lease from and after the date of
\ntransfer and agrees to accept and acknowledge all rights of Tenant under this
\nLease from and after the date of transfer.<\/p>\n
9. MAINTENANCE AND REPAIRS:<\/p>\n
(a) Notwithstanding any other provisions of this Lease,
\nLandlord shall repair and maintain in good order, condition and repair the
\nroof, foundations, and exterior walls of the Building excluding store fronts,
\nglass windows, door closure devices, door frames and locks, except to the
\nextent such maintenance and repairs are caused by the negligent act or
\nomission of Tenant, its agents, servants, employees, licensees or invitees,
\nin which case Tenant shall either, at its option: (i) pay to Landlord, <\/p>\n
on demand, the cost of such maintenance and repairs performed by Landlord
\nless the amount of any insurance proceeds received by Landlord on account
\nthereof, if applicable; or (ii) promptly repair and maintain the damage it
\nhas caused to the Premises, doing so in accordance with building standards
\nand in compliance with all local building codes and governmental regulations
\nand with the requirements of this Lease dealing with alterations, maintenance
\nand repairs. Landlord shall also maintain and keep in good order public
\nportions of the Building Complex, including but not limited to landscaping,
\nwalkways and parking areas.<\/p>\n
(b) Tenant, at Tenant’s sole cost and expense, shall
\nmaintain, in good order, condition and repair, the Premises, including the
\ninterior surfaces of the ceilings, interior walls and floors, all doors,
\ninterior and exterior glass and windows, store fronts, door closure devices,
\ndoor frames and locks, plumbing (excluding restrooms) and electrical wiring,
\nswitches, fixtures and other mechanical items, and shall replace light bulbs
\nwithin the Premises as necessary. In the event Tenant fails to so maintain
\nthe Premises in good order, condition and repair, ordinary wear and tear
\nexcepted, Landlord shall give Tenant notice to do such acts as are reasonably
\nrequired to maintain the Premises. In the event Tenant fails to promptly
\ncommence such work and diligently pursue it to completion, then Landlord
\nshall have the right, but shall not be required, to do such acts and expend
\nsuch funds at the expense of Tenant as are reasonably required to perform
\nsuch work. Tenant shall reimburse Landlord for all costs and expenses
\nincurred in performing such work within ten (10) days of invoice. Landlord
\nshall have no liability to Tenant for any damage, inconvenience or
\ninterference with the use of the Premises by Tenant as a result of performing
\nany such work.<\/p>\n
(c) Landlord and Tenant shall each do all acts required to
\ncomply with all applicable laws, ordinances, regulations and rules of any
\npublic authority relating to their respective maintenance obligations as set
\nforth herein.<\/p>\n
10. ALTERATIONS AND ADDITIONS:<\/p>\n
(a) Other than is provided for in Exhibit D, Tenant shall
\nmake no permanent alterations, additions or improvements to the Premises or
\nany part thereof without obtaining the prior written consent of Landlord,
\nwhich consent shall not be unreasonably withheld or delayed. Tenant shall
\nsubmit any such request to Landlord at least thirty (30) days prior to the
\nproposed commencement date of such work. Landlord may impose, as a condition
\nto such consent, and at Tenant’s sole cost, such reasonable requirements as
\nLandlord may deem necessary in its judgment, including without limitation,
\nthe manner in which the work is done, a right of approval of the contractor
\nby whom the work is to be performed and the times during which the work is to
\nbe accomplished, approval of all plans and specifications and the procurement
\nof all licenses and permits. Landlord shall be entitled to post notices on
\nand about the Premises with respect to Landlord’s non-liability for
\nmechanics’ Liens and Tenant shall not permit such notices to be defaced or
\nremoved. Tenant further agrees not to connect any apparatus, machinery or
\ndevice to the Building systems, including electric wires, water pipes, fire
\nsafety, heating and mechanical systems, without the prior written consent of
\nLandlord.<\/p>\n
(b) All alterations, improvements and additions to the
\nPremises, <\/p>\n
including, by way of illustration but not by limitation, all counters,
\nscreens, grilles, special cabinetry work, partitions, paneling, carpeting,
\ndrapes or other window coverings and light fixtures, but excluding any
\ncomputer systems, telephone or other communication systems and similar
\nequipment, shall be deemed a part of the real estate and the property of
\nLandlord and shall remain upon and be surrendered with the Premises as a part
\nthereof without molestation, disturbance or injury at the end of the Lease
\nterm, whether by lapse of time or otherwise. With respect to any alterations,
\nimprovements and additions made to the Premises without Landlord’s prior
\nwritten consent, Landlord, by notice given to Tenant no later than fifteen
\n(15) days prior to the end of the term, may elect to have Tenant remove all
\nor any of such alterations, improvements or additions (excluding non-movable
\noffice walls), and in such event, Tenant shall promptly remove, at its sole
\ncost and expense, such alterations, improvements and additions and restore
\nthe Premises to the condition in which the Premises were prior to the making
\nof the same, reasonable wear and tear excepted. Any such removal, whether
\nrequired or permitted by Landlord, shall be at Tenant’s sole cost and
\nexpense, and Tenant shall restore the Premises to the condition in which the
\nPremises were prior to the making of the same, reasonable wear and tear
\nexcepted. All movable partitions, machines and equipment which are installed
\nin the Premises by or for Tenant, without expense to Landlord, and which can
\nbe removed without structural damage to or defacement of the Building or the
\nPremises, and all furniture, furnishings and other articles of personal
\nproperty owned by Tenant and located in the Premises (all of which are herein
\ncalled “Tenant’s Property”) shall be and remain the property of Tenant. If
\nany of Tenant’s Property is removed, however, Tenant shall repair or pay the
\ncost of repairing any damage to the Building or the Premises resulting from
\nsuch removal. All additions or improvements which are to be surrendered with
\nthe Premises shall be surrendered with the Premises, as a part thereof, at
\nthe end of the term or the earlier termination of this Lease.<\/p>\n
(c) If Landlord permits persons requested by Tenant to
\nperform any alterations, repairs, modifications or additions to the Premises,
\nthen prior to the commencement of any such work, Tenant shall deliver to
\nLandlord certificates issued by insurance companies qualified to do business
\nin the State of Colorado evidencing that workmen’s compensation, public
\nliability insurance and property damage insurance, all in amounts, with
\ncompanies and on forms satisfactory to Landlord, are in force and maintained
\nby all such contractors and subcontractors engaged by Tenant to perform such
\nwork. All such policies shall name Landlord as an additional insured and
\nshall provide that the same may not be canceled or modified without thirty
\n(30) days prior written notice to Landlord.<\/p>\n
(d) Tenant, at its sole cost and expense, shall cause any
\npermitted alterations, decorations, installations, additions or improvements
\nin or about the Premises to be performed in compliance with all applicable
\nrequirements of insurance bodies having jurisdiction, and in such manner as
\nnot to interfere with, delay, or impose any additional expense upon Landlord
\nin the construction, maintenance or operation of the Building, and so as to
\nmaintain harmonious labor relations in the Building.<\/p>\n
11. ENTRY BY LANDLORD:<\/p>\n
(a) Landlord and its agents shall have the right to enter
\nthe Premises <\/p>\n
at all reasonable times and upon reasonable notice for the purpose of
\nexamining or inspecting the same, to supply any services to be provided by
\nLandlord hereunder, to show the same to prospective purchasers and
\nprospective tenants of the Building, and to make such alterations, repairs,
\nimprovements or additions to the Premises or to the Building as Landlord may
\ndeem necessary or desirable. Landlord and its agent may enter the Premises at
\nall times and without advance notice and without liability to Tenant for
\ndamage caused by such entry, whether forced or otherwise, for the purpose of
\nresponding to an actual or apparent emergency. If, during the last 60 days of
\nthe term hereof, Tenant shall have removed substantially all of its property
\nfrom the Premises, Landlord may immediately enter and alter, renovate and
\nredecorate the Premises without elimination or abatement of rent or incurring
\nliability to Tenant for any compensation.<\/p>\n
12. MECHANIC’S LIENS: Except to the extent of Landlord’s obligation
\nto pay for tenant finish, as provided for in Exhibit D, Tenant shall pay or
\ncause to be paid all costs for work done by or on behalf of Tenant or caused
\nto be done by or on behalf of Tenant on the Premises of a character which
\nwill or may result in liens against Landlord’s interest in the Premises,
\nBuilding or Building Complex and Tenant will keep the Premises, Building and
\nBuilding Complex free and clear of all mechanic’s liens and other liens on
\naccount of work done for or on behalf of Tenant or persons claiming under
\nTenant. Except to the extent of Landlord’s obligation to pay for tenant
\nfinish, as provided for in Exhibit D, Tenant hereby agrees to indemnify,
\ndefend and save Landlord harmless of and from all liability, loss, damages,
\ncosts or expenses, including reasonable attorneys’ fees, incurred in
\nconnection with any claims of any nature whatsoever for work performed for,
\nor materials or supplies furnished to Tenant, including lien claims of
\nlaborers, materialmen or others. Should any such liens be filed or recorded
\nagainst the Premises, Building or Building Complex with respect to work done
\nfor or materials supplied to or on behalf of Tenant or should any action
\naffecting the title thereto be commenced, Tenant shall cause such liens to be
\nreleased of record within five (5) days after notice thereof pursuant to the
\nmeans provided therefore under Colorado statute. If Tenant desires to contest
\nany such claim of lien, Tenant shall nonetheless cause such lien to be
\nreleased of record by the posting of adequate security with a court of
\ncompetent jurisdiction as may be provided by Colorado’s mechanics lien
\nstatutes. If Tenant shall be in default in paying any charge for which such a
\nmechanics lien or suit to foreclose such a lien has been recorded or filed
\nand shall not have caused the lien to be released as aforesaid, after
\nconsulting with Tenant, Landlord may (but without being required to do so)
\npay such lien or claim and any costs associated therewith, and the amount so
\npaid, together with reasonable attorneys’ fees incurred in connection
\ntherewith, shall be immediately due from Tenant to Landlord as Additional
\nRent.<\/p>\n
13. DAMAGE TO PROPERTY, INJURY TO PERSONS:<\/p>\n
(a) Tenant, as a material part of the consideration to be
\nrendered to Landlord under this Lease, hereby waives all claims of liability
\nthat Tenant or Tenant’s legal representatives, successors or assigns may have
\nagainst Landlord, and Tenant hereby indemnifies and agrees to hold Landlord
\nharmless from any and all claims of <\/p>\n
liability for any injury or damage to any person or property whatsoever: (1)
\noccurring in, on or about the Premises or any part thereof; and (2) occurring
\nin, on or about the Building Complex, to the extent such injury or damage is
\ncaused by the negligent act or omission of Tenant, its agents, contractors,
\nemployees, licensees or invitees. Tenant further agrees to indemnify and to
\nhold Landlord harmless from and against any and all claims arising from any
\nbreach or default in the performance of any obligation on Tenant’s part to be
\nperformed under the terms of this Lease, or arising from any act of
\nnegligence of Tenant, or any of its agents, contractors, employees, licensees
\nor invitees. Such indemnities shall include by way of example, but not
\nlimitation, all costs, reasonable attorneys’ fees, expenses and liabilities
\nincurred in or about any such claim, action or proceeding.<\/p>\n
(b) Landlord shall not be liable to Tenant for: (i) any
\ndamage by or from any act or negligence of any co-tenant or other occupant of
\nthe Building Complex, or by any owner or occupant of adjoining or contiguous
\nproperty, or (ii) any injury or damage to persons or property resulting in
\nwhole or in part from the criminal activities of others, unless Landlord has
\nreceived actual and timely knowledge of any threat, occurrance or event which
\nposes a risk of injury or damage to Tenant, unless Landlord has a legal and
\npractical remedy available to it to abate, remedy or eliminate such risk, and
\nunless Landlord has failed to take reasonable steps to abate, remedy or
\neliminate such risk. To the extent not covered by normal fire and extended
\ncoverage insurance, Tenant agrees to pay for all damage to the Building
\nComplex, as well as all damage to persons or property of other tenants or
\noccupants thereof, caused by the misuse or negligent act or omission of
\nTenant or any of its agents, contractors, employees, licensees or invitees.<\/p>\n
(c) Neither party nor their agents or employees shall be
\nliable to the other party for the loss or damage to any property occurring by
\ntheft or otherwise, nor for any injury or damage to persons or property
\nresulting from fire, explosion, falling plaster, steam, gas, electricity,
\nwater or rain which may leak from any part of the Building Complex or from
\nthe pipes, appliances or plumbing works therein or from the roof, street or
\nsubsurface or from any other place or resulting from dampness, or any other
\ncause whatsoever; provided, however, nothing contained herein shall be
\nconstrued to relieve either party from liability for any personal injury or
\nproperty damage resulting from its negligence. Neither Landlord nor its
\nagents or employees shall be liable for interference with the lights, view or
\nother incorporeal hereditaments, nor shall Landlord be liable to Tenant or
\nits officers, employees, guests or invitees for any damages arising from any
\nlatent defect in the Premises or in the Building or Building Complex unless
\nresulting from Landlord’s negligence. Each party shall give prompt notice to
\nthe other in case of fire or accidents in or about the Premises or the
\nBuilding or of defects therein or in the fixtures or equipment located
\ntherein.<\/p>\n
(d) In case any claim, demand, action or proceeding is made
\nor brought against Landlord or Tenant, its agents or employees, by reason of
\nany obligation on the other party’s part to be performed under the terms of
\nthis Lease, or arising from any act or negligence of either party, its agents
\nor employees, or which gives rise to either party’s obligation to indemnify
\nthe other, the party shall be responsible for all costs and expenses,
\nincluding but not limited to reasonable attorneys’ fees incurred in defending
\nor prosecution of the same, as applicable.<\/p>\n
(e) Landlord, as a material part of the consideration to be
\nrendered to Tenant under this Lease, hereby waives all claims of liability
\nthat Landlord or Landlord’s legal representatives, successors or assigns may
\nhave against Tenant and Landlord hereby indemnifies and agrees to hold Tenant
\nharmless from any and all claims of liability for any injury or damage to any
\nperson or property whatsoever: (1) occurring in, on or about the Premises or
\nany part thereof: and (2) occurring in, on or about the Building Complex, to
\nthe extent such injury or damage is caused by the negligent act or omission
\nof Landlord, its agents, contractors, or employees. Landlord further agrees
\nto indemnify and hold Tenant harmless from and against any and all claims
\narising from any breach or default in the performance of any obligation on
\nLandlord’s part to be performed under the terms of this Lease, or arising
\nfrom any act of negligence of Landlord, or any of its agents, contractors, or
\nemployees. Such indemnities shall include by way of example, but not
\nlimitation, all costs, reasonable attorneys’ fees, expenses and liabilities
\nincurred in or about any such claim, action or proceeding.<\/p>\n
14. INSURANCE:<\/p>\n
(a) Landlord agrees to carry and maintain the following
\ninsurance during the term of this Lease and any extension hereof: fire and
\nextended coverage and general public liability insurance against claims for
\npersonal injury, including death and property damage in or about the Premises
\nand the Building or the Building Complex (excluding Tenant’s Property), such
\ninsurance to be in amounts sufficient to provide reasonable protection for
\nthe Building Complex. Such insurance may expressly exclude property paid for
\nby tenants or paid for by Landlord for which tenants have reimbursed Landlord
\nlocated in or constituting a part of the Building or the Building Complex.
