EXHIBIT 10.14
LEASE
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1. PARTIES. This Lease, dated, for reference purposes only, June 16,
1999 is made by and between BLC PROPERTIES, LLC (herein called "Landlord") and
VSTREAM, INCORPORATED, A DELAWARE CORPORATION. (herein called "Tenant").
2. PREMISES. Landlord does hereby lease to Tenant and Tenant hereby
leases from Landlord that certain office building, said Premises being agreed,
for the purposes of this Lease, to have an area of approximately 36,444 square
feet and being situated on the 1st and 2nd FLOORS of that certain building known
as THE VALLEYVIEW BUILDING ("Building"), 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000. Said Lease is subject to the terms, covenants and conditions
herein set forth and the Tenant covenants as a material part of the
consideration for this Lease to keep and perform each and all of said terms,
covenants and conditions by it to be kept and performed and that this Lease is
made upon the condition of said performance.
3. TERM. The term of this Lease shall be for ten (10) years. This Lease
shall commence on the 1st day of October, 1999 ("Commencement Date"), and end on
the 30th day of September, 2009.
4. POSSESSION.
a. If the Landlord cannot deliver possession of the Premises to
Tenant at the commencement of the term hereof, this Lease shall not be void or
voidable, the expiration date of the above term shall be extended, to ten (10)
years after the end of the month during which Landlord delivers possession to
Tenant and all rent shall be abated during the period between the commencement
date and the time when Landlord delivers possession. Notwithstanding anything to
the contrary contained in this section 4(a), in the event that Landlord has not
delivered possession of the Premises to Tenant, for any reason whatsoever, on or
prior to sixty (60) days after the commencement date set forth in Section 3(a)
above, then Tenant may terminate this Lease upon written notice to Landlord and
neither party shall thereafter have any obligations or liability under this
Lease. Nothing in the contrary shall relieve Landlord of its obligation to use
its best efforts to complete the Tenant Improvements and to deliver possession
of the Premises to Tenant on or before the commencement date set forth in
Section 3(a) above. In the event that this Lease is terminated pursuant to this
Section 4(a), Landlord shall promptly return to Tenant the first month's rent
and security deposit prepaid pursuant to Section 5(a) below.
b. In the event that Landlord shall permit Tenant to occupy the
Premises prior to the commencement date of the term, such occupancy shall be
subject to all the provisions of the Lease. Said early possession shall not
advance the termination date herein above provided. Notwithstanding the
foregoing, in the event that Landlord permits Tenant to enter the Premises prior
to completion of the Tenant Improvements solely for the purposes of performing
Tenant's pre-opening activities, Tenant shall not be obligated to pay Rent while
Tenant is performing such pre-opening activities.
5. RENT.
a. Tenant agrees to pay to Landlord as basic rental, without prior
notice or demand, the sum of FIFTY THOUSAND ONE HUNDRED TEN AND 50/100 Dollars
($50,110.50), on or before the first day of the first full calendar month of the
term hereof and a like sum on or before the first day of each and every
successive calendar month thereafter during the term hereof, except that the
first month's rent shall be paid at the time the Premises is available for
occupancy. Rent for any period during the term hereof which is for less than one
(1) month shall be a prorated portion of the monthly installment herein, based
upon a thirty (30) day month. Said rental shall be paid to Landlord, without
deduction or offset in lawful money of the United States of America, which shall
be legal tender at the time of payment at 0000 00xx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000, or to such other person or at such other place as Landlord may
from time to time designate in writing.
b. On the first day of the month following the end of a Lease year
Landlord may increase the basic rental payable for the subsequent twelve (12)
month period. The increase shall be measured by the increase in the Consumer
Price Index, as described below, but shall not
exceed three percent (3%) of the basic rental owing for the immediately
preceding year ("the 3% Cap"). The following definitions and methods shall be
used to calculate the increases in basic rental under this paragraph:
(1) "Consumer Price Index" shall mean the semi-annual indexes
of the Consumer Price Index for all Urban Consumers, Denver-Boulder, Colorado
(All items; 1982-84 equals 100) issued by the United States Department of Labor,
Bureau of Labor Statistics, or any successor agency of the United States that
issues such indexes or any successor index.
(2) "Initial Consumer Price Index" shall mean the Consumer
Price Index published for the nearest calendar period preceding the Commencement
Date of this Lease.
(3) "Latest Consumer Price Index" shall mean the Consumer
Price Index published for the nearest calendar period preceding the first day on
which an increase under this Lease is to be effective.
(4) "Previous Consumer Price Index" shall mean the Consumer
Price Index published for the nearest calendar period preceding the first day on
which the previous increase under this Lease was effective.
(5) The first increase will be calculated by multiplying the
basic rental by a fraction, with the numerator being the Latest Consumer Price
Index and the denominator being the Initial Consumer Price Index.
(6) Each subsequent increase will be calculated by
multiplying the then current basic rental by a fraction, with the numerator
being the Latest Consumer Price Index and the denominator being the Previous
Consumer Price Index.
(7) To the extent that the calculation under subparagraphs
(5) and (6) above exceed the 3% Cap, such excess ("Excess") shall be preserved
and carried forward to subsequent years until utilized. All or part of the
Excess may be added to the amount calculated under subparagraph (6) above for
any subsequent year, subject to the 3% Cap.
