EXHIBIT 10.19.1
FIRST AMENDMENT AND
LEASE OF ADDITIONAL OFFICE SPACE
BETWEEN: BROOKFIELD REPUBLIC INC.
a Colorado corporation ("Landlord")
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
AND: INTEK INFORMATION, INC.
a Colorado corporation ("Tenant")
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
FOR PREMISES IN: REPUBLIC PLAZA
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
DATE: OCTOBER 17, 1997
LANDLORD AND TENANT hereby agree as follows:
1. In this First Amendment and Lease of Additional Office Space:
(a) "Building" means Republic Plaza located in the City of Denver,
Colorado.
(b) "Lease" means the Lease of Office Space dated November 15, 1996, by
and between Landlord and Tenant, covering certain premises in the
Building.
(c) "Initial Premises" means 9,983 rentable square feet, more or less, on
the twenty-second (22nd) floor of the Building.
(d) "Additional Space" means 11,624 rentable square feet of space on the
twenty-third (23rd) floor of the Building, as generally indicated on
Exhibit 1, being 10,108 usable square feet plus 1,516 unallocated
square feet hereof and becoming a part of the Premises.
(e) "Term" means three (3) years, two and one half (2 1/2) months,
commencing November 16, 1997, and terminating on the same date that
the Lease terminates.
(f) "Amendment Date" means the sixteenth (16th) day of November, 1997.
(g) All other words and phrases, unless otherwise defined herein, have
the meanings attributed to them in the Lease.
2. Landlord hereby demises and leases the Additional Space to Tenant, and
Tenant accepts the lease of the Additional Space to have and to hold during
the Term, on the same terms and conditions as are contained in the Lease
except as herein otherwise provided, and expressly excepting the following:
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(a) Annual Rent - Tenant shall pay the Annual Rent to Landlord in advance
in equal monthly payments at the times and in the manner as rental
payments are to be made pursuant to the Lease.
(b) Renewals - This lease shall be subject to the same right of renewal
(if any) as is contained in the Lease, and any renewal of the Lease
in accordance therewith shall be deemed to be a renewal of this lease
upon the same terms and conditions as are applicable to such renewal
of the Lease.
(c) Condition of Additional Space - Tenant shall be deemed to have
examined and accepted the Additional Space in the condition as of the
date hereof, and no tenant or other allowance shall be paid by
Landlord to Tenant in respect of the Additional Space, except as set
forth in Article 23.00 herein.
(d) Default - Any default by Tenant under the Lease shall be deemed to be
a default hereunder, and any default hereunder shall be deemed to be
a default under the Lease.
(e) Termination - If the Lease terminates for any reason whatever this
Lease shall terminate on the same date.
(f) Occupancy Costs - Tenant shall pay as additional rent Occupancy Costs
in respect of the Additional Space at the times and in the manner as
payments of Occupancy Costs are to be made pursuant to the Lease.
3. Effective on the Amendment Date, Article 1.01 (q) of the Lease is hereby
deleted and the following substituted therefor:
1.01 Definitions. In this Lease:
(q) "Premises" means 9,983 rentable square feet, more or less, on
the twenty-second (22nd) floor, plus 11,624 rentable square
feet, more or less, on the twenty-third (23rd) floor, for a
total of 21,607 rentable square feet in the Building.
4. Effective on the Amendment Date, the following shall be added as Articles
22.03 and 22.04 of the Lease:
22.03 Annual Rent - Additional Space. Tenant shall pay to Landlord as
Annual Rent for the Additional Space:
(i) the sum of $105,197.16 per annum in respect of months one (1)
through fourteen and one half (14 1/2) of the Term, calculated
at $9.05 per rentable square foot per annum on 11,624 rentable
square feet, payable in advance and without notice in monthly
installments of $8,766.43, commencing on November 16, 1997, and
on the first day of each calendar month during this period; and
(ii) the sum of $120,308.40 per annum in respect of months fifteen
(15) through thirty-eight (38) of the Term, calculated at $10.35
per rentable square foot per annum on 11,624 rentable square
feet, payable in advance and without notice in
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monthly installments of $10,025.70, commencing on February 1,
1999, and on the first day of each calendar month during this
period.