\nSuch insurance shall afford coverage for damages resulting from (a) fire, (b)
\nperils covered by extended coverage insurance, and (c) explosion of steam and
\npressure boilers and similar apparatus located in the Building or the
\nBuilding Complex. All such insurance shall be procured from a responsible
\ninsurance company or companies authorized to do business in Colorado and may
\nbe obtained by Landlord by endorsement on its blanket insurance policies.<\/p>\n
(b) Tenant shall procure and maintain at its own cost at
\nall times during the term of this Lease and any extensions hereof, hazard,
\nfire and extended coverage on Tenant’s property and the contents of the
\nPremises, comprehensive general liability insurance, including coverage for
\nbodily injury, property damage, personal injury, products, host liquor legal
\nliability and broad form property damage with the following limits of
\nliability: One Million Dollars ($1,000,000.00) each occurrence combined
\nsingle limit for bodily injury, property damage and personal injury; One
\nMillion Dollars ($1,000,000.00) aggregate for bodily injury and property
\ndamage and for products liability. All such insurance shall be procured from
\na responsible insurance company or companies authorized to do business in
\nColorado, and shall be otherwise satisfactory to Landlord. All such policies
\nshall name Landlord as an additional insured, and shall provide that the same
\nmay not be canceled or materially altered except upon thirty (30) days prior
\nwritten notice to Landlord. All insurance maintained by Tenant shall be
\nprimary to any insurance provided by Landlord. If Tenant obtains any general
\nliability insurance policy on a claims-made basis, Tenant shall provide
\ncontinuous liability coverage for claims arising during the entire term of
\nthis Lease, regardless of when <\/p>\n
such claims are made, either by obtaining an endorsement providing for an
\nunlimited extended reporting period in the event such policy is canceled or
\nnot renewed for any reason whatsoever or by obtaining new coverage with a
\nretroactive date the same as or earlier than the expiration date of the
\ncanceled or expired policy. Tenant shall provide certificate(s) of such
\ninsurance to Landlord upon commencement of the Lease term and at least thirty
\n(30) days prior to any annual renewal date thereof and upon request from time
\nto time and such certificate(s) shall disclose that such insurance names
\nLandlord as an additional insured, in addition to the other requirements set
\nforth herein. The limits of such insurance shall not, under any
\ncircumstances, limit the liability of Tenant hereunder.<\/p>\n
(c) Each party agrees to use its best efforts to include in
\neach of its policies insuring against loss, damage or destruction by fire or
\nother casualty a waiver of the insurer’s right of subrogation against the
\nother party, or if such waiver should be unobtainable or unenforceable (i) an
\nexpress agreement that such policy shall not be invalidated if the insured
\nwaives the right of recovery against any party responsible for a casualty
\ncovered by the policy before the casualty; or (ii) any other form of
\npermission for the release of the other party. If such waiver, agreement or
\npermission shall not be, or shall cease to be, obtainable without additional
\ncharge or at all, the insured party shall so notify the other party promptly
\nafter learning thereof. In such case, if the other party shall so elect and
\nshall pay the insurer’s additional charge therefor, such waiver, agreement or
\npermission shall be included in the policy, or the other party shall be named
\nas an additional insured in the policy. Each such policy which shall so name
\na party hereto as an additional insured shall contain, if obtainable,
\nagreements by the insurer that the policy will not be canceled without at
\nleast thirty (30) days prior notice to both insureds and that the act or
\nomission of one insured will not invalidate the policy as to the other
\ninsured. Any failure by either party, if named as an additional insured,
\npromptly to endorse to the order of the other party, without recourse, any
\ninstrument for the payment of money under or with respect to the policy of
\nwhich the other party is the owner or original or primary insured, shall be
\ndeemed a default under this Lease.<\/p>\n
(d) Each party hereby releases the other party with respect
\nto any claim (including a claim for negligence) which it might otherwise have
\nagainst the other party for loss, damage or destruction with respect to its
\nproperty (including the Building, Building Complex, the Premises and rental
\nvalue or business interruption) occurring during the term of this Lease to
\nthe extent to which it is insured under a policy or policies containing a
\nwaiver of subrogation or permission to release liability or naming the above
\nparty as an additional insured as provided above.<\/p>\n
15. DAMAGE OR DESTRUCTION TO BUILDING:<\/p>\n
(a) In the event that the Premises or the Building are
\ndamaged by fire or other insured casualty and the insurance proceeds have
\nbeen made available therefor by the holder or holders of any mortgages or
\ndeeds of trust covering the Building, the damage shall be repaired by and at
\nthe expense of Landlord to the extent of such insurance proceeds are
\navailable therefor, provided such repairs and restoration can, in Landlord’s
\nreasonable opinion, be made within one hundred fifty (150) days after the
\noccurrence of such damage without the payment of overtime or <\/p>\n
other premiums, and until such repairs and restoration are completed, the
\nBase Rent shall be abated in proportion to the part of the Premises which is
\nunusable by Tenant in the conduct of its business, as may be reasonably
\ndetermined by Landlord, (but there shall be no abatement of Base Rent by
\nreason of any portion of the Premises being unusable for a period equal to
\none day or less). Landlord agrees to notify Tenant within forty-five (45)
\ndays after such casualty if it estimates that it will be unable to repair and
\nrestore the Premises within said one hundred fifty (150) day period. Such
\nnotice shall set forth the approximate length of time Landlord estimates will
\nbe required to complete such repairs and restoration. Notwithstanding
\nanything to the contrary contained herein, if Landlord cannot or estimates it
\ncannot make such repairs and restoration within said one hundred fifty (150)
\nday period or fails to do complete such repairs and restoration within said
\n150-day period, then Tenant may, by written notice to Landlord, cancel this
\nLease, provided such notice is given to Landlord within fifteen (15) days
\nafter Landlord notifies Tenant of the estimated time for completion of such
\nrepairs and restoration, or within 15 days following the expiration of said
\n150-day period, as the case may be. Notwithstanding the preceding sentence,
\nTenant may not cancel this Lease as hereinabove stated if the damage to the
\nPremises or the Building is in whole or in part the result of the act,
\nomission, fault or negligence of Tenant, its agents, contractors, employees,
\nlicensees or invitees. Except as provided in this Paragraph 15, there shall
\nbe no abatement of rent and no liability of Landlord by reason of any injury
\nto or interference with Tenant’s business or property arising from the making
\nof any such repairs, alterations or improvements in or to the Building,
\nPremises or fixtures, appurtenances and equipment. Tenant understands that
\nLandlord will not carry insurance of any kind on Tenant’s Property, including
\nfurniture and furnishings, or on any fixtures or equipment removable by
\nTenant under the provisions of this Lease, or any improvement installed in
\nthe Premises by or on behalf of Tenant, and that Landlord shall not be
\nobligated to repair any damage thereto or replace the same.<\/p>\n
(b) In case the Building throughout shall be so injured or
\ndamaged, whether by fire or otherwise (though the Premises may not be
\naffected, or if affected, can be repaired within said 150 days) that
\nLandlord, within sixty (60) days after the happening of such injury, shall
\ndecide not to reconstruct or rebuild the Building, then notwithstanding
\nanything contained herein to the contrary, upon notice in writing to that
\neffect given by Landlord to Tenant within said sixty (60) days, Tenant shall
\npay the rent, properly apportioned up to date of such casualty, this Lease
\nshall terminate from the date of delivery of said written notice, and both
\nparties hereto shall be released and discharged from all further obligations
\nhereunder (except those obligations which expressly survive termination of
\nthe Lease term). A total destruction of the Building shall automatically
\nterminate this Lease.<\/p>\n
16. CONDEMNATION:<\/p>\n
(a) If the whole of the Premises or so much thereof as to
\nrender the balance unusable by Tenant for the proper conduct of its business (in
\nthe reasonable opinion of Tenant) shall be taken under power of eminent domain
\nor transferred under threat thereof, then this Lease, at the option of either
\nLandlord or Tenant exercised by either party giving notice to the other of such
\nelection within thirty (30) days after such conveyance or taking possession,
\nwhichever is earlier, shall forthwith cease and terminate and the rent shall be
\nduly apportioned as of the date of such taking or <\/p>\n
conveyance. No award for any partial or entire taking of the real property
\nand its fixtures which constitute part of the real property under the terms
\nof this Lease shall be apportioned and Tenant hereby assigns to Landlord any
\naward which may be made in such taking or condemnation, together with any and
\nall rights of Tenant now or hereafter arising in or to the same or any part
\nthereof. Notwithstanding the foregoing, Tenant shall be entitled to seek,
\ndirectly from the condemning authority, an award for its removable trade
\nfixtures, equipment and personal property and relocation expenses, if any, to
\nthe extent Landlord’s award is not diminished. In the event of a partial
\ntaking which does not result in a termination of this Lease, Base Rent and
\nAdditional Rent and other obligations hereunder shall be reduced in
\nproportion to the reduction in the size of the Premises so taken and this
\nLease shall be modified accordingly. Promptly after obtaining knowledge
\nthereof, Landlord or Tenant, as the case may be, shall notify the other of
\nany pending or threatened condemnation or taking affecting the Premises or
\nthe Building.<\/p>\n
(b) If all or any portion of the Premises shall be
\ncondemned or taken for governmental occupancy for a limited period, this
\nLease shall not terminate and Landlord shall be entitled to receive the
\nentire amount of any such award or payment thereof as damages, rent or
\notherwise. Tenant hereby assigns to Landlord any award which may be made in
\nsuch temporary taking, together with any and all rights of Tenant now or
\nhereafter arising in or to the same or any part thereof. Tenant shall be
\nentitled to receive an abatement of Base Rent and Additional Rent and other
\nrental obligations hereunder during the period of time possession is taken
\nand in proportion to the reduction in the size of the Premises so taken.<\/p>\n
17. ASSIGNMENT AND SUBLETTING:<\/p>\n
(a) Except as expressly provided in this Paragraph 17,
\nTenant shall not, voluntarity, involuntarily or otherwise, sublet all or any
\nportion of the Premises or assign all or any portion of Tenant’s rights under
\nthis Lease or permit any part of the Premises to be used or occupied by any
\npersons other than Tenant and its employees, nor shall Tenant permit any part
\nof the Premises to be used or occupied by any licensee or concessionaire or
\npermit any persons other than Tenant, its employees and invitees, to be upon
\nthe Premises. Tenant shall not voluntarily, by operation of law, or
\notherwise, assign, transfer or encumber this Lease or any interest herein nor
\nsublet or part with possession of all or any part of the Premises (any and
\nall of which shall hereinafter be referred to as “Transfer”) without
\nLandlord’s prior written consent, which consent shall not be unreasonably
\nwithheld or delayed.<\/p>\n
Landlord shall be under no obligation to consent to any sublease,
\ntransfer or assignment if: (i) Tenant is then in default of any term or
\ncondition of this Lease or (ii) any event has occurred which, with the giving
\nof notice, the passage of time, or both would constitute a default hereunder.<\/p>\n
No such sublease or assignment shall relieve Tenant of its
\nobligations hereunder, except as expressly provided for in this Paragraph 17.<\/p>\n
Any Transfer without the prior written consent of Landlord shall
\nconstitute a <\/p>\n
default hereunder and shall be void AB INITIO and shall confer no rights upon
\nany third party, notwithstanding Landlord’s acceptance of rent payments from
\nany purported transferee.<\/p>\n
Tenant may, without Landlord’s consent being first required, assign
\nthis Lease or sublet all or any portion of the Premises to a wholly owned
\nsubsidiary of Tenant, to a corporate parent of Tenant owning a majority of
\nthe issued and outstanding common stock of Tenant, or to a corporation the
\nmajority of whose stock is held by a corporate parent of Tenant. No such
\nassignment or subletting shall relieve Tenant of its obligations hereunder.<\/p>\n
Landlord’s consent to any requested assignment of this Lease or
\nsubletting of all or any part of the Premises (other than those expressly
\npermitted in the preceding paragraph) shall be subject to the following
\nconditions:<\/p>\n
(1) such consent and resulting subletting or
\nassignment shall not relieve Tenant of its primary obligations hereunder,
\nincluding the obligation for payment of all rents due hereunder;<\/p>\n
(2) Should Tenant default of the payment of Rent
\nor Additional Rent hereunder, Landlord, at its option and from time to time,
\nmay collect the rent from the subtenant or assignee, and apply the net amount
\ncollected to the rent herein reserved, but no such collection shall be deemed
\nan acceptance by Landlord of the subtenant or assignee as the tenant hereof,
\nor a release of Tenant from further performance of covenants on the part of
\nTenant herein contained;<\/p>\n
(3) any such subtenant or assignee shall be a
\ncompany or other entity of good repute, engaged in a business or profession
\ncompatible with and in keeping with the then standards of the Building and
\nfinancially capable of performing its obligations with respect to the
\nPremises; and<\/p>\n
(4) such subtenant or assignee shall assume and
\nagree to perform all of Tenant’s obligations under this Lease insofar as they
\npertain to the space so sublet or assigned.<\/p>\n
(5) Tenant is not in default of any term or
\ncondition of this Lease at the time it requests Landlord’s consent.<\/p>\n
(b) In the event of any Transfer of this Lease or all or
\nany part of the Premises by Tenant without Landlord’s consent (other than
\nthose expressly permitted above), Landlord in addition to any rights
\ncontained herein, shall have the following options at its reasonable
\ndiscretion:<\/p>\n
(1) To collect and receive the excess of rent due
\nto Tenant from such sublessee or assignee over the Base Rent due hereunder;<\/p>\n
(2) To give Tenant written notice of Landlord’s
\nintention to terminate this Lease on the date such notice is given or on any
\nlater date specified therein, whereupon, on the date specified in such
\nnotice, Tenant’s right to possession <\/p>\n
of the Premises shall cease and this Lease shall thereupon be terminated,
\nexcept as to any uncompleted obligations of Tenant; or<\/p>\n
(3) To re-enter and take possession of the
\nPremises or the part thereof subject to such Transfer, and to enforce all
\nrights of Tenant, and receive and collect all rents and other payments due to
\nTenant, in accordance with such sublet or assignment of the Premises, or any
\npart thereof, as if Landlord was the sublettor or assignor, and to do
\nwhatever Tenant is permitted to do pursuant to the terms of such sublease or
\nassignment.<\/p>\n
(c) The sale of all or a majority of the stock of Tenant,
\nor the sale of all or substantially all of the assets of Tenant shall
\nconstitute a Transfer for purposes of this Lease, unless such sale is to a
\n“Permitted Transferee.” A Permitted Transferee is any entity that (i) has a
\ntangible net worth of not less that $15,000,000, (ii) has cash or cash
\nequivalents of not less than $5,000,000, (iii) whose total liabilities to
\ntangible net worth do not exceed 1\/5 to 1, and (iv) agrees in writing to
\nhonor each of the provisions of this Lease. Without limiting the generality
\nof the foregoing and notwithstanding any other provisions of this Lease, no
\nconsent shall be required for, and no default shall occur as a result of: (i)
\nthe transfer of all or more than a majority of the capital stock of Tenant to
\nany Permitted Transferee, or the transfer of all or substantially all of the
\nassets of Tenant to any Permitted Transferee, or (ii) the assignment of this
\nLease to any Permitted Transferee who becomes the holder of all or more than
\na majority of the capital stock of Tenant or all or substantially all of the
\nassets of Tenant.<\/p>\n
(d) At the time of making a request for Landlord’s consent
\nto a Transfer and not less than thirty (30) days prior to the proposed
\neffective date thereof, Tenant shall provide to Landlord such information as
\nLandlord, its accountants and attorneys, shall reasonably require with
\nrespect to such proposed Transfer, including but not limited to name and
\naddress of the proposed transferee, description of business operations,
\nfinancial information and certificate of corporate authority and good
\nstanding or partnership certificate, as applicable.<\/p>\n
(e) Consent of Landlord to a Transfer shall not relieve
\nTenant from seeking consent to any subsequent Transfers.<\/p>\n
(f) Subletting or assignments of a sublease by subtenants
\nshall not be permitted under any circumstances. Further, no option to renew
\nor extend the term of this Lease or to lease additional space, if any, shall
\nbe exercisable by any subtenant. If Tenant obtains Landlord’s consent to an
\nassigment of this Lease, the assignee shall be entitled to sublease and
\nfurther assign this Lease and to exercise the Tenant’s rights to renew or
\nextend the term of this Lease or to lease additional space, all as provided
\nherein and subject to the terms and conditions as herein prescribed.<\/p>\n
(g) All subleases or assignments shall be in writing and a
\ncopy thereof provided to Landlord within ten (10) days of its effective date.