(8) If the Consumer Price Index is discontinued, Landlord
will designate an alternative comparable index to be used in calculating the
increase in the basic rental under this Lease.
(9) Tenant will not be entitled to a credit for any decrease
in the Consumer Price Index except to the extent that it shall be off-set
against any Excess carried forward under the provisions of paragraph 5(b)(7).
c. Notwithstanding any provision contained herein, the basic
monthly rental due under the terms hereof shall at no time be less than FIFTY
THOUSAND ONE HUNDRED TEN AND 50/100 Dollars ($50,110.50).
6. SECURITY DEPOSIT. Tenant has deposited with Landlord, upon the
execution of this Lease, the sum of SIXTY TWO THOUSAND TWO HUNDRED FIFTY EIGHT
AND 50/100 Dollars ($62,258.50). Said sum shall be held by Landlord as security
for the faithful performance by Tenant of all the terms, covenants, and
conditions of this Lease to be kept and performed by Tenant during the term
hereof. If Tenant defaults with respect to any provision of this Lease,
including, but not limited to the provisions relating to the payment of rent,
Landlord may (but shall not be required to) use, apply or retain all or any part
of this security deposit for the payment of any rent or any other sum in
default, or for the payment of any amount which Landlord may spend or become
obligated to spend by reason of Tenant's default, or to compensate Landlord for
any other loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said deposit is so used or applied, Tenant shall
within five (5) days after written demand therefor, deposit cash with Landlord
in an amount sufficient to restore the security deposit to its original amount
and Tenant's failure to do so shall be a material breach of this Lease. Landlord
shall not be required to keep this security deposit separate from its
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general funds, and Tenant shall not be entitled to interest on such deposit. If
Tenant shall fully and faithfully perform every provision of this Lease to be
performed by it, the security deposit or any balance thereof shall be returned
to Tenant (or at Landlord's option, to the last assignee of Tenant's interest
hereunder) at the expiration of the Lease term. In the event of termination of
Landlord's interest in this Lease, Landlord shall transfer said deposit to
Landlord's successor in interest.
7. OPERATING EXPENSES. For the purposes of this Article, operating
expenses means all reasonable and necessary costs and expenses of every kind and
nature, other than those expressly excluded below, paid or incurred by Landlord
in operating, managing, repairing, maintaining and administering the Building
including, without limitation or duplication:
a. The cost of all insurance required to be kept by Landlord
pursuant to this Lease and any other insurance customarily procured for other
commercial buildings in the same geographical area as the Building and which
Landlord may reasonably elect to obtain with respect to the operation or
ownership of the Property and the part of any claim required to be paid under
the deductible portion of any insurance policies carried by Landlord in
connection with the Property.
b. The cost of reasonable and necessary general repairs,
maintenance and replacements, excluding capital expenditures, made from time to
time by Landlord to the Property, including costs under mechanical or other
maintenance contracts and repairs and replacements of equipment used in
connection with such maintenance and repair work.
c. The cost of pest control, security, cleaning and snow and ice
removal services.
d. The cost of maintaining, repairing, redecorating, renovating,
replacement of floor coverings of common areas, and landscaping the Common
Facilities, and of maintaining and operating any fire detection, fire
prevention, lighting and communications systems. Redecorating, renovating and
replacement of floor coverings of common areas shall be charged to operating
expenses as provided in subparagraph i. of this paragraph.
e. The cost of all utilities (including, without limitation,
water, sewer, gas and electricity) used or consumed.
f. The cost of providing heating, ventilating and cooling to the
interior portions of the Building.
g. Remuneration (including wages, usual expense accounts and
fringe benefits, costs to Landlord of workmen's compensation and disability
insurance and payroll taxes) and fees of persons and companies to the extent
directly engaged in operating, repairing, maintaining, or administering the
Property.
h. The cost of professional property management fees (6% of basic
rental), and costs incurred by Landlord or its agents in engaging accountants or
other consultants to assist in making the computations required hereunder.
i. The cost of capital improvements and structural repairs and
replacements made in, on or to the Property that are [i] made in order to
conform to changes subsequent to the Commencement Date in any applicable laws,
ordinances, rules, regulations or orders of any governmental or quasi-
governmental authority having jurisdiction over the Property, or [ii] designed
primarily to reduce Operating Expenses or the rate of increase in Operating
Expense, [iii] redecoration, renovating and replacement of floor coverings; such
costs shall be charged by Landlord to Operating Expense in equal annual
installments over the useful life of such capital improvement or structural
repair or replacement (as reasonably determined by Landlord) together with
interest on the balance of the unreimbursed cost at 4% above the Prime Rate
charged by Bank One, Colorado, N.A. in Boulder on the date the cost was incurred
by Landlord.
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j. Real property taxes and assessments, gross receipts, taxes
(whether assessed against the Landlord or assessed against the Tenant and
collected by the Landlord, or both). Tenant shall not be responsible to pay any
fines, late charges or penalties assessed against Landlord as a result of
Landlord's failure to timely pay such taxes and assessments.
k. Other costs and expenses, including supplies, not otherwise
expressly excluded hereunder attributable to the operation, management, repair,
maintenance and administration of the Property.
l. A reserve for replacement of heating, ventilating and air-
conditioning equipment, replacement of the roof, and parking lot of EIGHTEEN
THOUSAND AND NO/100 Dollars ($18,000.00) per annum.