22.04 Rental Abatement - Additional Space. Effective on the Amendment Date
and in respect of 5,812 rentable square feet of Additional Space
only, notwithstanding anything to the contrary in the foregoing for a
period equivalent to four (4) months beginning on the first day of
the Term, and terminating on the day preceding the fourth (4th)
monthly anniversary of the first day of the Term ("Rent Concession
Period"), Landlord agrees that it shall not collect from nor demand
of Tenant the monthly installments of Annual Rent and Occupancy Costs
required by Article 4.00 of the Lease, provided that as of each such
Annual Rent and Occupancy Costs required due date, Tenant is not in
default under the terms of the Lease.
Notwithstanding such Rent Concession Period, Tenant agrees that its
obligation to pay the Annual Rent and Occupancy Cost payments
reserved by the Lease during such period shall continue throughout
the term of the Lease, and in the event Tenant defaults under the
Lease pursuant to Article 19.00 and Landlord commences an action to
recover Rent and Occupancy Costs and/or possession of the Premises,
then all Annual Rent and Occupancy Cost payments not collected by
Landlord during the Rent Concession Period shall, as of the date of
Tenant's default, become immediately due and payable with interest on
such sums at the lesser of two percent (2%) per month or the maximum
rate permitted by law from the date each such installment was
originally due to the date of payment. Annual Rent and Occupancy
Costs during the Rent Concession Period shall be calculated at the
same rate that Tenant would pay at the end of the Rent Concession
Period, i.e. the first month's rent. Said obligation of Tenant for
payment of Annual Rent and Occupancy Cost payments not collected
during the Rent Concession Period shall be independent of and in
addition to Landlord's other damages pursuant to Article 4.00 of the
Lease. Nothing set forth in this Article 22.04 shall be applicable to
Rent required for parking spaces as set out in Article 25.00 of the
Lease.
Upon expiration of the primary lease term without default by Tenant,
all obligations of Tenant to pay the uncollected Annual Rent and
Occupancy Cost payments and any other Rent Concessions during the
Rent Concession Period shall cease and Landlord agrees that it shall
thereafter waive all rights of collection or recovery with respect to
such obligations.
Landlord and Tenant agree that no portion of the rent paid by Tenant
during the portion of the term of the Lease occurring after the
expiration of the Rent Concession Period shall be allocated by
Landlord or Tenant to such Rent Concession Period, nor is such rent
intended by the parties to be allocable to any Rent Concession
Period.
5. Effective on the Amendment Date, the following shall be added to Article
21.14 of the Lease:
"In respect of the Additional Space and effective on the Amendment
Date, a deposit of $10,000.00, payable to Landlord is delivered
herewith to be held without accruing interest, at Landlord's option
in a separate account or commingled with other funds to be held by
Landlord through the term of the Lease. If Tenant fails to comply
with the provisions hereof, such deposit shall be retained by
Landlord in payment for its expenses or damages or any amounts
payable under the Lease, but such retention shall not limit or
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preclude Landlord's right of action for damages or other remedies for
breach of the provisions of this Lease."
6. Effective on the Amendment Date, the following Articles 23.02 and 25.02 of
the Lease shall be added to the Lease:
23.02 Tenant Improvement Allowance - Additional Space. Landlord shall
provide a tenant improvement allowance for the Additional Space not
to exceed $58,120.00, as increased or decreased on the basis of $5.00
per rentable square foot ("Tenant Improvement Allowance"), for the
purpose of contributing toward the cost of Tenant's design,
engineering and construction of real property improvements within the
Premises (the "Tenant Improvements") in accordance with a mutually
agreed upon space plan ("Space Plan"). Tenant shall be responsible
for any costs that exceed the above stated Tenant Improvement
Allowance.
Should Tenant request Landlord to perform any changes or additions to
the Space Plan and such modifications increase the costs of Tenant
Improvements above the Tenant Improvement Allowance, Tenant shall be
responsible for all such costs and expenses. Tenant shall be required
to sign a tenant authorization form ("TAF") prior to commencement of
any modifications and Tenant shall pay to Landlord such costs within
ten (10) days of such written notice from Landlord. Tenant shall be
responsible for all work not described in the Space Plan and
specifications desired by Tenant or necessary to complete the
Premises for occupancy.