\nAll subleases shall further contain an express provision that in the event of
\nany default by Tenant in the payment of rent or additional rent due hereunder
\nand upon notice thereof to the Tenant and subtenant from Landlord, all
\nrentals payable by the subtenant shall be paid directly to Landlord, for the
\nTenant’s account, until subsequent notice from Landlord that such <\/p>\n
default has been cured. Notwithstanding the foregoing, receipt by Landlord of
\nrent directly from the subtenant shall not be considered a waiver of the
\ndefault on the part of Tenant, nor an acceptance of such subtenant.<\/p>\n
18. ESTOPPEL CERTIFICATE: Landlord and Tenant agree that, at any
\ntime and from time to time, on or before five (5) days after written request
\nby the other party, to execute, acknowledge and deliver to the requesting
\nparty and the requesting party’s lender or purchaser an estoppel certificate
\ncertifying (to the extent it believes the same to be true) that this Lease is
\nunmodified and in full force and effect (or if there have been modifications,
\nthat the same is in full force and effect as modified, and stating the
\nmodifications), that there have been no defaults thereunder by Landlord or
\nTenant (or if there have been defaults, setting forth the nature thereof),
\nthe date to which the rent and other charges have been paid, if any, that
\nTenant claims no present charge, lien, claim or offset against rent, the rent
\nis not prepaid for more than one month in advance and such other matters as
\nmay be reasonably required by the requesting party, its lender or mortgagee,
\nor any potential purchaser of the Building or Tenant’s leasehold estate, it
\nbeing intended that any such statement delivered pursuant to this Paragraph
\nmay be relied upon by any prospective purchaser of all or any portion of
\nLandlord’s interest herein, or a holder of any mortgage or deed of trust
\nencumbering any portion of the Building Complex or the leasehold estate of
\nTenant. Landlord’s or Tenant’s failure or refusal to deliver such statement
\nwithin such time shall be a default under this Lease. Notwithstanding the
\nforegoing, in the event that Tenant does not execute the statement required
\nby this Paragraph within 10 business days of written request, then, so long
\nas such failure or delay is not due to Tenant’s refusal to include additional
\nmatters that are not reasonable, or the requesting party’s refusal to permit
\ndisclosure by Tenant of exceptions to such statement, Tenant hereby grants to
\nLandlord a power of attorney coupled with an interest to act as Tenant’s
\nattorney in fact for the purpose of executing such statement or statements
\nrequired by this Paragraph. Such power of attorney shall not grant Landlord
\nthe right to execute a statement that includes any matters that are not
\nexpressly covered in this Paragraph or that does not include any exceptions
\nthat may have been raised by Tenant or of which Landlord is aware.<\/p>\n
19. DEFAULT:<\/p>\n
(a) The following events (herein referred to as an “event
\nof default”) shall constitute a default by Tenant hereunder;<\/p>\n
(1) Tenant shall fail to pay when due any
\ninstallment of Base Rent, Additional Rent or any other amounts payable
\nhereunder;<\/p>\n
(2) This Lease or the estate of Tenant hereunder
\nshall be transferred to or shall pass to or devolve upon any other person or
\nparty in violation of the provisions of this Lease;<\/p>\n
(3) This Lease or the Premises or any part thereof
\nshall be taken upon execution or by other process of law directed against
\nTenant, or shall be taken upon or subject to any attachment at the instance
\nof any creditor or claimant against Tenant, and said attachment shall not be
\ndischarged or disposed of within forty-five (45) days after the levy thereof;<\/p>\n
(4) Tenant shall file a petition in bankruptcy or
\ninsolvency or for reorganization or arrangement under the bankruptcy laws of
\nthe United States or under any insolvency act of any state, or shall
\nvoluntarily take advantage of any such law or act by answer or otherwise, or
\nshall be dissolved or shall make an assignment for the benefit of creditors;<\/p>\n
(5) Involuntary proceedings under any such
\nbankruptcy law or insolvency act or for the dissolution of Tenant shall be
\ninstituted against Tenant, or a receiver or trustee shall be appointed of all
\nor substantially all of the property of Tenant, and such proceedings shall
\nnot be dismissed or such receivership or trusteeship vacated within thirty
\n(30) days after such institution or appointment;<\/p>\n
(6) Tenant shall abandon or permanently vacate the
\nPremises for ten (10) consecutive days while in default in the payent of rent
\nor additional rent due hereunder;<\/p>\n
(7) Tenant shall fail to perform any of the other
\nagreements, terms, covenants or conditions hereof on Tenant’s part to be
\nperformed, and such nonperformance shall continue for a period of fifteen
\n(15) days after notice thereof by Landlord to Tenant; provided, however, that
\nif Tenant cannot reasonably cure such nonperformance within fifteen (15)
\ndays, Tenant shall not be in default if it commences cure within said fifteen
\n(15) days and diligently pursues the same to completion, with completion
\noccurring in all instances within sixty (60) days;<\/p>\n
(8) Tenant shall fail to obtain a release of any
\nmechanic’s lien, as required herein;<\/p>\n
(9) All or any part of the personal property of
\nTenant is seized, subject to levy or attachment, or similarly repossessed or
\nremoved from the Premises and Tenant is consequently unable to conduct its
\nbusiness operations from the Premises.<\/p>\n
(b) Upon the occurrence of an event of default, Landlord
\nshall have the right, at its election, then or at any time thereafter and
\nwhile any such event of default shall continue, either:<\/p>\n
(1) To give Tenant written notice of Landlord’s
\nintention to terminate this Lease on the date such notice is given or on any
\nlater date specified herein, whereupon, on the date specified in such notice,
\nTenant’s right to possession of the Premises shall cease and this Lease shall
\nthereupon be terminated; PROVIDED, HOWEVER, all of Tenant’s obligations,
\nincluding, but not limited to, repayment of the Tenant Build-Out Allowance
\npaid by Landlord on behalf of Tenant pursuant to the terms of the Work Letter
\nAgreement executed by Landlord and Tenant in the form attached hereto as
\nEXHIBIT D, with interest at the rate of 18% per annum, compounded annually, <\/p>\n
computed from the date(s) of payment by Landlord (such sum with interest
\nhereinafter referred to as the “Allowance Recovery”) and the amount of Base
\nRent and other obligations reserved in this Lease for the balance of the term
\nhereof, shall immediately be accelerated and due and payable in the manner
\nand to the extent provided in paragraph 19(d), below.<\/p>\n
(2) To re-enter and take possession of the
\nPremises or any part thereof and repossess the same as Landlord’s former
\nestate and expel Tenant and those claiming through or under Tenant, and
\nremove the effects of both or either, using such force for such purposes as
\nmay be reasonably necessary, without being liable for prosecution thereof,
\nwithout being deemed guilty of any manner of trespass and without prejudice
\nto any remedies for arrears of rent or preceding breach of covenants or
\nconditions; PROVIDED, HOWEVER, any such action shall be in compliance with
\nthe provisions of Article 40 of Title 13, Colorado Revised Statutes. Should
\nLandlord elect to re-enter the Premises as provided in this Paragraph
\n19(b)(2) or should Landlord take possession pursuant to legal proceedings or
\npursuant to any notice provided for by law, Landlord may, from time to time,
\nwithout terminating this Lease, relet the Premises or any part thereof, in
\nLandlord’s or Tenant’s name, but for the account of Tenant, for such term or
\nterms (which may be greater or less than the period which would otherwise
\nhave constituted the balance of the term of this Lease) and on such
\nconditions and upon such other terms (which may include concessions of free
\nrent and alteration and repair of the Premises) as Landlord, in its
\ndiscretion, may determine, and Landlord may collect and receive the rents
\ntherefor. Landlord shall use commercially reasonable efforts to relet the
\nPremises or any part thereof. No such re-entry or taking possession of the
\nPremises by Landlord shall be construed as an election on Landlord’s part to
\nterminate this Lease unless a written notice of such intention be given to
\nTenant. No notice from Landlord hereunder or under a forcible entry and
\ndetainer statute or similar law shall constitute an election by Landlord to
\nterminate this Lease unless such notice specifically so states. Landlord
\nreserves the right following any such re-entry and\/or reletting, to exercise
\nits right to terminate this Lease by giving Tenant such written notice, in
\nwhich event, this Lease will terminate as specified in said notice.<\/p>\n
(c) In the event that Landlord does not elect to terminate
\nthis Lease as permitted in Paragraph 19(b)(1) hereof, but on the contrary,
\nelects to take possession as provided in Paragraph 19(b)(2), Tenant shall pay
\nto Landlord (i) the rent and other sums as herein provided, which would be
\npayable hereunder if such repossession had not occurred, plus (ii) the amount
\nof the Allowance Recovery, less (iii) the net proceeds, if any, of any
\nreletting of the Premises after deducting all Landlord’s expenses in
\nconnection with such reletting, including but without limitation, all
\nrepossession costs, brokerage commissions, legal expenses, reasonable
\nattorneys’ fees, expenses of employees, alteration and repair costs and
\nexpenses of preparation for such reletting. If, in connection with any
\nreletting, the new lease term extends beyond the existing term, or the
\npremises covered thereby include other premises not part of the Premises, a
\nfair apportionment of the rent received from such reletting and the expenses
\nincurred in connection therewith as provided aforesaid will be made in
\ndetermining the net proceeds from such reletting. Tenant shall pay such rent
\nand other sums to Landlord monthly on the days on which the rent would have
\nbeen payable hereunder if possession had not been retaken.<\/p>\n
(d) In the event this Lease is terminated pursuant to
\nParagraph 19(b)(1) hereof, Landlord shall be entitled to recover forthwith
\nagainst Tenant as damages for loss of the bargain and not as a penalty, an
\naggregate sum which, at the time of such termination of this Lease,
\nrepresents the excess, if any, of the aggregate of the rent and all other
\nsums payable by Tenant hereunder that would have accrued for the balance of
\nthe term over the aggregate rental value of the Premises (such rental value
\nto be computed on the basis of a tenant paying not only a rent to Landlord
\nfor the use and occupation of the Premises, but also such other charges as
\nare required to be paid by Tenant under the terms of this Lease) for the
\nbalance of such term, both discounted to present worth at the rate of eight
\npercent (8%) per annum, plus the amount of the Allowance Recovery.
\nAlternatively, at Landlord’s option, Tenant shall pay to Landlord upon demand
\nthe amount of the Allowance Recovery, and Tenant shall remain liable to
\nLandlord for damages in an amount equal to the rent and other sums arising
\nunder the Lease for the balance of the term had the Lease not been
\nterminated, less the net proceeds, if any, from any subsequent reletting,
\nafter deducting all expenses associated therewith and as enumerated above.