Operating Expenses shall not, however, include the following:
m. Any charge for depreciation of the Building or equipment and
any principal, interest or other finance charge.
n. The cost of any work, including painting, decorating and work
in the nature of tenant finish, which Landlord performs in any Rentable Premises
other than work which Landlord performs in the Premises.
o. The cost of repairs, replacements or other work occasioned by
insured casualty or defects in construction or equipment to the extent such cost
is reimbursed to Landlord (or not charged to Landlord) by reason of collected
insurance proceeds (using Landlord's good faith efforts to collect such
proceeds) or any contractors', manufacturers' or suppliers' warranties.
p. Expenditures required to be capitalized for federal income tax
purposes (except as provided in Article 7, paragraph d. and i.).
q. Leasing commissions, advertising expenses and other costs
incurred in leasing space in the Building except as otherwise expressly provided
in this Lease.
r. The cost of repairing or rebuilding necessitated by
condemnation.
s. The cost of any damage to the Property or any settlement,
payment or judgment incurred by Landlord, resulting from Landlord's tortious
act, neglect or breach of this Lease that is not covered by insurance proceeds.
t. Costs (including, without limitation, attorneys fees) incurred
by Landlord in attempting to collect rent or evict tenants (other than Tenant)
from the Building.
u. Costs, including, without limitation, any penalties, fines and
legal expenses incurred by Landlord or any other tenant in the Building as a
result of a violation of any federal, state or local law, code or regulation.
Tenant shall pay 100% of Operating Expenses paid or incurred by the
Landlord for the operation or maintenance of the Building of which the Premises
are a part. Upon commencement of this Lease, Landlord shall give Tenant a
statement of the amount of Operating Expenses payable by Tenant with each
payment of rent, which shall be based upon a best estimate of such expenses if
no record of actual expenses for the prior year are available. Landlord shall
endeavor to give to Tenant on or before the first day of March of each year
thereafter an itemized statement of the prior year's Operating Expenses payable
by Tenant hereunder and advise Tenant of any increase in Operating Expenses, but
failure by Landlord to give such statement by said date shall not constitute a
waiver by Landlord of its right to require an increase in Operating Expenses.
The total amount of actual Operating Expenses for the prior year shall be used
as an estimate for current year and this amount shall be divided into twelve
(12) equal monthly installments, and Tenant shall pay to Landlord, concurrently
with the regular
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monthly rent payment next due following the receipt of such statement, an amount
equal to one (1) monthly installment multiplied by the number of months from
January in the calendar year in which said statement is submitted to the month
of such payment. Subsequent installments shall be payable concurrently with the
regular monthly rent payments for the balance of that calendar year and shall
continue until the next year's statement is rendered. If actual Operating
Expenses are more or less than estimated, then upon receipt of a statement from
Landlord, Tenant shall pay a lump sum equal to such total increase with the next
regular monthly rent payment or receive a credit against said rent payment.
Tenant or its representative shall have the right to inspect Landlord's books
and records relating to the Operating Expenses during normal business hours.
Even though the term has expired and Tenant has vacated the Premises,
when the final determination is made of Tenant's share of Operating Expenses for
the year in which this Lease terminates, Tenant shall immediately pay any
increase due over the estimated expenses paid and, conversely, any overpayment
made in the event said expenses decrease shall be immediately rebated by
Landlord to Tenant.
8. USE. Tenant shall use the Premises for Internet Services and General
Offices and shall not use or permit the Premises to be used for any other
purpose without the prior written consent of Landlord.
Tenant shall not do or permit anything to be done in or about the
Premises nor bring or keep anything therein which will in any way increase the
existing rate or affect any fire or other insurance upon the Building or any of
its contents, or cause cancellation of any insurance policy covering said
Building or any part thereof or any of its contents. Tenant shall not do or
permit anything to be done in or about the Premises which will, in any way,
obstruct or interfere with the rights of other tenants or occupants of the
Building or injure or annoy them or use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises. Tenant shall not
commit or suffer to be committed any waste in or upon the Premises.
9. COMPLIANCE WITH LAW. Tenant shall not use the Premises or permit
anything to be done in or about the Premises which will, in any way, conflict
with any law, statute, ordinance or governmental rule or regulation now in force
or which may hereafter be enacted or promulgated. Tenant shall, at its sole cost
and expense, promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force, and with the requirements of any board of fire insurance
underwriters or other similar bodies now or hereafter constituted, relating to,
or affecting the condition, use or occupancy of the Premises, excluding
structural changes not related to or affected by Tenant's improvements or acts.
The judgment against Tenant, whether the Landlord be a party thereto or not,
that Tenant has violated any law, statute, ordinance or governmental rule,
regulation or requirement, shall be conclusive of that fact as between the
Landlord and Tenant.