25.02 Parking. Tenant shall have the option exercisable by the Amendment
Date to rent eight (8) unreserved guaranteed parking spaces at the
Tremont Parking Center, located at 15th and Tremont Street, at rates
set by Landlord from time to time. The current monthly rental rate is
$90.00.
In the event Tenant fails to exercise the above option by the
Amendment Date or discontinues the use or payment for any of the
above guaranteed parking spaces for a period of thirty (30) days or
more, such spaces shall no longer be deemed guaranteed and/or
available and shall return to Landlord as its available inventory.
7. Landlord and Tenant each hereby represent and warrant to the other that it
does not recognize and has not used any broker with respect to this Lease
and the negotiation hereof.
8. Effective on the Amendment Date, Exhibit G ("Telecommunications") is hereby
attached to and made a part of the Lease.
9. This First Amendment and Lease of Additional Office Space shall be binding
on the heirs, administrators, successors and assigns (as the case may be)
of the parties hereto.
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10. The execution of this First Amendment and Lease of Additional Office Space
shall be subject to the approval of Landlord's Management Committee and, if
required, by Landlord's lender for the Building.
11. Except as specifically provided herein, the terms and conditions of the
Lease, including the payment of Occupancy Costs, are confirmed and continue
in full force and effect.
IN WITNESS OF THIS FIRST AMENDMENT AND LEASE OF ADDITIONAL OFFICE SPACE,
Landlord and Tenant have properly executed it as of the date set out on page
one.
LANDLORD: TENANT:
BROOKFIELD REPUBLIC INC. INTEK INFORMATION, INC.
a Colorado corporation a Colorado corporate
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxxx X. X'Xxxx
------------------ ---------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. X'Xxxx
Title: Vice President Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxxx By: _____________________
----------------------
Name: Xxxxxxx X. Xxxxxx Name: ___________________
Title: Vice President Title: _________________
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EXHIBIT G
REPUBLIC PLAZA
TELECOMMUNICATIONS
SECTION 1.00 LIMITATION OF RESPONSIBILITY
1.01 Limitation of Responsibility. Tenant acknowledges and agrees that all
telephone and telecommunications services desired by Tenant shall be
ordered and utilized at the sole expense of Tenant. Unless Landlord
otherwise requests or consents in writing, all of Tenants
telecommunications equipment (other than connections) shall be and remain
solely in Tenant's Premises, in accordance with rules and regulations
adopted by Landlord from time to time. Unless otherwise specifically agreed
to in writing, Landlord shall have no responsibility for the maintenance of
Tenants telecommunications equipment, including wiring; nor for any wiring
or other infrastructure to which Tenant's telecommunications equipment may
be connected. Tenant agrees that, to the extent any such service is
interrupted, curtailed or discontinued, Landlord shall have no obligation
or liability with respect thereto and it shall be the sole obligation of
Tenant at its expense to obtain substitute service.
SECTION 2.00 NECESSARY SERVICE INTERRUPTIONS
2.01 Necessary Service Interruptions. Landlord shall have the right, upon
reasonable prior notice to Tenant, to interrupt or turn off
telecommunications facilities in the event of emergency or as necessary in
connection with repairs to the Building or installation of
telecommunications equipment for other Tenants of the Building.
SECTION 3.00 REMOVAL OF EQUIPMENT, WIRING AND OTHER FACILITIES
3.01 Removal of Equipment, Wiring and Other Facilities. Any and all
telecommunications equipment installed in Tenant's Premises or elsewhere in
the Building by or on behalf of Tenant, including wiring, or other
facilities for telecommunications transmittal, shall be removed prior to
the expiration or earlier termination of the Lease term, by Tenant at its
sole cost or, at Landlord's election, by Landlord at Tenants sole cost,
with the cost thereof to be paid as additional rent. Landlord shall have
the right, however, upon written notice to Tenant given no later than
thirty (30) days prior to the expiration or earlier termination of the
Lease term, to require Tenant to abandon and leave in place, without
additional payment to Tenant or credit against rent, any and all
telecommunications wiring and related infrastructure, or selected
components thereof, whether located in Tenant's Premises or elsewhere in
the Building.