\nLandlord shall be entitled to receipt of such amounts from Tenant monthly on
\nthe days on which such sums would have otherwise been payable.<\/p>\n
(e) Suit or suits for the recovery of the amounts and
\ndamages set forth above may be brought by Landlord, from time to time, at
\nLandlord’s election and nothing herein shall be deemed to require Landlord to
\nawait the date whereon this Lease or the term hereof would have expired had
\nthere been no such default by Tenant or no such termination, as the case may
\nbe.<\/p>\n
(f) After an event of default by Tenant, Landlord may sue
\nfor or otherwise collect all rents, issues and profits payable under all
\nsubleases on the Premises including those past due and unpaid.<\/p>\n
(g) After an event of default by Tenant, Landlord may,
\nwithout terminating this Lease, enter upon the Premises, with force if
\nnecessary without being liable for prosecution of any claim for damages,
\nwithout being deemed guilty of any manner of trespass and without prejudice
\nto any other remedies, and do whatever Tenant is obligated to do under the
\nterms of this Lease. Tenant agrees to reimburse Landlord on demand for any
\nexpenses which Landlord may incur in effecting compliance with the Tenant’s
\nobligations under this Lease; further, Tenant agrees that Landlord shall not
\nbe liable for any damages resulting to Tenant from effecting compliance with
\nTenant’s obligations under this subparagraph caused by the negligence of
\nLandlord.<\/p>\n
(h) No failure by Landlord to insist upon the strict
\nperformance of any agreement, term, covenant or condition hereof or to
\nexercise any right or remedy consequent upon a breach thereof, and no
\nacceptance of full or partial rent during the continuance of any such breach,
\nshall constitute a waiver of any such breach of such agreement, term,
\ncovenant or condition. No agreement, term, covenant or condition hereof to be
\nperformed or complied with by Tenant, and no breach thereof, shall be waived,
\naltered or modified except by written instrument executed by Landlord. No
\nwaiver of any breach shall affect or alter this Lease, but each and every
\nagreement, term, covenant and condition hereof shall continue in full force
\nand effect with respect <\/p>\n
to any other then existing or subsequent breach thereof. Notwithstanding any
\nunilateral termination of this Lease, this Lease shall continue in force and
\neffect as to any provisions hereof which require observance or performance of
\nLandlord or Tenant subsequent to termination.<\/p>\n
(i) Nothing contained in this Paragraph shall limit or
\nprejudice the right of Landlord to prove and obtain as liquidated damages in
\nany bankruptcy, insolvency, receivership, reorganization or dissolution
\nproceeding, an amount equal to the maximum allowed by any statute or rule of
\nlaw governing such proceeding and in effect at the time when such damages are
\nto be proved, whether or not such amount be greater, equal to or less than
\nthe amounts recoverable, either as damages or rent, referred to in any of the
\npreceding provisions of this Paragraph.<\/p>\n
(j) Any rents or other amounts owing to Landlord hereunder
\nwhich are not paid within ten (10) days of the date they are due, shall
\nthereafter bear interest from the due date at the rate of eighteen percent
\n(18%) per annum (“Interest Rate”) until paid. Similarly, any amounts paid by
\nLandlord to cure any default of Tenant or to perform any obligation of
\nTenant, shall, if not repaid by the Tenant within five (5) days of demand by
\nLandlord, thereafter bear interest from the date paid by Landlord at the
\nInterest Rate until paid. In addition to the foregoing, Tenant shall pay to
\nLandlord whenever any Base Rent, Additional Rent or any other sums due
\nhereunder remain unpaid more than ten (10) days after the due date thereof, a
\nlate charge equal to five percent (5%) of the amount due.<\/p>\n
(k) Each right and remedy provided for in this Lease shall
\nbe cumulative and shall be in addition to every other right or remedy
\nprovided for in this Lease now or hereafter existing at law or in equity or
\nof statute or otherwise, including, but not limited to, suits for injunctive
\nor declaratory relief and specific performance. The exercise or commencement
\nof the exercise by either party of any one or more of the rights or remedies
\nprovided for in this Lease now or hereafter existing at law or in equity or
\nby statute or otherwise shall not preclude the simultaneous or subsequent
\nexercise by said party of any or all other rights or remedies provided for in
\nthis Lease, or now or hereafter existing at law or in equity or by statute or
\notherwise. All costs incurred by either party in connection with collecting
\nany amounts and damages owing by the other party pursuant to the provisions
\nof this Lease or to enforce any provision of this Lease, including, by way of
\nexample, but not limitation, reasonable attorneys’ fees from the date any
\nsuch matter is turned over to an attorney, shall also be recoverable by the
\nprevailing party. Landlord and Tenant agree that any action or proceeding
\narising out of this Lease shall be heard by a court sitting without a jury
\nand thus hereby waive all rights to a trial by jury.<\/p>\n
20. COMPLETION OF PREMISES:<\/p>\n
(a) Landlord and Tenant have yet to agree on which of the
\nparties is to be responsible for construction of the tenant improvements to
\nthe Premises as more fully set forth in the work letter (“Work Letter”)
\nattached hereto and incorporated herein as EXHIBIT D.<\/p>\n
(1) Should Tenant be the Contracting Party, as
\ndefined in Exhibit D, the “Commencement Date” as used herein, and the
\nobligation of Tenant to <\/p>\n
commence the payment of rent and additional rent hereunder, shall be March 1,
\n2000, subject only to the deferral of such date by the number of days, if
\nany, which Landlord fails or refuses to approve plans, specifications,
\ncontractors, bonds, insurance coverages, or the like, beyond the number of
\nday alloted for such approvals in Exhibit D.<\/p>\n
(2) Should Landlord be the Contracting Party, as
\ndefined in Exhibit D, the “Commencement Date” as used herein, and the
\nobligation of Tenant to commence the payment of rent and additional rent
\nhereunder, shall be March 1, 2000, subject only to the deferral of such date
\nas a result of delays in construction of the tenant improvements that were
\nwithin Landlord’s control. Matters within Landlord’s control shall include
\ndelays caused by the contractor constructing such improvements, but shall not
\ninclude delays resulting from protracted negotiations of the terms of this
\nLease or delays caused by Tenant’s review of plans and specifications or in
\nnegotiating costs, or delays by the City of Boulder in issuing permits. If
\nthere are delays within Landlord’s control, the Commencement Date shall be
\ndeferred beyond March 1, 2000, by the number of days of delay caused by
\nLandlord.<\/p>\n
(b) Other than as set forth in the Work Letter, Landlord shall have
\nno obligation for the completion of the Premises, and Tenant shall accept the
\nPremises in its “as is” condition on the Commencement Date.<\/p>\n
(c) Subsequent to the Commencement Date, Landlord shall not have any
\nobligation for the repair or replacement of any portions of the interior of
\nthe Premises, including, but not limited to, carpeting, draperies, window
\ncoverings, wall coverings or painting, which are damaged or wear out during
\nthe term hereof, regardless of the cause therefor, except as may otherwise be
\nspecifically set forth in this Lease.<\/p>\n
(d) If Landlord is the Contracting Party, and if Tenant wishes to
\ncomplete improvements to the interior of the Premises prior to the
\nCommencement Date, Tenant may do so, at Tenant’s sole risk and with no
\nobligation to pay rent provided that (i) Tenant has delivered to Landlord
\nwritten evidence that Tenant’s insurance obligations under Paragraph 14
\nhereof are then met, (ii) such entry and work do not unreasonably interfere
\nin any way with the performance of Landlord’s work or other workers in and
\nabout the Building, and (iii) such entry and work comply in all respects with
\nthe provisions of this Lease. At any time during such period of early entry,
\nif Landlord notifies Tenant that Tenant’s entry or work is interfering with
\nor delaying the performance of work to be performed by Landlord or other
\nworkers in and about the Building, or causing any disruption whatsoever,
\nTenant shall forthwith discontinue any further work and shall vacate the
\nPremises, and shall cause its workmen or contractors to remove therefrom, any
\nequipment, materials or installations which are the subject of Landlord’s
\nnotice.<\/p>\n
21. REMOVAL OF TENANT’S PROPERTY: All movable furniture and personal
\neffects of Tenant not removed from the Premises upon the vacation or
\nabandonment thereof coupled with non-payment of Base Rent or upon the
\ntermination of this Lease for any cause whatsoever shall conclusively be
\ndeemed to have been abandoned and may be appropriated, sold, stored,
\ndestroyed or otherwise disposed of by Landlord without notice to Tenant and
\nwithout obligation to account therefor, and Tenant shall reimburse Landlord
\nfor all expenses incurred in connection with the disposition of such property.<\/p>\n
22. HOLDING OVER: Should Tenant, with Landlord’s written consent,
\nhold over after the termination of this Lease and continue to pay rent,
\nTenant shall become a tenant from month to month only upon each and all of
\nthe terms herein provided as may be applicable to such month to month tenancy
\nand any such holding over shall not constitute an extension of this Lease.
\nDuring such holding over, Tenant shall pay monthly rent equal to the last
\nmonthly rental rate and the other monetary charges as provided herein. Such
\ntenancy shall continue until terminated by Landlord, as provided by law, or
\nuntil Tenant shall have given to Landlord at least thirty (30) days written
\nnotice prior to the last day of the calendar month intended as the date of
\ntermination of such month to month tenancy.<\/p>\n
23. PARKING AND COMMON AREAS: Tenant shall have the non-exclusive
\nuse of parking areas within the Building Complex. Landlord shall have the
\nright, without obligation, and from time to time, to change the number, size,
\nlocation, shape and arrangement of parking areas and other common areas,
\nrestrict parking of tenants or their guests to designated areas, designate
\nloading or handicap loading areas, and to change the level or grade of
\nparking; PROVIDED, HOWEVER, that Landlord shall at all times during the term
\nof this Lease maintain a parking ratio of 1 parking space per 400 square feet
\nof rentable floor space, considering all parking spaces available and all
\nrentable square footage in the Building Complex and in the complex at 2905,
\n2945, and 2995 Center Green Court South. Except as otherwise specifically
\nprovided herein, all access roads, courtyards, and other areas, facilities or
\nimprovements furnished by Landlord are for the general and nonexclusive use
\nin common of all tenants of the Building, and those persons invited upon the
\nland upon which the Building is situated and shall be subject to the
\nexclusive control and management of Landlord, and Landlord shall have the
\nright, without obligation to establish, modify and enforce such rules and
\nregulations which the Landlord may deem reasonable and\/or necessary. Unless
\nas otherwise provided, Tenant’s use of the parking area, as herein set forth,
\nshall be in common with other tenants of the Building and any other parties
\npermitted by Landlord to use the parking area. The parking rights herein
\ngranted shall not be deemed a lease but shall be construed as a license
\ngranted by Landlord to Tenant for the term of this Lease.<\/p>\n
24. SURRENDER AND NOTICE: Upon the expiration or earlier termination
\nof this Lease, Tenant shall promptly quit and surrender to Landlord the
\nPremises broom clean, in good order and condition, ordinary wear and tear and
\nloss by fire or other casualty excepted, and Tenant shall remove all of its
\nmovable furniture and other effects and such alterations, additions and
\nimprovements as Landlord shall require Tenant to remove pursuant to Paragraph
\n10 hereof. In the event Tenant fails to so vacate the Premises on a timely
\nbasis as required, Tenant shall be responsible to Landlord for all costs and
\ndamages, including, but not limited to, any amounts required to be paid to
\nthird parties who were to have occupied the Premises, incurred by Landlord as
\na result of such failure, plus interest thereon at the Interest Rate on all
\namounts not paid by Tenant within five (5) days of demand, until paid in full.<\/p>\n
25. ACCEPTANCE OF PREMISES BY TENANT: Taking possession of the
\nPremises by Tenant shall be conclusive evidence as against Tenant that the
\nPremises were in the condition agreed upon between Landlord and Tenant, and
\nacknowledgment of satisfactory completion of the fix-up work which Landlord
\nhas agreed in writing to <\/p>\n
perform, except as otherwise set forth herein.<\/p>\n
26. SUBORDINATION AND ATTORNMENT:<\/p>\n
(a) This Lease, and all rights of Tenant hereunder, are and
\nshall be subject and subordinate in all respects to all deeds of trust,
\nmortgages and building loan agreements, including leasehold mortgages and
\nbuilding loan agreements, which may now or hereafter affect the Building or
\nthe Building Complex, whether or not such deeds of trust or mortgages shall
\nalso cover other lands or buildings, to each and every advance made or
\nhereafter to be made under such deeds of trust or mortgages, and to all
\nrenewals, modifications, replacements and extensions of such deeds of trust
\nand mortgages. The provisions of this Paragraph shall be self-operative and
\nno further instrument of subordination shall be required. However, in
\nconfirmation of such subordination, Tenant shall promptly execute and deliver
\nto Landlord (or such other party so designated by Landlord) at Tenant’s own
\ncost and expense, within fifteen (15) days after request from Landlord an
\ninstrument, in recordable form if required, that Landlord or the holder of
\nany such deed of trust or mortgage or any of their respective successors in
\ninterest or assigns may request evidencing such subordination. Failure by
\nTenant to comply with the requirements of this Paragraph shall be a default
\nhereunder. Notwithstanding the foregoing, in the event that Tenant fails to
\nexecute such documents as may be required to confirm the subordination set
\nforth in this Paragraph, then, so long as such failure or delay is not due to
\nTenant’s refusal to execute docuuments that contain unreasonable terms or
\nconditions beyond what is required by this Paragraph, or the requesting
\nparty’s refusal to accept reasonable changes to such documents that will not
\ndiminish the subordination granted by this Paragraph, Tenant hereby grants to
\nLandlord a power of attorney coupled with an interest to act as Tenant’s
\nattorney in fact for the purposes of executing such documents. Such power of
\nattorney shall not grant Landlord the right to execute documets that grant
\nrights or impose obligations beyond the subordination covered in this
\nParagraph. The deeds of trust or mortgages to which this Lease is, at the
\ntime referred to, subject and subordinate are hereinafter sometimes called
\n“superior deeds of trust” or “superior mortgages”. The beneficiary of a
\nsuperior deed of trust or superior mortgage or their successors in interest
\nor assigns are hereinafter sometimes collectively referred to as a “superior
\nparty”. The subordination provided by this Section 26 shall be subject to the
\nprovision that, and any subordination entered into by Tenant after the date
\nof this Lease must contain a non-disturbance agreement in the form then being
\nused by such superior party for such purposes, providing that, in any case,
\nTenant, notwithstanding such subordination or a default by Landlord, shall be
\nentitled to remain in possession of the Premises in accordance with the terms
\nof this Lease for so long as Tenant shall not be in default of any term,
\ncondition or covenant of this Lease. Further, Tenant shall attorn to such
\nsuperior party.<\/p>\n
(b) Tenant shall take no steps to terminate this Lease,
\nwithout giving written notice to such superior party, and a reasonable
\nopportunity to cure (without such superior party being obligated to cure),
\nany default on the part of Landlord under this Lease, provided Tenant shall
\nbe obliged to notify only such superior parties of which Tenant has actual
\nknowledge by virtue of a prior written communication from Landlord or such
\nsuperior party.<\/p>\n
(c) If, in connection with the procurement, continuation or
\nrenewal of any financing for which the Building or the Building Complex
\nrepresents collateral in whole or in part, a lender shall request reasonable
\nmodifications of this Lease as a condition of such financing, Tenant will not
\nunreasonably withhold its consent thereto provided that such modifications do
\nnot increase the obligations of Tenant under this Lease or adversely affect
\nany rights of Tenant or decrease the obligations of Landlord under this Lease.<\/p>\n
27. PAYMENTS AFTER TERMINATION: No payments of money by Tenant to
\nLandlord after the termination of this Lease, in any manner, or after giving
\nof any notice (other than a demand for payment of money) by Landlord to
\nTenant, shall reinstate, continue or extend the term of this Lease or affect
\nany notice given to Tenant prior to the payment of such money, it being
\nagreed that after the service of notice of the commencement of a suit or
\nother final judgment granting Landlord possession of the Premises, Landlord
\nmay receive and collect any sums of rent due, or any other sums of money due
\nunder the terms of this Lease or otherwise exercise its rights and remedies
\nhereunder. The payment of such sums of money, whether as rent or otherwise,
\nshall not waive said notice or in any manner affect any pending suit or
\njudgment theretofore obtained.<\/p>\n
28. AUTHORITIES FOR ACTION AND NOTICE:<\/p>\n
(a) Except as otherwise provided herein, Landlord may, for
\nany matter pertaining to this Lease, act by and through its building manager
\nor any other person designated in writing from time to time.<\/p>\n
(b) All notices or demands required or permitted to be
\ngiven to Landlord hereunder shall be in writing, and shall be deemed duly
\nserved when received, if hand delivered, or five (5) days after deposited in
\nthe United States mail, with proper postage prepaid, certified or registered,
\nreturn receipt requested, addressed to Landlord in care of Hast & Company,
\n525 Canyon Boulevard, Boulder, Colorado 80302, with a copy to Joel C. Davis,
\nDietze and Davis, P.C., 2060 Broadway, Suite 400, Boulder, Colorado 80302.