10. ALTERATIONS AND ADDITIONS. Tenant shall not make or suffer to be made
any alterations, additions or improvements to or of the Premises or any part
thereof without the written consent of Landlord first had and obtained, which
will not be unreasonably withheld, conditioned or delayed, and any alterations,
additions or improvements to or of said Premises, including, but not limited to,
wall covering, paneling and built-in cabinet work, but excepting movable
furniture and trade fixtures, shall, on the expiration of the term, become a
part of the realty and belong to the Landlord and shall be surrendered with the
Premises. In the event Landlord consents to the making of any alterations,
additions or improvements to the Premises by Tenant, the same shall be made by
Tenant at Tenant's sole cost and expense, and any contractor or person selected
by Tenant to make the same, must first be approved of in writing by the
Landlord, which will not be unreasonably withheld, conditioned or delayed. Upon
the expiration or earlier termination of the term hereof, Tenant shall, upon the
written demand by the Landlord, given at least thirty (30) days prior to the end
of the term, at Tenant's sole cost and expense, forthwith and with all due
diligence, remove any alterations, additions, or improvements made which have
been designated by the Landlord to be removed, and repair any damage to the
Premises caused by such removal.
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11. REPAIRS.
a. Subject to Tenant's right to inspect the Premises prior to
occupancy thereof and submit a "Punch List" to Landlord in accordance with
Paragraph 32 of this Lease, by taking possession of the Premises, Tenant shall
be deemed to have accepted the Premises as being in good, sanitary order,
condition and repair. Tenant shall, at Tenant's sole cost and expense, keep the
Premises and every part thereof in good condition and repair, damage thereto
from causes beyond the reasonable control of Tenant and ordinary wear and tear
excepted. Tenant shall, upon the expiration or sooner termination of this Lease
hereof, surrender the Premises to the Landlord in good condition, ordinary wear
and tear and damage from causes beyond the reasonable control of Tenant
excepted. Except as specifically provided in an addendum, if any, to this Lease,
Landlord shall have no obligation whatsoever to alter, remodel, improve, repair,
decorate or paint the Premises or any part thereof, and the parties hereto
affirm that Landlord has made no representations to Tenant respecting the
condition of the Premises or the Building except as specifically herein set
forth.
b. Landlord shall repair and maintain the structural portions of
the Building, including the roof, basic plumbing, air conditioning, heating, and
electrical and sprinkler systems installed or furnished by Landlord, unless such
maintenance and repairs are caused in part or in whole by the act, neglect,
fault or omission of any duty by the Tenant, its agents, servants, employees or
invitees, in which case Tenant shall pay to Landlord the reasonable cost of such
maintenance and repairs. The cost of all such repairs (except repairs of
structural defects) shall be included in Operating Expenses as provided in
Article 7 hereof. Landlord shall not be liable for any failure to make any such
repairs or to perform any maintenance unless such failure shall persist for an
unreasonable time after written notice of the need of such repairs or
maintenance is given to Landlord by Tenant. Except as provided in Article 22
hereof, and subject to the provisions of Article 21, there shall be no abatement
of rent and no liability of Landlord by reason of any injury to or interference
with Tenant's business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or in or to
fixtures, appurtenances and equipment therein. Except in the event of an
emergency, Tenant waives the right to make repairs at Landlord's expense under
any law, statute or ordinance now or hereafter in effect.
12. LIENS. Tenant shall keep the Premises and the property in which the
Premises are situated free from any liens arising out of any work performed,
materials furnished or obligations incurred by Tenant. Landlord may require, at
Landlord's sole option, that Tenant shall provide to Landlord, at Tenant's sole
cost and expense, a lien and completion bond or other security reasonably
acceptable to Landlord in an amount equal to one and one-half (1-1/2) times any
and all estimated cost of improvements, additions, or alterations in the
Premises, to insure Landlord against any liability for mechanics' and
materialmen's liens and to insure completion of the work.
13. ASSIGNMENT AND SUBLETTING. Except as expressly provided below, Tenant
shall not either voluntarily or by operation of law, assign, transfer, mortgage,
pledge, hypothecate or encumber this Lease or any interest therein, and shall
not sublet the said Premises or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person (the employees, agents, servants
and invitees of Tenant excepted) to occupy or use the said Premises, or any
portion thereof, without the written consent of Landlord first had and obtained,
which consent shall not be unreasonably withheld, conditioned or delayed, and a
consent to one assignment, subletting, occupation or use by any other person
shall not be deemed to be a consent to any subsequent assignment, subletting,
occupation or use by another person. Any such assignment or subletting without
such consent shall be void, and shall, at the option of the Landlord, constitute
a default under this Lease. Tenant may, upon written notice to Landlord, but
without the consent of Landlord, (i) transfer (by assignment or sublease, in
whole or in part) this Lease to any parent or affiliate of Tenant or to a wholly
owned subsidiary of Tenant, or (ii) transfer (by assignment or sublease, in
whole or in part) this Lease to any person or entity acquiring, by asset or
stock purchase, merger, consolidation or liquidation, all or substantially all
of Tenant's assets or voting stock, provided that such person or entity assumes
in writing the
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obligations of Tenant under this Lease. Landlord may charge a reasonable fee not
to exceed $1,000 as part of its consent to any assignment, sublease, or
encumbrance.