SECTION 4.00 NEW PROVIDER INSTALLATIONS
4.01 New Provider Installations. In the event that Tenant wishes at any time to
utilize the services of a telephone or telecommunications provider whose
equipment is not then servicing the Building, no such provider shall be
permitted to install its lines or other equipment within the Building
without first securing the prior written approval of Landlord. Landlord's
approval shall not be deemed any kind of warranty or representation by
Landlord, including, without limitation, any warranty or representation as
to the suitability, competence, or financial strength of the provider.
Without limitation of the foregoing standard, unless all of the following
conditions are satisfied to Landlord's satisfaction, it shall be reasonable
for Landlord to refuse to give its approval:
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(a) Landlord shall incur no expense whatsoever with respect to any aspect
of the provider's provision of its services, including without
limitation, the costs of installation, materials and services;
(b) prior to commencement of any work in or about the Building by the
provider, the provider shall supply Landlord with such written
indemnities, insurance, financial statements, and such other items as
Landlord reasonably determines to be necessary to protect its
financial interests and the interests of the Building relating to the
proposed activities of the provider.
(c) the provider agrees to abide by such rules and regulations, building
and other codes, job site rules and such other requirements as are
reasonably determined by Landlord to be necessary to protect the
interests of the Building, the tenants in the Building and Landlord,
in the same or similar manner as Landlord has the right to protect
itself and the Building with respect to proposed alterations as
described in Exhibits D and E of this Lease;
(d) Landlord reasonably determines that there is sufficient space in the
Building for the placement of the providers equipment and materials;
(e) the provider agrees to abide by Landlord requirements, if any, that
provider use existing building conduits and pipes or use building
contractors (or other contractors approved by Landlord);
(f) Landlord receives from the provider such compensation as is
reasonably determined by Landlord to compensate it for space used in
the Building for the storage and maintenance of the provider's
equipment, for the fair market value of a provider's access to the
Building, and the costs which may reasonably be expected to be
incurred by Landlord;
(g) the provider agrees to deliver to Landlord detailed "as built" plans
immediately after the installation of the provider's equipment is
complete; and
(h) all of the foregoing matters are documented in a written license
agreement between Landlord and the provider, the form and content of
which is reasonably satisfactory to Landlord.
SECTION 5.00 LIMIT OF DEFAULT OR BREACH
5.01 Limit of Default or Breach. Notwithstanding any provision of the proceeding
paragraphs to the contrary, the refusal of Landlord to grant its approval
to any prospective telecommunications provider shall not be deemed a
default or breach by Landlord of its obligation under this Lease unless and
until Landlord is adjudicated to have acted recklessly or maliciously with
respect to Tenant's request for approval, and in that event, Tenant shall
still have no right to terminate the Lease or claim an entitlement to rent
abatement, but may as Tenant's sole and exclusive recourse seek a judicial
order of specific performance compelling Landlord to grant its approval as
to the prospective provider in question. The provisions of this paragraph
may be enforced solely by Tenant and Landlord, are not for the benefit of
any other party (including any subtenant), and specifically but without
limitation, no telephone or telecommunications provider shall be deemed a
third party beneficiary of this Lease.
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SECTION 6.00 INSTALLATION AND USE OF WIRELESS TECHNOLOGIES
6.01 Installation and Use of Wireless Technologies. Tenant shall not utilize any
wireless communications equipment (other than usual and customary cellular
telephones), including antennae and satellite receiver dishes, within
Tenant's Premises or the Building, without Landlord's prior written
consent. Such consent may be conditioned in such a manner so as to protect
Landlord's financial interests and the interests of the Building, and the
other Tenants therein, in a manner similar to the arrangements described in
the immediately preceding paragraphs.
SECTION 7.00 LIMITATION OF LIABILITY FOR EQUIPMENT INTERFERENCE
7.01 Limitation of Liability For Equipment Interference. In the event that
telecommunications equipment, wiring and facilities or satellite and
antennae equipment of any type installed by or at the request of Tenant
within Tenants Premises, on the roof, or elsewhere within or on the
Building causes interference to equipment used by another party, Tenant
shall assume all liability related to such interference. Tenant shall use
reasonable efforts, and shall cooperate with Landlord and other parties, to
promptly eliminate such interference. In the event that Tenant is unable to
do so, Tenant will substitute alternative equipment which remedies the
situation. If such interference persists, Tenant shall discontinue the use
of such equipment, and, at Landlord's discretion, remove such equipment
according to foregoing specifications.
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