\nAll notices or demands required to be given to Tenant hereunder shall be in
\nwriting, and shall be deemed duly served when received, if hand delivered, or
\nfive (5) days after deposited in the United States mail, with proper postage
\nprepaid, certified or registered, return receipt requested, addressed to
\nTenant as follows:<\/p>\n
Gilead Sciences, Inc.
\n 333 Lakeside Drive
\n Foster City, CA 94404
\n ATTN: General Counsel<\/p>\n
Either party shall have the right to designate in writing,
\nserved as above provided, a different address to which notice is to be
\nprovided. The foregoing shall in no event prohibit notice from being given as
\nprovided in Rule 4 of the Colorado Rules of Civil Procedure, as the same may
\nbe amended from time to time.<\/p>\n
29. LIABILITY OF LANDLORD: Landlord’s liability under this Lease
\nshall be limited to <\/p>\n
Landlord’s estate and interest in the Building (or to the proceeds thereof)
\nand no other property or other assets of Landlord shall be subject to levy,
\nexecution or other enforcement procedure for the satisfaction of Tenant’s
\nremedies under or with respect to this Lease, the relationship of Landlord
\nand Tenant hereunder or Tenant’s use and occupancy of the Premises. Nothing
\ncontained in this Paragraph shall be construed to permit Tenant to offset
\nagainst rents due a successor landlord, a judgment (or other judicial
\nprocess) requiring the payment of money by reason of any default of a prior
\nlandlord, except as otherwise specifically set forth herein.<\/p>\n
30. BROKERAGE: Landlord and Tenant represent and warrant to each
\nother that they have dealt only with CRESA Partners and Key, Whiteside & Hart
\nand Hast and Company (“Brokers”) in the negotiation of this Lease. Landlord
\nshall make payment of the brokerage fee due to the Brokers pursuant to and in
\naccordance with Landlord’s separate agreement with Keys, Whiteside & Hart and
\nHast and Company. In the event that any of Landlord’s or Tenant’s
\nrepresentations and warranties made in this Paragraph 30 is untrue at any
\ntime in any respect, each party hereby agrees to indemnify and hold the the
\nother harmless of and from any and all loss, costs, damages or expenses
\n(including, without limitation, all reasonable attorneys’ fees and
\ndisbursements) by reason of any claim of or liability to any other broker or
\nperson claiming through the representing party arising out of or in
\nconnection with the negotiation, execution and delivery of this Lease.
\nAdditionally, Tenant acknowledges and agrees that Landlord shall have no
\nobligation for payment of any brokerage fee or similar compensation to any
\nperson with whom Tenant has dealt or may in the future deal with respect to
\nleasing of any additional or expansion space in the Building or renewals or
\nextensions of this Lease, except as may be provided by Landlord’s separate
\nwritten agreement. In the event any claim shall be made against either party
\nby any other broker who shall claim to have negotiated this Lease on behalf
\nof the other party or to have introduced the other party to the Building or
\nto the other party, the party who allegedly engaged such broker shall be
\nliable for payment of all reasonable attorneys’ fees, costs and expenses
\nincurred by the other party in defending against the same, and in the event
\nsuch broker shall be successful in any such action, the party who allegedly
\nengaged such broker shall, in addition, make payment to such broker.<\/p>\n
31. TAXES:<\/p>\n
(a) Tenant shall be liable for and shall pay at least ten
\n(10) days before delinquency and Tenant hereby agrees to indemnify and hold
\nLandlord harmless from and against any liability in connection with, all
\ntaxes levied against any personal property, fixtures, machinery, equipment,
\napparatus, systems and appurtenances placed by or on behalf of Tenant in or
\nabout or utilized by Tenant in, upon or in connection with the Premises
\n(“Equipment Taxes”). If any Equipment Taxes are levied against Landlord or
\nLandlord’s property or if the assessed value of Landlord’s property is
\nincreased by the inclusion therein of a value placed upon such personal
\nproperty, fixtures, machinery equipment, apparatus, systems or appurtenances
\nof Tenant, and if Landlord, after written notice to Tenant, pays the
\nEquipment Taxes or taxes based upon such an increased assessment (which
\nLandlord shall have the right to do regardless of the validity of such levy,
\nbut under proper protest if requested by Tenant prior to such payment and if
\npayment under protest is permissible), Tenant shall pay to Landlord upon
\ndemand, as Additional Rent hereunder, the taxes so levied against <\/p>\n
Landlord or the proportion of such taxes resulting from such increase in the
\nassessment; provided, however, that in any such event, Tenant shall have the
\nright, on behalf of Landlord and with Landlord’s full cooperation, but at no
\ncost to Landlord, to bring suit in any court of competent jurisdiction to
\nrecover the amount of any such tax so paid under protest, and any amount so
\nrecovered shall belong to Tenant (provided Tenant has previously paid such
\namount to Landlord). Notwithstanding the foregoing to the contrary, Tenant
\nshall cooperate with Landlord to the extent reasonably necessary to cause the
\nfixtures, furnishings, equipment and other personal property to be assessed
\nand billed separately from the real property of which the Premises form a
\npart, and Landlord shall use reasonable efforts to treat all other Tenants on
\nthe same basis.<\/p>\n
(b) Tenant shall pay to Landlord, as Additional Rent, any
\nexcise, sales, privilege or other tax, assessment or other charge (other than
\nincome or franchise taxes) imposed, assessed or levied by any governmental or
\nquasi-governmental authority or agency upon Landlord on account of this
\nLease, the rent or other payments made by Tenant hereunder, any other benefit
\nreceived by Landlord hereunder, Landlord’s business as a lessor hereunder, or
\nother in respect of or as a result of the agreement or relationship of
\nLandlord and Tenant hereunder.<\/p>\n
32. RIGHTS RESERVED TO LANDLORD:<\/p>\n
(a) Landlord shall have the following rights without
\nliability to Tenant for damage or injury to property, person or business (all
\nclaims for damage being hereby waived and released), and without effecting an
\neviction or disturbance of Tenant’s use or possession of the Premises or
\ngiving rise to any claim for setoffs or abatement of rent:<\/p>\n
(1) To enter the Premises as more fully provided
\nin this Lease.<\/p>\n
(2) To install and maintain signs on the exterior
\nof the Building in accordance with the terms of this Lease.<\/p>\n
(3) To decorate, remodel, repair, alter or
\notherwise prepare the Premises for reoccupancy during the last six (6) months
\nof the term hereof if, during or prior to such time, Tenant has vacated the
\nPremises, or at any time after Tenant abandons the Premises.<\/p>\n
(4) To have access to all mail chutes according to
\nthe rules of the United States Postal Service.<\/p>\n
(5) To do or permit to be done any work in or
\nabout the exterior of the Building or any adjacent or nearby building, land,
\nstreet or alley.<\/p>\n
(6) To grant to anyone the exclusive right to
\nconduct any business or render any service in the Building, provided such
\nexclusive right shall not operate to interfere with Tenant’s quiet enjoyment
\nof the Premises as granted in this <\/p>\n
Lease.<\/p>\n
33. FORCE MAJEURE CLAUSE: Wherever there is provided in this Lease a
\ntime limitation for performance by Landlord or Tenant of any obligation
\nincluding, but not limited to, obligations related to construction, repair,
\nmaintenance or service, but excluding the payment by Tenant of any regularly
\nscheduled installment of rent or additional rent payable hereunder, the time
\nprovided for shall be extended for as long as and to the extent that delay in
\ncompliance with such limitation is due to an act of God, governmental control
\nor other factors beyond the reasonable control of the party to so perform.<\/p>\n
34. SIGNAGE:<\/p>\n
(a) No sign, advertisement or notice shall be inscribed,
\npainted or affixed on any part of the inside or outside of the Building
\nunless of such color, size and style and in such place upon or in the
\nBuilding as shall (i) comply with all applicable covenants, conditions, and
\nrestrictions applicable to the Building and the rules and regulations of any
\nlocal authority with jurisdiction over the Building, and (ii) be approved in
\nwriting by Landlord, which approval shall not be unreasonably withheld.
\nLandlord shall have the right to remove all nonpermitted signs without notice
\nto Tenant and at the expense of Tenant.<\/p>\n
35. ATTORNEYS’ FEES: In the event of any dispute hereunder, or any
\ndefault in the performance of any term or condition of this Lease, the
\nprevailing party shall be entitled to recover all costs and expenses
\nassociated therewith including reasonable attorneys’ fees.<\/p>\n
36. BANKRUPTCY OR INSOLVENCY: If the Tenant becomes a debtor under
\nChapter 7 of the United States Bankruptcy Code, or in the event that a
\npetition for reorganization or adjustment of debts is filed concerning the
\nTenant under Chapter 11 or Chapter 13 of the Bankruptcy Code, or a proceeding
\nfiled under Chapter 7 is transferred to Chapter 11 or 13, the Trustee or the
\nTenant, as Debtor-in-Possession, shall be deemed to have rejected this Lease.