14. HOLD HARMLESS. Tenant shall indemnify and hold harmless Landlord
against and from any and all claims arising from Tenant's use of the Premises
for the conduct of its business or from any activity, work, or other thing done,
permitted or suffered by the Tenant in or about the Building, and shall further
indemnify and hold harmless Landlord against and from any and all claims arising
from any breach or default in the performance of any obligation on Tenant's part
to be performed under the terms of this Lease, or arising from any act or
negligence of the Tenant, or any officer, agent, employee, guest, or invitee of
Tenant, and from all and against all costs, reasonable attorneys' fees, expenses
and liabilities incurred in or about any such claim or any action or proceeding
brought thereon, and, in any case, action or proceeding be brought against
Landlord by reason of any such claim, Tenant, upon notice from Landlord shall
defend the same at Tenant's expense. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or
injury to persons, in, upon or about the Premises, from any cause other than
Landlord's negligence or willful acts. Landlord or its agents shall not be
liable for any damage to property entrusted to employees of the Building, nor
for loss or damage to any property by theft or otherwise, nor for any injury to
or damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water or rain which may leak from any part of
the Building or from the pipes, appliances or plumbing works therein or from the
roof, street or subsurface or from any other place resulting from dampness or
any other cause whatsoever, unless caused by or due to the negligence of
Landlord, its agents, servants or employees. Landlord or its agents shall not be
liable for interference with the light or other incorporeal hereditament, loss
of business by Tenant, nor shall Landlord be liable for any latent defects in
the Premises or in the Building. Tenant shall give prompt notice to Landlord in
case of fire or accidents in the Premises or in the Building or of defects
therein or in the fixtures or equipment.
15. SUBROGATION. As long as their respective insurers so permit, Landlord
and Tenant hereby mutually waive their respective rights of recovery against
each other for any loss insured by fire, extended coverage and other property
insurance policies existing for the benefit of the respective parties. Each
party shall obtain any special endorsements, if required by their insurer to
evidence compliance with the aforementioned waiver. If one party is unable to
obtain a waiver of subrogation, the other party is not required to maintain
same.
16. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease a policy of comprehensive public
liability insurance with limits not less than $2,000,000, combined single limit,
insuring Landlord and Tenant against any liability arising out of the ownership,
use, occupancy or maintenance of the Premises and all areas appurtenant thereto,
as their interests may appear. The limit of said insurance shall not, however,
limit the liability of the Tenant hereunder. Tenant may carry said insurance
under a blanket policy, providing, however, said insurance by Tenant shall have
a Landlord's protective liability endorsement attached thereto. If Tenant shall
fail to procure and maintain said insurance, Landlord may, but shall not be
required to, procure and maintain same, but at the expense of Tenant after
notifying Tenant and allowing ten (10) business days. Tenant shall deliver to
Landlord prior to occupancy of the Premises certificates evidencing the
existence and amounts of such insurance with named insured as their interests
may appear. No policy shall be cancelable or subject to reduction of coverage
except after thirty (30) days' prior written notice to Landlord.
17. SERVICES AND UTILITIES. Tenant shall contract directly with Public
Service Company of Colorado to provide gas and electric service to the Premises
18. PROPERTY TAXES. Tenant shall pay, or cause to be paid, before
delinquency, any and all taxes levied or assessed and which become payable
during the term hereof upon all Tenant's leasehold improvements, equipment,
furniture, fixtures and personal property located in the Premises; except that
which has been paid for by Landlord, and is the standard of the Building. In the
event any or all of Tenant's leasehold improvements, equipment, furniture,
fixtures and personal property shall be assessed and taxed with the Building,
Tenant shall pay to
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Landlord its share of such taxes within thirty (30) days after receipt by Tenant
from Landlord of a statement in writing setting forth the amount of such taxes
applicable to Tenant's property which statement shall include a copy of the tax
xxxx.
19. RULES AND REGULATIONS. Tenant shall faithfully observe and comply
with the non-discriminatory rules and regulations that Landlord shall, from time
to time, promulgate. Landlord reserves the right, from time to time, to make all
reasonable modifications to said rules. The additions and modifications to those
rules shall be binding upon Tenant upon delivery of a copy of them to Tenant.
Landlord shall not be responsible to Tenant for the nonperformance of any said
rules by any other tenants or occupants. A copy of the current rules and
regulations are attached hereto as Exhibit A.
20. HOLDING OVER. If Tenant remains in possession of the Premises or any
part after the expiration of the term hereof, without the express written
consent of Landlord, such occupancy shall be a tenancy from month-to-month at a
rental in the amount of one and one-half times the last monthly rental, plus all
other charges payable hereunder, and upon all the terms hereof applicable to a
month-to-month tenancy.
21. ENTRY BY LANDLORD. Landlord reserves, and shall during normal
business hours upon reasonable written notice to Tenant and subject to Tenant's
security requirements, as herein defined, have the right to enter the Premises,
inspect the same, supply janitorial service and any other service to be provided
by Landlord to Tenant hereunder, to submit said Premises to prospective
purchasers or during the last six months of the term to prospective tenants, to
post notices of non-responsibility, and to alter, improve or repair the Premises
and any portion of the Building of which the Premises are a part that Landlord
may deem necessary or desirable, without abatement of rent and may for that
purpose in connection with any work to be performed by Landlord under this
Lease, Landlord may erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed, always
providing that the entrance to the Premises shall not be blocked thereby, and
further providing that the business of the Tenant shall not be interfered with
unreasonably. Tenant hereby waives any claim for damages or for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned thereby unless
caused by negligence or willful acts of Landlord. For each of the aforesaid
purposes, Landlord shall, at all times, have and retain a key with which to
unlock all of the doors in, upon and about the Premises, excluding Tenant's
vaults, safes and files and locked documentation room, as defined in Paragraph
31, and Landlord shall have the right to use any and all means which Landlord
may deem proper to open said doors in an emergency, in order to obtain entry to
the Premises without liability to Tenant except for any failure to exercise due
care for Tenant's property. Any entry to the Premises obtained by Landlord by
any of said means, or otherwise shall not, under any circumstances, be construed
or deemed to be a forcible or unlawful entry into, or a detainer of, the
Premises, or an eviction of Tenant from the Premises or any portion thereof.
22. RECONSTRUCTION. In the event the Premises, or the Building of which
the Premises are a part, are damaged by fire or other perils covered by extended
coverage insurance, Landlord agrees to forthwith repair the same to
substantially the same condition as existed immediately prior to such damage;
and this Lease shall remain in full force and effect, except that the Tenant
shall be entitled to a proportionate reduction of the rent while such repairs
are being made, such proportionate reduction to be based upon the extent to
which the damage and the making of such repairs shall materially interfere with
the business carried on by the Tenant in the Premises. If the damage is due to
the fault or neglect of Tenant or its employees, there shall be no abatement of
rent.
In the event the Premises or the Building of which the Premises are a
part are damaged as a result of any cause other than the perils covered by fire
and extended coverage insurance, then Landlord shall forthwith repair the same
within one hundred and fifty (150) days of casualty, provided the extent of the
destruction be less than ten percent (10%) of the then full replacement cost of
the Premises or the Building of which the Premises are a part. In the event the
destruction of the Premises or the Building is to an extent greater than ten
percent (10%) of
8
the full replacement cost, then Landlord shall have the option: (1) to repair or
restore such damage, this Lease continuing in full force and effect, but the
rent to be proportionately reduced as hereinabove in this Article provided; or
(2) give notice to Tenant at any time within thirty (30) days after such damage
terminating this Lease as of the date specified in such notice, which date shall
be no less than thirty (30) and no more than sixty (60) days after the giving of
such notice. In the event of giving such notice, this Lease shall expire and all
interest of the Tenant in the Premises shall terminate on the date so specified
in such notice and the Rent, reduced by a proportionate amount, based upon the
extent, if any, to which such damage materially interfered with the business
carried on by the Tenant in the Premises, shall be paid up to date of said such
termination. Notwithstanding anything to the contrary contained in this Article,
Landlord shall not have any obligation whatsoever to repair, reconstruct or
restore the Premises when the damage resulting from any casualty covered under
this Article occurs during the last twelve (12) months of the term of this Lease
or any extension thereof and in the event of such casualty during the last
twelve (12) months of the term of this Lease either Landlord or Tenant shall
have the right to terminate this Lease by giving written notice to the other
party within thirty (30) days of such casualty.
Landlord shall not be required to repair any injury or damage by fire
or other cause, or to make any repairs or replacements of any panels,
decoration, office fixtures, railings, floor coverings, partitions, or any other
property installed in the Premises by Tenant unless covered by Landlord's
insurance as part of the building.
The Tenant shall not be entitled to any compensation or damages from
Landlord for loss of the use of the whole or any part of the Premises, or
Tenant's personal property, unless caused by Landlord, or, subject to Article
21, any compensation or damages for inconvenience or annoyance occasioned by
such damage, repair, reconstruction or restoration.
23. DEFAULT. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease:
a. The vacating or abandonment of the Premises by Tenant, without
payment of rent.
b. The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of ten (10) days after written notice
thereof by Landlord to Tenant.
c. The failure by Tenant to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed by
the Tenant, other than described in Article 23.b above, where such failure shall
continue for a period of thirty (30) days after written notice thereof by
Landlord to Tenant; provided, however, that if the nature of Tenant's default is
such that more than thirty (30) days are reasonably required for its cure, then
Tenant shall not be deemed to be in default if Tenant commences such cure within
said thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
d. The making by Tenant of any general assignment or general
arrangement for the benefit of creditors; or the filing by or against Tenant of
a petition to have Tenant adjudged a bankrupt, or a petition of reorganization
or arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed within sixty [60] days); or
the appointment of a trustee or a receiver to take possession of substantially
all of Tenant's assets located at the Premises or of Tenant's interest in this
Lease, where possession is not restored to Tenant within thirty (30) days; or
the attachment, execution or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where such seizure is not discharged in thirty (30) days.
e. If Landlord is in default in the performance of any obligation
under this Lease on the part of Landlord to be performed and such default
continues for a period of thirty (30) days after Tenant's written notice to
Landlord specifying the nature of the default, then Tenant may exercise any
right or remedy it may possess at law or equity, which is not otherwise
9
waived in this Lease. If the default set forth in Tenant's notice cannot
reasonably be cured within thirty (30) days, then Landlord shall not be deemed
to be in default if (i) Landlord notifies Tenant in writing that it will cure
the default, (ii) commences to cure the default within such thirty (30)-day
period, and (iii) proceeds diligently and in good faith thereafter to cure such
default and does cure such default within a reasonable time.