\nNo election by the Trustee or Debtor-in-Possession to assume this Lease shall
\nbe effective unless each of the following conditions, which Landlord and
\nTenant hereby acknowledge to be commercially reasonable in the context of a
\nbankruptcy proceeding, has been satisfied, and the Landlord has so
\nacknowledged in writing:<\/p>\n
(a) The Trustee or Debtor-in-Possession has cured, or has
\nprovided the Landlord “adequate assurance” (as hereinafter defined) that from
\nthe date of such assumption, the Trustee or Debtor-in-Possession will
\npromptly cure all monetary and non-monetary defaults under this Lease.<\/p>\n
(b) The Trustee or Debtor-in-Possession has compensated, or
\nhas provided to the Landlord adequate assurance that within ten (10) days of
\nthe date of assumption, the Landlord will be compensated, for any pecuniary
\nloss incurred by the Landlord arising from default of the Tenant, the Trustee
\nor the Debtor-in-Possession as recited in the Landlord’s written statement of
\npecuniary loss sent to the Trustee or Debtor-in-Possession.<\/p>\n
(c) The Trustee or Debtor-in-Possession has provided the
\nLandlord with adequate assurance of future performance of each of the
\nTenant’s, the Trustee’s, or Debtor-in-Possession’s obligations under this
\nLease; provided, however, that:<\/p>\n
(1) The Trustee or Debtor-in-Possession shall also
\ndeposit with the Landlord, as security for the timely payment of rent and
\nother sums due hereunder, an amount equal to three months Base Rent,
\nAdditional Rent and other monetary charges accruing under this Lease; and<\/p>\n
(2) The obligations imposed upon the Trustee or
\nDebtor-in-Possession shall continue with respect to the Tenant or any
\nassignee of this Lease after the completion of the bankruptcy proceedings.<\/p>\n
(d) For purposes of this Paragraph, Landlord and Tenant
\nacknowledge that, in the context of the bankruptcy proceeding of the Tenant,
\n“adequate assurance” shall mean:<\/p>\n
(1) The Trustee or Debtor-in-Possession will
\ncontinue to have sufficient unencumbered assets after the payment of all
\nsecured obligations and administrative expenses to assure the Landlord that
\nthe Trustee or Debtor-in-Possession will have sufficient funds to fulfill all
\nof the obligations of Tenant under this Lease, or<\/p>\n
(2) The Bankruptcy Court shall have entered an
\norder segregating sufficient cash payable to the Landlord, and the Trustee or
\nDebtor-in-Possession shall have granted to the Landlord a valid and perfected
\nfirst lien and security interest or mortgage in property of the Tenant, the
\nTrustee or Debtor-in-Possession, acceptable as to value and kind to the
\nLandlord, in order to secure to the Landlord the obligation of the Tenant,
\nTrustee or Debtor-in-Possession to cure the monetary or non-monetary defaults
\nunder the Lease within the time period set forth above.<\/p>\n
(e) The following conditions shall apply to any assignment
\nof this Lease in Bankruptcy Proceedings:<\/p>\n
(1) If the Trustee or Debtor-in-Possession has
\nassumed this Lease and elects to assign the Lease to any other person, such
\ninterest or estate of Tenant in this Lease may be so assigned only if the
\nLandlord has acknowledged in writing that the intended assignee can provide
\nto the Landlord “adequate assurance of future performance” (as hereinafter
\ndefined) of all of the terms, covenants and conditions of this Lease to be
\nperformed by the Tenant.<\/p>\n
(2) For the purposes of this provision, Landlord
\nand Tenant acknowledge that, in the context of a bankruptcy proceeding,
\n“adequate assurance of future performance” shall mean that each of the
\nfollowing conditions has been satisfied or exceeded, and the Landlord has so
\nacknowledged in writing:<\/p>\n
A. The proposed assignee has submitted a
\ncurrent <\/p>\n
financial statement audited by a Certified Public Accountant which shows the
\nnet worth and working capital and amounts determined by Landlord to be
\nsufficient to assure the future performance by such assignee of all of
\nTenant’s obligations under this Lease, or, if such financial statements are
\ndeemed by the Landlord to be insufficient, that;<\/p>\n
B. The proposed assignee shall have
\nobtained guarantees in form and substance satisfactory to the Landlord from
\none or more persons who satisfy the Landlord’s standards of creditworthiness;
\nand<\/p>\n
C. The Landlord has obtained all consents
\nor waivers from any third party required under any lease, mortgage, financing
\narrangements or other agreement by which the Landlord is bound, in order to
\npermit the Landlord to consent to such assignment.<\/p>\n
37. MISCELLANEOUS:<\/p>\n
(a) The rules and regulations attached hereto as EXHIBIT E,
\nas well as such rules and regulations as may hereafter be adopted by Landlord
\nfor the safety, care and cleanliness of the Premises, the Building and the
\nBuilding Complex and the preservation of good order thereon, are hereby
\nexpressly made a part hereof, and Tenant agrees to obey all such rules and
\nregulations. The violation of any of such rules and regulations by Tenant
\nshall be deemed a breach of this Lease by Tenant affording Landlord all the
\nremedies set forth herein. Landlord shall not be responsible to Tenant for
\nthe nonperformance by any other tenant or occupant of the Building of any of
\nsaid rules and regulations.<\/p>\n
(b) The term “Landlord” as used in this Lease, so far as
\ncovenants or obligations on the part of Landlord are concerned, shall be
\nlimited to mean and include only the owner or owners of the Building at the
\ntime in question, and in the event of any transfer or transfers of the title
\nthereto, Landlord herein named (and in the case of any subsequent transfers
\nor conveyances, the then grantor) shall be automatically released from and
\nafter the date of such transfer or conveyance of all liability in respect to
\nthe performance of any covenants or obligations on the part of Landlord
\ncontained in this Lease thereafter to be performed and relating to events
\noccurring thereafter; provided that the transferee has expressly agreed in
\nwriting to assume all obligations of Landlord under this Lease; provided that
\nany funds in the hands of Landlord or the then grantor at the time of such
\ntransfer in which Tenant has an interest shall be turned over to the grantee,
\nand any amount then due and payable to Tenant by Landlord or the then grantor
\nunder any provisions of this Lease shall be paid to Tenant.<\/p>\n
(c) This Lease shall be construed as though the covenants
\nherein between Landlord and Tenant are independent and not dependent and Tenant
\nshall not be entitled to any setoff of the rent or other amounts owing hereunder
\nagainst Landlord, and Landlord shall not be entitled to exercise any of its
\nremedies hereunder, if Landlord or Tenant as the case may be, fails to perform
\nits obligations set forth herein, except as herein specifically set forth;
\nprovided, however, the foregoing shall in no way impair the right of either
\nparty to commence a separate action against the other party for any violation by
\na breaching party of the provisions hereof so long as notice is first given to
\nthe breaching party and any holder of a mortgage or deed of trust covering the
\nBuilding <\/p>\n
Complex or any portion thereof whose address Tenant has been notified in
\nwriting and so long as an opportunity has been granted to the breaching party
\nand such holder to correct such violation as provided in subparagraph (g)
\nhereof.<\/p>\n
(d) If any clause or provision of this Lease is illegal,
\ninvalid or unenforceable under present or future laws effective during the
\nterm of this Lease, then and in that event, it is the intention of the
\nparties hereto that the remainder of this Lease shall not be affected
\nthereby, and it is also the intention of the parties to this Lease that in
\nlieu of each clause or provision of this Lease that is illegal, invalid or
\nunenforceable, there shall be added as a part of this Lease a clause or
\nprovision as similar in terms to such illegal, invalid or unenforceable
\nclause or provision as may be possible and be legal, valid and enforceable,
\nprovided such addition does not increase or decrease the obligations of or
\nderogate from the rights or powers of either Landlord or Tenant.<\/p>\n
(e) The captions of each paragraph are added as a matter of
\nconvenience only and shall be considered of no effect in the construction of
\nany provision or provisions of this Lease.<\/p>\n
(f) Except as herein specifically set forth, all terms,
\nconditions and covenants to be observed and performed by the parties hereto
\nshall be applicable to and binding upon their respective heirs,
\nadministrators, executors, successors and assigns. The terms, conditions and
\ncovenants hereof shall also be considered to be covenants running with the
\nland.<\/p>\n
(g) Except as otherwise specifically provided herein, in
\nthe event either party shall fail to perform any of the agreements, terms,
\ncovenants or conditions hereof on its part to be performed (such party being
\nreferred to as the “Non-Performing Party”), and such nonperformance shall
\ncontinue for a period of thirty (30) days after written notice thereof from
\nthe other party (the “Notifying Party”) to the Non-Performing Party, or if
\nsuch performance cannot be reasonably had within such thirty (30) day period,
\nand the Non-Performing Party shall not in good faith have commenced such
\nperformance within such thirty (30) day period and proceed therewith to
\ncompletion, it shall be considered a default of the Non-Performing Party
\nunder this Lease. Notifying Party shall give written notice to the
\nNon-Performing Party in the matter herein set forth and shall afford the
\nNon-Performing Party a reasonable opportunity to cure any such default. In
\naddition, Tenant shall send notice of such default by certified or registered
\nmail, with proper postage prepaid, to the holder of any mortgages or deeds of
\ntrust covering the Building Complex or any portion thereof of whose address
\nTenant has been notified in writing and shall afford such holder a reasonable
\nopportunity to cure any alleged default on Landlord’s behalf. The provisions
\nof this subparagraph (g) shall not apply to any failure of Tenant to make,
\nwhen due, any regularly scheduled installment payment of Rent or Additional
\nRent due under this Lease.<\/p>\n
(h) If there is more than one entity or person which or who
\nare the Tenants or Landlords under this Lease, the obligations imposed upon
\nTenants or Landlords under this Lease shall be joint and several.<\/p>\n
(i) No act or thing done by Landlord or Landlord’s agent
\nduring the term hereof, including but not limited to any agreement to accept
\nsurrender of the <\/p>\n
Premises or to amend or modify this Lease, shall be deemed to be binding upon
\nLandlord unless such act or things shall be by an officer of Landlord or a
\nparty designated in writing by Landlord as so authorized to act. The delivery
\nof keys to Landlord, or Landlord’s agent, employees or officers shall not
\noperate as a termination of this Lease or a surrender of the Premises. No
\npayment by Tenant or receipt by Landlord of a lesser amount than the monthly
\nrent herein stipulated shall be deemed to be other than on account of the
\nearliest stipulated rent, nor shall any endorsement or statement on any check
\nor any letter accompanying any check or payment as rent be deemed an accord
\nand satisfaction and Landlord may accept such check or payment without
\nprejudice to Landlord’s right to recover the balance of such rent or pursue
\nany other remedy available to Landlord.<\/p>\n
(j) Landlord shall have the right to construct other
\nbuildings or improvements in any plaza or any other area designated by
\nLandlord for use by tenants or to change the location, character or make
\nalterations of or additions to any of said plazas or other areas provided the
\nsame does not breach Tenant’s right of quiet enjoyment of the Premises.
\nLandlord, during the entire term of this Lease, shall have the right to
\nchange the number and name of the Building or Building Complex at any time
\nwithout liability to Tenant.<\/p>\n
(k) Tenant acknowledges and agrees that it has not relied
\nupon any statements, representations, agreements or warranties, except such
\nas are expressed in this Lease.<\/p>\n
(l) Notwithstanding anything to the contrary contained
\nherein, Landlord’s liability under this Lease shall be limited to its
\ninterests in this Building.<\/p>\n
(m) Time is of the essence hereof.<\/p>\n
(n) Tenant and Landlord and the parties executing this
\nLease on behalf of each of them represent to each other that they are
\nauthorized to do so by requisite action of the board of directors or
\npartners, as the case may be, and agree upon request to deliver to each other
\na resolution or similar document to that effect.<\/p>\n
(o) This Lease shall be governed by and construed in
\naccordance with the laws of the State of Colorado.<\/p>\n
(p) This Lease, together with the exhibits attached hereto,
\ncontains the entire agreement of the parties and may not be amended or
\nmodified in any manner except by an instrument in writing signed by both
\nparties.<\/p>\n
(q) Tenant shall not use the name of the Building, the
\nBuilding Complex or the development in which the Building is situated as part
\nof its legal or trade name, nor for any purpose other than as an address for
\nthe business to be conducted by Tenant in the Premises.<\/p>\n
(r) The submission or delivery of this document for
\nexamination and review does not constitute an option, an offer to lease space
\nin the Building, or an agreement to lease. This document shall have no
\nbinding effect on the parties unless <\/p>\n
and until executed by both Landlord and Tenant.<\/p>\n
(s) Whenever a consent, permission, approval or
\nacknowledgment is required under this Lease or any Exhibit hereto, such
\nconsent, approval, permission or acknowlegment shall not be unreasonably
\nwithheld or delayed.<\/p>\n
38. HAZARDOUS MATERIALS:<\/p>\n
(a) Tenant shall (i) not cause or permit any Hazardous
\nMaterial to be brought upon, kept, or used in or about the Premises by
\nTenant, its agents, employees, contractors, licensees or invitees, without
\nprior written consent of Landlord (which Landlord shall not unreasonably
\nwithhold or delay as long as Tenant demonstrates to Landlord’s reasonable
\nsatisfaction that such Hazardous Material is necessary or useful to Tenant’s
\nbusiness and will be used, kept and stored in a manner that complies with all
\nlaws regulating any such Hazardous Materials so brought upon or used or kept
\nin or about the Premises). If Tenant breaches the obligations stated in the
\npreceding sentence, or if the presence of Hazardous Material on the Premises
\ncaused or permitted by Tenant results in contamination of the Premises or
\nBuilding Complex, or any part thereof, or if contamination of the Premises or
\nBuilding Complex by Hazardous Material otherwise occurs for which Tenant is
\nlegally liable to Landlord for damage resulting therefrom, then Tenant shall
\nindemnify, defend and hold Landlord, its agents, employees, legal
\nrepresentatives, successors and assigns, harmless from any and all claims,
\njudgments, damages, penalties, fines, costs, liabilities, or losses
\n(including, without limitation, diminution in value of the Premises and
\nbuilding Complex, damages for the loss or restriction on use of any rentable
\nor usable space or of any amenity of the Premises or Building Complex,
\ndamages arising from any adverse impact on marketing of space in the
\nBuilding, and sums paid in settlement of claims, reasonable attorneys’ fees,
\nconsultant fees and expert fees) which arise during or after the Lease term
\nas a result of such contamination. This indemnification of Landlord by Tenant
\nincludes, without limitation, such costs incurred in connection with any
\ninvestigation of site conditions or any cleanup, remedial, removal or
\nrestoration work required by any federal, state, or local governmental agency
\nor political subdivision because of Hazardous Material caused or permitted by
\nTenant to be present in or about the Building Complex or the soil or ground
\nwater on or under the Building Complex. Without limiting the foregoing, if
\nthe presence of any Hazardous Material on or about the Building Complex
\ncaused or permitted by Tenant results in any contamination of any portion
\nthereof, Tenant shall promptly take all actions at its sole expense as are
\nnecessary to return the Building Complex to the condition existing prior to
\nthe introduction of any such Hazardous Material, subject to obtaining
\nLandlord’s prior written consent to the actions to be taken by Tenant.
\nLandlord may properly require its consent to the selection of the contractors
\nand other experts involved in the inspection, testing and removal or
\nabatement activities, the scope of activities to be performed, the manner and
\nmethod for performance of such activities, and such other matters as may be
\nrequired or requested by Landlord for the safety of and continued use of the
\nBuilding Complex and all occupants thereof. The obligations and liabilities
\nof Tenant herein shall survive expiration or termination of this Lease.<\/p>\n
(b) “Hazardous Material,” as used in this Lease, shall be
\nconstrued in its broadest sense and shall include asbestos, other asbestotic
\nmaterial (which is currently or may be designated in the future as a
\nHazardous Material), any petroleum base products, pesticides, paints and
\nsolvents, polychlorinated biphenyl, lead, cyanide, DDT, acids, ammonium
\ncompounds and other chemical products (excluding commercially used cleaning
\nmaterials in ordinary quantities) and any substance or material if defined or
\ndesignated as hazardous or toxic substance, or other similar term, by any
\nfederal, state or local law, statute, regulation, or ordinance affecting the
\nBuilding Complex or Premises presently in effect or that may be promulgated
\nin the future, as such statutes, regulations and ordinances may be amended
\nfrom time to time.<\/p>\n
(c) In the event Tenant causes or permits Hazardous
\nMaterial to be brought upon, kept, or used in or about the Premise, with or
\nwithout Landlord’s consent, and Landlord has reason to believe that such
\nHazardous Materials are contaminating or may contaminate the Building Complex
\nor soils or water, or pose a threat to the health of other occupants of the
\nBuilding Complex, Landlord shall be entitled to have an environmental audit
\nperformed , the reasonable costs and expense of which shall be paid by
\nTenant. Except in the case of an obvious and immediate threat and danger,
\nLandlord’s “reason to believe,” as used above, shall be established by a
\nstudy conducted, at Landlord’s expense, by a reputable environmental
\nconsultant into the materials present, Tenant’s handling of the same, safety
\nmeasures in place, and compliance with all local state and federal laws,
\nrules and regulations regulating such materials and the use, transportation
\nand disposal of the same.<\/p>\n
39. OPTION TO EXTEND:<\/p>\n
Tenant shall have the right, if not in default at the time of
\nexercise of the option, to extend the original term of this Lease for two
\nrenewal terms of five (5) years each (each hereinafter called a “Renewal
\nTerm”). Each Renewal Term shall begin upon the expiration of the original
\nLease Term, or upon expiration of the first Renewal Term, as the case may be.