24. REMEDIES IN DEFAULT. In the event of any such default or breach by
Tenant, Landlord may at any time thereafter, with or without notice or demand,
and without limiting Landlord in the exercise of a right or remedy which
Landlord may have by reason of such default or breach:
a. Terminate Tenant's right to possession of the Premises by any
lawful and peaceful means, in which case this Lease shall terminate and Tenant
shall immediately surrender possession of the Premises to Landlord. In such
event Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default including, but not limited to, the cost
of recovering possession of the Premises; expenses of reletting, including
necessary and reasonable expenses incurred in connection with renovation and
alteration of the Premises, reasonable attorneys' fees, any real estate
commission actually paid; the worth at the time of award by the court having
jurisdiction thereof of the amount by which the unpaid rent for the balance of
the term after the time of such award exceeds the amount of such rental loss for
the same period that Tenant proves could be reasonably avoided; that portion of
the leasing commission paid by Landlord and applicable to the unexpired term of
the Lease. Unpaid installments of rent or other sums shall bear interest from
the date due at the rate of twenty percent (20%) per annum. In the event Tenant
shall have abandoned the Premises without payment of rent, Landlord shall have
the option of (a) taking possession of the Premises and recovering from Tenant
the amount specified in this paragraph, or (b) proceeding under the provisions
of the following Article 24.b.
b. Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant shall have abandoned the
Premises. In such event, Landlord shall be entitled to enforce all of Landlord's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
c. Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decision of the State in which the Premises are
located.
25. EMINENT DOMAIN. If more than twenty-five percent (25%) of the
Premises shall be taken or appropriated by any public or quasi-public authority
under the power of eminent domain, either party hereto shall have the right, at
its option, to terminate this Lease by giving written notice to the other party,
and Landlord shall be entitled to any and all income, rent, award, or any
interest therein whatsoever which may be paid or made in connection with such
public or quasi-public use or purpose, and Tenant shall have no claim against
Landlord for the value of any unexpired term of this Lease. If either less than
or more than twenty-five percent (25%) of the premises is taken, or neither
party elects to terminate as herein provided, the rental thereafter to be paid
shall be proportionately reduced. If more than ten percent (10%) of the Building
other than the Premises may be so taken or appropriated, Landlord shall have the
right at its option to terminate this Lease by giving thirty (30) days written
notice to Tenant and shall be entitled to the entire award as above provided.
Tenant shall, however, have the right to pursue a separate claim for any damage
suffered as a result of such taking.
26. ESTOPPEL STATEMENT. Landlord and Tenant shall at any time and from
time to time upon not less than ten (10) business days' prior written notice
from the other party execute, acknowledge, and deliver to the other party a
statement in writing, (a) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and
certifying that this Lease as so modified, is in full force and effect), and the
date to which the rental and other charges are paid in advance, if any, and (b)
acknowledging that there are not, to Tenant's or Landlord's knowledge, as
appropriate, any uncured defaults on the part of the other party hereunder, or
specifying such defaults if any are claimed. Any such
10
statement may be relied upon by any prospective purchaser or encumbrancer of all
or any portion of the real property of which the Premises are a part.
Said Tenant Estoppel Statement shall be substantially in the form
attached hereto as Exhibit B.
27. PARKING. Tenant shall have the right to use all of the parking
facilities of the Building.
28. AUTHORITY OF PARTIES.
a. Corporate Authority. If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of the
corporation, in accordance with a duly adopted resolution of the board of
directors of said corporation or in accordance with the bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
b. Limited Partnerships. If the Landlord herein is a limited
partnership, it is understood and agreed that any claims by Tenant on Landlord
shall be limited to the assets of the limited partnership, and furthermore,
Tenant expressly waives any and all rights to proceed against the individual
partners or the officers, directors or shareholders of any corporate partner,
except to the extent of their interest in said limited partnership.
c. Limited Liability Company. If the Landlord herein is a limited
liability company, it is understood and agreed that any claims by Tenant on
Landlord shall be limited to the assets of the limited liability company, and
furthermore, Tenant expressly waives any and all rights to proceed against
individual members or managing members, except to the extent of their interest
in said limited liability company.
29. GENERAL PROVISIONS.
a. Plats and Riders. Clauses, plats, exhibits and riders, if any,
signed by the Landlord and the Tenant and endorsed on or affixed to this Lease
are a part hereof.
b. Waiver. The waiver by Landlord of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of the Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of the acceptance of
such rent.
c. Notices. All notices and demands which may or are to be required
or permitted to be given by either party to the other hereunder shall be in
writing. All notices and demands by the Landlord to the Tenant shall be sent by
a) United States Mail, postage prepaid, or b) nationally recognized overnight
bonded courier, addressed to the Tenant at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX
00000, or to such other place as Tenant may, from time to time, designate in a
notice to the Landlord. All notices and demands by the Tenant to the Landlord
shall be sent by a) United States Mail, postage prepaid, addressed to the
Landlord at the Office of the Building, or to such other person or place as the
Landlord may, from time to time, designate in a notice to the Tenant.
d. Joint Obligation. If there be more than one Tenant the
obligations hereunder imposed upon Tenants shall be joint and several.
e. Marginal Headings. The marginal headings and Article titles to
the Articles of this Lease are not a part of this Lease and shall have no effect
upon the construction or interpretation of any part hereof.