\nAll of the terms, provisions, and covenants of this Lease shall apply to each
\nRenewal Term; PROVIDED, HOWEVER, the Base Rent payable during each Renewal
\nTerm shall be at ninety-five percent (95%) of the fair market rental value
\ndetermined as hereinafter set forth, at the commencement of each Renewal
\nTerm. Tenant shall exercise such option by delivering to Landlord written
\nnotice of its election to renew no later than six (6) months prior to the
\nexpiration of the original Lease Term or the first Renewal Term. For the
\npurposes of this Lease, the term “Lease Term” shall mean the original Lease
\nTerm plus any applicable Renewal Term.<\/p>\n
Within fourteen (14) days after the Landlord’s receipt of the
\nTenant’s Notice of its election to renew, Landlord and Tenant shall meet and
\nshall seek to establish the fair market rental value of the Premises as of
\nthe last day of the original Lease term or the first Renewal Term, as the
\ncase may be. The term fair market rental value of the Premises shall mean the
\nrental rate that a ready, willing, and able tenant would agree to pay to
\nlease the Premises then under this Lease, from a nonaffiliated landlord after
\narm’s length negotiations, assuming that neither this Lease nor any other
\nlease of the Premises were in effect. If the parties are unable to agree upon
\na fair market rental <\/p>\n
value within such fourteen (14) day period, Tenant shall, within seven (7)
\ndays of the expiration of such fourteen (14) day period, appoint an
\nappraiser, who shall be an M.A.I. real estate professional with at least two
\n(2) years experience in commercial real estate appraisal in Boulder County to
\ndetermine such fair market value, and shall give prompt written notice to the
\nLandlord identifying such appraiser. Said appraiser shall, within fifteen
\n(15) days following his or her appointment, render his or her report to
\nTenant. If Tenant accepts the fair market rental value reflected by such
\nreport, Tenant shall immediately provide a copy thereof to Landlord. If
\nTenant does not accept the value of such appraisal, it shall have an
\nadditional ten (10) days to obtain a second appraisal and shall immediately
\nprovide a copy thereof to Landlord. If Landlord does not accept and agree to
\nthe fair market rental value of the Premises as reflected in Tenant’s
\nappraisal, it shall notify Tenant of that fact within five (5) days following
\nreceipt of the Tenants appraisal report, and Landlord shall, within seven (7)
\ndays following rejection of the Tenant’s appraisal report, appoint an
\nappraiser with the qualifications set forth above, who shall independently
\nrender his or her opinion of the fair market rental value of the Premises
\nwithin fifteen (15) days after appointment. Failure of either party to
\nappoint an appraiser and to cause such appraiser to agree in writing to be
\nbound by the provisions of this Section within the respective seven (7) day
\nperiod shall be deemed to be an irrevocable election to accept the
\ndetermination of the fair market value made by the appraiser of the other
\nparty. Should Tenant reject the fair market rental value determined by
\nLandlord’s appraiser, and if the parties are unable to reach agreement upon
\nthe fair market rental value based upon the values reflected by the two
\nappraisals in hand, within seven (7) days after receipt of the Landlord’s
\nappraisal, the Tenant’s appraiser and the Landlord’s appraiser shall appoint
\na third, similarly-qualified appraiser, and cause such appraiser to agree in
\nwriting to be bound by the provisions of this Section, and give Landlord and
\nTenant written notice of his or her identify. In the event the Appraisers are
\nunable to agree on the third appraiser within said fourteen (14) day period,
\nthe parties hereto shall request that the President of the Boulder County Bar
\nAssociation (or such other individual as to whom the parties may agree)
\nappoint the third appraiser within seven (7) days. The third appraiser shall,
\nwithin fourteen (14) days of his appointment, express to both Landlord and
\nTenant his or her determination of the fair market rental value of the
\nDemised Premises, and such determination shall be determinative of the
\nDemised Premises’ fair market rental value at such time, shall be final, and
\nshall govern for the purposes of this Section. If the appraisal procedure is
\nused, each party shall bear the cost of the appraiser appointed by it, and
\nthe parties shall share equally the cost of the third appraiser. If only one
\nappraiser shall be appointed, each party shall share equally the cost of such
\nappraiser. The three percent (3%) fixed annual increase in Base Rent provided
\nfor during the initial Lease Term shall apply during each Renewal Term.<\/p>\n
40. RIGHT OF OPPORTUNITY ON ADDITIONAL SPACE:<\/p>\n
Every instance of any equal or superior right of first opportunity
\ngiven by Landlord to any other tenant in the Building is listed on EXHIBIT F
\nto this Lease. Landlord will not grant any additional rights of opportunity
\nthat are equal or superior to Tenant’s rights, beyond those listed on Exhibit
\nF. Should Landlord become aware that additional space in the Building will
\nbecome available for lease, at any time during the term of this Lease,
\nLandlord agrees to provide to Tenant written notice of the availability of
\nsuch space, which notice shall identify the space, the date the same will be
\navailable <\/p>\n
for occupancy, and the rental rate which Landlord will offer such space for
\nrental to the public. Tenant shall have thirty (30) days following the
\neffective date of Landlord’s notice within which to notify Landlord that
\nTenant elects to rent such space, at the rental rate specified in Landlord’s
\nnotice, for a term concurrent with the Term of this Lease. Should Tenant fail
\nto give notice electing to rent such additional space within said thirty
\n(30)-day period, then Landlord may offer such space for lease to the public
\nand may lease the same at any time thereafter at a rental rate equal to or
\ngreater than 90% of the rental rate stated in the original notice from
\nLandlord to Tenant. If Landlord desires to lease such space at a rental rate
\nless than 90% of that stated in the notice to Tenant, Landlord shall once
\nagain offer the same to Tenant for a period of ten (10) days, at the lower
\nrental rate.<\/p>\n
IN WITNESS WHEREOF, Landlord and Tenant have executed this
\nLease the day and year first above written.<\/p>\n
LANDLORD:<\/p>\n
THW PARTNERS LIMITED PARTNERSHIP,
\n a Colorado limited partnership<\/p>\n
By: THW, Inc., a Florida corporation
\n General Partner<\/p>\n
By:
\n ———————————-
\n Name:
\n ——————————–
\n Title:
\n ——————————-<\/p>\n
TENANT:<\/p>\n
GILEAD SCIENCES, INC.,
\n a Delaware corporation<\/p>\n
By:
\n ———————————-
\n Name:
\n ——————————–
\n Title:
\n ——————————-<\/p>\n
EXHIBIT “B”<\/p>\n
LEGAL DESCRIPTION<\/p>\n
Lot 2,
\n Center Green South, Replat A
\n Boulder County, Colorado<\/p>\n
EXHIBIT “C”<\/p>\n
ESTOPPEL AND COMMENCEMENT DATE CERTIFICATE<\/p>\n
THIS ESTOPPEL AND COMMENCEMENT DATE CERTIFICATE (“Certificate”) is
\nexecuted this ____ day of _____________, _____, by THW Partners Limited
\nPartnership, A Colorado limited partnership (“Landlord”) and Gilead Sciences,
\nInc. (“Tenant”) with respect to and forming a part of that certain
\noffice\/light manufacturing building lease (“Lease”) dated _____________,
\n1999, for the premises commonly known as the second floor, 2900 Center Green
\nCourt South, Boulder, Colorado (“Premises”).<\/p>\n
WITNESSETH:<\/p>\n
WHEREAS, the parties desire to reaffirm and\/or amend and certify to
\ncertain provisions of the Lease; and<\/p>\n
WHEREAS, the parties desire that the matters set forth herein be
\nconclusive and binding on the parties.<\/p>\n
NOW, THEREFORE, for good and valuable consideration, the receipt and
\nsufficiency of which are hereby acknowledged, the parties agree as follows:<\/p>\n
1. The Lease Commencement Date is deemed and agreed to be
\n____________, 19__, and the Lease Termination Date is ____________, 19__,
\nunless sooner terminated, as provided therein.<\/p>\n
2. Tenant’s first installment of Base Rent in the amount of
\n______________ Dollars ($______) for the period of ________________ (is due
\non) (was paid on) ___________, 19__.<\/p>\n
3. By execution hereof, Tenant acknowledges and agrees that all
\nimprovements or other work required of Landlord has been satisfactorily
\nperformed and Tenant hereby accepts the Premises in full compliance with the
\nterms and conditions of the Lease.<\/p>\n
4. Except as may be amended herein, all terms and conditions of the
\nLease shall continue in full force and effect and are hereby republished and
\nreaffirmed in their entirety.<\/p>\n
5. This Certificate shall be binding upon and may be relied upon by
\nthe parties hereto and their respective legal representatives, successors,
\nand assigns.<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Certificate as of
\nthe day and year first above written.<\/p>\n
LANDLORD:<\/p>\n
THW PARTNERS LIMITED PARTNERSHIP,
\n a Colorado limited partnership<\/p>\n
By: THW, Inc., a Florida corporation
\n General Partner<\/p>\n
By:
\n ———————————-
\n Name:
\n ——————————–
\n Title:
\n ——————————-<\/p>\n
TENANT:<\/p>\n
GILEAD SCIENCES, INC.,
\n a Delaware corporation<\/p>\n
By:
\n ———————————-
\n Name:
\n ——————————–
\n Title:
\n ——————————-<\/p>\n
EXHIBIT “D”<\/p>\n
WORK LETTER AGREEMENT<\/p>\n
This Agreement supplements that certain lease (hereinafter referred
\nto as the “Lease”) dated and executed concurrently herewith by and between
\nTHW PARTNERS LIMITED PARTNERSHIP, a Colorado limited partnership (hereinafter
\nreferred to as “Landlord”) and GILEAD SCIENCES, INC. (hereinafter referred to
\nas “Tenant”) with the terms defined in the Lease to have the same definition
\nwhere used herein.<\/p>\n
WHEREAS, Landlord has leased to Tenant the second floor (the
\n“Premises”) in that certain building located at 2900 Center Green Court
\nSouth, Boulder, Colorado (“Building”);<\/p>\n
WHEREAS, Landlord and Tenant desire to set forth their
\nunderstandings and agreement as to processes and procedures for constructing
\ntenant improvements within the Premises (collectively, the “Work”).<\/p>\n
NOW, THEREFORE, in consideration of the mutual benefits to be
\nderived by Landlord and Tenant, and the covenants and conditions contained
\nherein and for such other good and valuable consideration, the receipt and
\nsufficiency of which are hereby acknowledged, the parties agree as follows:<\/p>\n
1. Within ten (10) days following the date this Lease has been
\nexecuted by both parties, Landlord and Tenant shall reach agreement as to
\nwhich party, that is Landlord or Tenant, will contract to have tenant finish
\nwork performed within the Premises. The party who will contract for such work
\nis hereinafter referred to as the “Contracting Party.”<\/p>\n
2. The Contracting Party shall cause all necessary drawings, plans,
\nand specifications for the Work to be drawn by arranging therefor with an
\narchitect or space planner selected by the Contracting Party. If Landlord is
\nnot the Contracting Party, the selection of an architect or space planner
\nshall first be approved by Landlord in Landlord’s reasonable discretion. The
\nfinal drawings, plans, and specifications shall be subject to Landlord’s
\nwritten approval (not unreasonably withheld or delayed), and shall be
\nsubmitted on or before February 29, 2000, in order to allow the Contracting
\nParty to substantially complete the Work on or before the Lease Commencement
\nDate. A copy of the Landlord-approved final drawings, plans, and
\nspecifications shall be attached hereto as EXHIBIT D-1. The Contracting Party
\nagrees to complete the construction of improvements within the Premises
\npursuant to the drawings, plans, and specifications approved by Landlord and
\na construction contract or construction contracts to be negotiated and
\nentered into by the Contracting Party, which contractor or contractors must
\nfirst be approved by Landlord in its sole discretion (collectively,
\n“Construction Contract”). A copy of the Construction Contract shall be
\nattached hereto as EXHIBIT D-2. Tenant agrees to accept, when completed, the
\ntenant improvements constructed in accordance with such drawings, plans, and
\nspecifications. Other than the Work described in the Construction Contract,
\nif Landlord is to be the Contracting Party, or other than the obligations of
\nLandlord to pay the Tenant Build-Out Allowance as set forth in Paragraph 2,
\nbelow, if Tenant is the Contracting Party, <\/p>\n
Landlord shall have no obligation for the completion of the Premises, and
\nTenant shall accept the Premises in their “as is” condition as of the Date of
\nthe Lease.<\/p>\n
2. Landlord shall pay in a timely fashion (as prescribed in the
\nConstruction Contract), either in reimbursement to Tenant if Tenant is the
\nContracting Party or directly to the contractor and\/or its subcontractors and
\nsuppliers if Landlord is the Contracting Party, all authorized and approved
\nconstruction draws submitted by the contractor, until Landlord has disbursed
\nthe sum of One Hundred Twelve Thousand Two Hundred Seventy Seven and no\/100
\nDollars ($112,277.00) with respect to Work completed in the Premises (the
\n“Tenant Build-Out Allowance”). No distribution of the Tenant Build-Out
\nAllowance shall be made unless each draw thereon is accompanied by lien
\nwaivers evidencing payment to all contractors, subcontractors and suppliers
\nby and through the preceding disbursement. All amounts in excess of the
\nTenant Build-Out Allowance required to pay for the Work shall be paid in a
\ntimely fashion (as prescribed in the Construction Contract) by Tenant as
\nauthorized and approved construction draws are submitted by the contractor.
\nTenant shall reimburse Landlord a proportionate amount of the Tenant
\nBuild-Out Allowance in the event Tenant defaults in the performance of any of
\nits obligations under the Lease as provided in Paragraph 19 of the Lease,
\nsuch proportionate amount to be determined by multiplying the Tenant
\nBuild-Out Allowance times a fraction, the numerator of which is the number of
\nmonths remaining during the initial Term of the Lease, and the denominator of
\nwhich is sixty (60) months.<\/p>\n
3. If Landlord is the Contracting Party, Tenant shall have the right
\nto negotiate with the contractor in an effort to achieve any and all
\nreasonable costs savings by changes to the drawings, plans, and
\nspecifications and\/or the Construction Contract. Once the Construction
\nContract has been finalized and executed by the Contracting Party, no change
\norders, as referred to in the Construction Contract, shall be made,
\nauthorized or valid unless and until the same are signed by both Landlord and
\nTenant.<\/p>\n
4. If Tenant is the Contracting Party, no delay in arriving at
\nsubstantial completion of the tenant improvements and no deferral of the
\nCommencement Date shall occur as a result of delays in finalizing plans,
\nspecifications, Construction Contract or completing construction, unless such
\ndelay is a “Landlord Delay” as hereafter defined. A “Landlord Delay” shall
\nmean the number of days in excess of five (5) business days taken by Landlord
\nto approve of or consent to an architect or space planner, final drawings,
\nplans and specification, the contractor or a change order, after the date a
\nrequest for approval or consent of the same is submitted to Landlord. In the
\nevent of a Landlord Delay, the Commencement Date shall be postponed by the
\nnumber of days involved in any such Landlord Delay.<\/p>\n
5. Landlord will allow Tenant to enter into the Premises for the
\npurpose of installing furniture, fixtures and equipment and other leasehold
\nimprovements, including, but not limited to wall and floor coverings,
\nmillwork and draperies, prior to the Lease Commencement Date, all subject,
\nhowever, to the terms and conditions of the Construction Contract; PROVIDED,
\nHOWEVER, that any such entry shall be at Tenant’s sole risk and provided
\nfurther that such entry and work do not unreasonably interfere in any way
\nwith the performance of Landlord’s work or other workers in and about the
\nBuilding. At any time during such period of early entry, if Landlord notifies
\nTenant that Tenant’s <\/p>\n
entry or work is interfering with or delaying the performance of work to be
\nperformed by Landlord or other workers in and about the Building, or causing
\nany disruption whatsoever, Tenant shall forthwith discontinue any further
\nwork and shall vacate the Premises, and shall cause its workmen or
\ncontractors to remove therefrom, any equipment, materials or installations
\nwhich are the subject of Landlord’s notice.<\/p>\n
6. The parties agree that the foregoing procedures are adopted for
\nthe convenience of the parties, and that nothing herein is intended to
\nchange, modify, amend or abrogate any of the terms, provisions, covenants and
\nconditions expressed in the Lease between the parties as heretofore amended.<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Work Letter
\nAgreement this __ day of November, 1999.<\/p>\n
LANDLORD:<\/p>\n
THW PARTNERS LIMITED PARTNERSHIP,
\n a Colorado limited partnership<\/p>\n
By: THW, Inc., a Florida corporation
\n General Partner<\/p>\n
By:
\n ———————————-
\n Name:
\n ——————————–
\n Title:
\n ——————————-<\/p>\n
TENANT:<\/p>\n
GILEAD SCIENCES, INC.,
\n a Delaware corporation<\/p>\n
By:
\n ———————————-
\n Name:
\n ———————————-
\n Title:
\n ———————————-<\/p>\n
EXHIBIT “E”<\/p>\n
RULES AND REGULATIONS<\/p>\n
Landlord and Tenant agree that the following Rules and Regulations
\nshall be and hereby are made a part of this Lease, and Tenant agrees that
\nTenant’s employees and agents, or any others permitted by Tenant to occupy or
\nenter the Premises or the Building Complex, will at all times abide by said
\nRules and Regulations:<\/p>\n
1. The sidewalks and entries of the Building shall not be obstructed
\nby Tenant, or Tenant’s agents or employees, or used for any purpose other
\nthan ingress to and egress from the Premises.<\/p>\n
2. Furniture, equipment or supplies will be moved in or out of the
\nBuilding only during such hours and in such manner as may be prescribed by
\nLandlord. Tenant shall cause its movers to use only the loading facilities
\ndesignated by Landlord. In the event Tenant’s movers damage any part of the
\nBuilding, Tenant shall forthwith pay to Landlord the amount required to
\nrepair said damage.<\/p>\n
3. No safe or articles, the weight of which may in the opinion of
\nLandlord constitute a hazard or damage to the Building or Building’s
\nequipment, shall be moved into the Premises.<\/p>\n
4. Safes and other equipment, the weight of which is not excessive,
\nshall be moved into, from and about the Building only during such hours and
\nin such manner as shall be prescribed by Landlord; and Landlord shall have
\nthe right to designate the location of such articles in the Premises.<\/p>\n
5. No sign, advertisement or notice shall be inscribed, painted or
\naffixed on any part of the inside or outside of the Building unless of such
\ncolor, size and style and in such place upon or in the Building, as shall be
\nfirst designated and approved in writing by Landlord, provided, however,
\nthere shall be no obligation or duty on Landlord to allow any sign,
\nadvertisement or notice to be inscribed, painted or affixed on any part of
\nthe inside or outside of the Building except as otherwise provided in the
\nLease. No furniture shall be placed in front of the Building or in any lobby
\nor corridor, without the prior written discretionary consent of Landlord.
\nLandlord shall have the right to remove all non-permitted signs and
\nfurniture, without notice to Tenant, and at the expense of Tenant.<\/p>\n
6. Tenant shall not do or permit anything to be done in the
\nPremises, or bring or keep anything therein which would in any way increase
\nthe rate of fire insurance on the Building or on property kept therein,
\nconstitute a nuisance or waste, or obstruct or interfere with the rights of
\nother tenants, or in any way injure or annoy them, or conflict with any of
\nthe rules or ordinances of the Fire Department or of the Department of Health
\nof the City and County where the Building is located.<\/p>\n
7. No animals (other than guide animals for the handicapped) shall
\nbe allowed in the Building. No person shall disturb the occupants of this or
\nadjoining buildings or premises by the use of any radio, sound equipment or
\nmusical instrument <\/p>\n
or by the making of loud or improper noises.<\/p>\n
8. No vehicles shall be permitted in the Building nor shall any
\nvehicles be permitted to obstruct the sidewalks or entrances of the Building.<\/p>\n
9. Tenant shall not allow anything to be placed on the outside of
\nthe Building, nor allow anything to be thrown by Tenant, Tenant’s agents or
\nemployees, out of the windows or doors of the Building. Tenant, except in
\ncase of fire or other emergency, shall not open any outside window.<\/p>\n
10. No additional lock or locks shall be placed by Tenant on any
\ndoor in the Building unless written consent of Landlord shall first have been
\nobtained. A reasonable number of keys to the toilet rooms if locked by
\nLandlord will be furnished by Landlord, and neither Tenant, Tenant’s agents
\nor employees shall have any duplicate keys made. At the termination of this
\ntenancy, Tenant shall promptly return to Landlord all keys to offices, toilet
\nrooms or vaults.<\/p>\n
11. No window shades, blinds, screens, draperies or other window
\ncoverings will be attached or detached by Tenant without Landlord’s prior
\nwritten consent. Tenant agrees to abide by Landlord’s rules with respect to
\nmaintaining uniform curtains, draperies and\/or Awnings at all windows and
\nhallways.<\/p>\n
12. No awnings shall be placed over any window.<\/p>\n
13. If Tenant desires telegraphic, telephonic or other electric
\nconnections, Landlord or Landlord’s agents will direct the electricians as to
\nwhere and how the wires may be introduced and without such directions, no
\nboring or cutting for wires will be permitted. Any such installation and
\nconnection shall be made at Tenant’s expense.<\/p>\n
14. Tenant shall not install or operate any steam or gas engine or
\nboiler, or carry on any mechanical operation in the Premises without
\nLandlord’s prior consent. The use of oil, gas or inflammable liquids for
\nheating, lighting or any other purpose is expressly prohibited. Explosives or
\nother articles deemed extra hazardous shall not be brought into the Building
\nComplex.<\/p>\n
15. Any painting or decorating as may be agreed to be done by and at
\nthe expense of Landlord shall be done during regular weekday working hours.
\nShould Tenant desire such work on Saturdays, Sundays, holidays or outside of
\nregular working hours, Tenant shall pay for the extra cost thereof, if any
\n(i.e. the difference in the cost of such work if done on an evening, weeked
\nor holiday, versus the cost of the work if done during regular weekday
\nworking hours.<\/p>\n
16. Except as permitted by Landlord, and except for normal office
\ndecorating, Tenant shall not mark upon, paint signs upon, cut, drill into,
\ndrive nails or screws into, or in any way deface the walls, ceilings,
\npartitions or floors of the Premises or of the Building, and any defacement,
\ndamage or injury caused by Tenant, Tenant’s agents or employees, shall be
\npaid for by Tenant.<\/p>\n
17. Landlord shall, after reasonable notice to Tenant and during
\nnormal<\/p>\n
working hours of Tenant, have the right, by Landlord’s representatives or
\nagents, to enter the Premises and show the same to persons wishing to lease
\nthem, and may, at any time within sixty (60) days preceding the termination
\nof Tenant’s Lease term, place upon the doors and windows of the Premises a
\n“For Rent” sign, which notice shall not be removed by Tenant.<\/p>\n
18. Tenant shall not obstruct or interfere with the rights of other
\ntenants of the Building Complex, or of persons having business in the
\nBuilding Complex, or in any way injure or annoy such tenants or persons.<\/p>\n
19. Tenant shall not commit any act or permit anything in or about
\nthe Building Complex which shall or might subject Landlord to any liability
\nor responsibility for injury to any person or property by reason of any
\nbusiness or operation being carried on in or about the Building Complex or
\nfor any other reason.<\/p>\n
20. Tenant shall not use the Building for lodging, sleeping, or for
\nany immoral or illegal purpose or for any purpose that will damage the
\nBuilding, or the reputation thereof, or for any purposes other than those
\nspecified in the Lease.<\/p>\n
21. Canvassing, soliciting, and peddling in the Building Complex are
\nprohibited, and Tenant shall cooperate to prevent such activities.<\/p>\n
22. Tenant shall not conduct mechanical or manufacturing operations
\nother than those expressly permitted in Section 6 of the Lease without
\nLandlord’s prior consent, nor place or use any inflammable combustible
\nexplosive, or hazardous fluid, chemical, device, substance or material in or
\nabout the Building. Tenant shall comply with all statutes, ordinances, rules,
\norders, regulations and requirements imposed by governmental or
\nquasi-governmental authorities in connection with fire and panic safety and
\nfire prevention and shall not commit any act or permit any object to be
\nbrought or kept in the Building, which shall result in a changed use of the
\ngeneral public, and Landlord shall, in all cases, retain the right to control
\nor prevent access thereto by all persons whose presence in the judgment of
\nthe Landlord, shall be prejudicial to the safety, character, reputation or
\ninterests of the Building Complex and its tenants. Tenant shall not go upon
\nthe roof of the Building without the express prior written consent of
\nLandlord.<\/p>\n
23. Tenant shall not deposit any trash, refuse, cigarettes, or other
\nsubstances of any kind within or out of the Building except in the refuse
\ncontainers provided therefore.<\/p>\n
24. Tenant shall use the Common Areas only as a means of ingress and
\negress, and Tenant shall permit no loitering by any persons upon Common Areas
\nor elsewhere within the Building Complex.<\/p>\n
25. Landlord its agents or representatives reserve the right to
\nexclude or expel from the Building Complex any person, who, in the judgment
\nof Landlord, is intoxicated or under the influence of liquor or drugs or who
\nshall in any manner act in violation of the rules and regulations of the
\nBuilding Complex.<\/p>\n
26. Tenant shall not use the washrooms, restrooms and plumbing
\nfixtures of <\/p>\n
the Building, and appurtenances thereto, for any other purpose then the
\npurposes for which they were constructed, and Tenant shall not deposit any
\nsweepings, rubbish, rags or other improper substances therein. Tenant shall
\nnot waste water by interfering or tampering with the faucets or otherwise. If
\nTenant or Tenant’s servants, employees, contractors, jobbers, agents,
\nlicensees, invitees, guests or visitors cause any damage to such washrooms,
\nrestrooms, plumbing fixtures or appurtenances, such damage shall be repaired
\nat Tenant’s expense and Landlord shall not be responsible therefor.<\/p>\n
27. During the term of the Lease, Tenant shall comply with all
\nstatutes, ordinances, rules, orders, regulations and requirements of the
\nfederal, state, county and city governments and all departments thereof
\napplicable to the presence, storage, user maintenance and removal of toxic,
\nhazardous or contaminated substances (collectively, “hazardous material”) in,
\non or about the Premises, which presence, storage, use, maintenance or
\nremoval is caused or permitted by Tenant. In no event shall the aforesaid be
\nconstrued to mean that Landlord has given or will give its consent to
\nTenant’s storing, using, maintaining or removing hazardous materials in, on
\nor about the Premises.<\/p>\n
28. Tenant shall not permit its employees or agents to smoke in any
\nlobby, hallway or restroom within the Building Complex or in any other areas
\nof the Building Complex posted as a non-smoking area.<\/p>\n
29. Tenant agrees that Landlord may reasonably amend, modify, delete
\nor add new and additional reasonable rules and regulations to the use and
\ncare of the Premises and the Building Complex, provided such changes shall
\nnot interfere with Tenant’s quiet enjoyment of the Premises for its intended
\npurposes. Tenant agrees to comply with all such rules and regulations upon
\nnotice to Tenant from Landlord thereof. In the event of any breach of any
\nrules and regulations herein set forth or any reasonable amendments,
\nmodifications or additions thereto Landlord shall have all remedies in this
\nLease provided for in the event of default by Tenant.<\/p>\n
EXHIBIT F<\/p>\n
List of equal or superior rights of opportunity on vacant space within
\nthe Building.<\/p>\n
None<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7639],"corporate_contracts_industries":[9405],"corporate_contracts_types":[9584,9579],"class_list":["post-41814","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-gilead-sciences-inc","corporate_contracts_industries-drugs__biotech","corporate_contracts_types-land__co","corporate_contracts_types-land"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41814","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41814"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41814"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41814"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41814"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}