11
f. Time. Time is of the essence of this Lease and each and all of
its provisions in which performance is a factor.
g. Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of the parties hereto.
h. Recordation. Neither the Landlord nor Tenant shall record this
Lease or a short form memorandum hereof without the prior written consent of the
other party.
i. Quiet Possession. Upon Tenant paying the rent reserved hereunder
and observing and performing all of the covenants, conditions and provisions of
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire term hereof, subject to all the
provisions of this Lease.
j. Late Charges. Tenant hereby acknowledges that late payment by
Tenant to Landlord of rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed upon
Landlord by terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or of a sum due from Tenant shall not be
received by Landlord or Landlord's designee within five (5) business days after
said amount is due, then Tenant shall pay to Landlord a late charge equal to
five percent (5%) of such overdue amount. The parties hereby agree that such
late charges represent a fair and reasonable estimate of the cost that Landlord
will incur by reason of the late payment by Tenant. Acceptance of such late
charges by the Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder.
k. Prior Agreements. This Lease contains all of the agreements of
the parties hereto with respect to any matter covered or mentioned in this
Lease, and no prior agreements or understanding pertaining to any such matters
shall be effective for any purpose. No provision of this Lease may be amended or
added to except by an agreement in writing signed by the parties hereto or their
respective successors in interest. This Lease shall not be effective or binding
on any party until fully executed by both parties hereto.
l. Attorneys' Fees. In the event of any action or proceeding brought
by either party against the other under this Lease, the prevailing party shall
be entitled to recover all costs and expenses, including the fees of its
attorneys in such action or proceeding in such amount as the court may adjudge
reasonable as attorneys' fees.
m. Sale of Premises by Landlord. In the event of any sale of the
Building, and assignment of Tenant's Security Deposit to Purchaser, Landlord
shall be and is hereby entirely freed and relieved of all liability under any
and all of its covenants and obligations contained in or derived from this Lease
arising out of any act, occurrence or omission occurring after the consummation
of such sale; and the purchaser, at such sale or any subsequent sale of the
Premises, shall be deemed, without any further agreement between the parties or
their successors in interest or between the parties and any such purchaser, to
have assumed and agreed to carry out any and all of the covenants and
obligations of the Landlord under this Lease.
n. Subordination, Non-Disturbance and Attornment. Upon request of
the Landlord, Tenant will, in writing, subordinate its rights hereunder to the
lien of any first mortgage or first deed of trust to any bank, insurance company
or other lending institution, now or hereafter in force against the land and
Building of which the Premises are a part, and upon any buildings hereafter
placed upon the land of which the Premises are a part, and to all advances made
or hereafter to be made upon the security thereof.
In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or deed of trust
made by the Landlord covering
12
the Premises, the Tenant shall attorn to the purchaser upon any such foreclosure
or sale and recognize such purchaser as the Landlord under this Lease.
Notwithstanding anything to the contrary contained herein, Tenant
shall only be obligated under this Section 29(n) if such bank, insurance company
or other lending institution or purchaser upon any such foreclosure or sale (a)
recognizes Tenant's interest under this Lease, (b) agrees that, so long as
Tenant is not in default under this Lease beyond any applicable cure periods,
not to disturb Tenant's possession of the Premises, and (c) executes and
delivers a subordination, non-disturbance and attornment agreement substantially
in the form attached hereto as Exhibit C.
o. Name. Tenant shall not use the name of the Building or of the
development in which the Building is situated for any purpose other than as an
address of the business to be conducted by the Tenant in the Premises.
p. Separability. Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any other
provision hereof and such other provision shall remain in full force and effect.
q. Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
r. Choice of Law. This Lease shall be governed by the laws of the
State of Colorado.
s. Signs and Auctions. Tenant shall not place any sign upon the
Premises or Building or conduct any auction thereon without Landlord's prior
written consent which shall not be unreasonably withheld, conditioned or
delayed.
t. Landlord's Liability. The liabilities of the partners or members
of the Landlord pursuant to this Lease shall be limited to the assets of the
partnership or limited liability company, and Tenant, its successors and assigns
hereby waive all right to proceed against any of the partners, members, or the
officers, shareholders, or directors of any corporate partner of Landlord. The
term "Landlord," as used in this article, shall mean only the owner or owners at
the time in question of the fee title or an interest in a ground lease of the
building. Notwithstanding anything to the contrary contained herein, the extent
of the Landlord's liability under this Lease shall be limited to the property of
which the Premises herein are a part, and Tenant shall not seek any personal
liability against Landlord or any of Landlord's partners or members.
u. Waiver of Jury Trial. Landlord and Tenant waive trial by jury in
any action, proceeding or counterclaim brought by either of the parties to this
Lease against the other on any matters whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
of occupancy of the Premises, or any other claims (except claims for personal
injury or property damage), and any emergency statutory or any other statutory
remedy.
v. Arbitration. Except for an action to gain possession of the
Premises and except as provided below, any and all disputes arising under or
related to this Agreement which cannot be resolved through negotiations between
the parties shall be submitted to binding arbitration. If the parties fail to
reach a settlement of their dispute within fifteen (15) days after the earliest
date upon which one of the parties notified the other(s) of its desire to
attempt to resolve the dispute, then the dispute shall promptly be submitted to
arbitration by a single arbiter through the Judicial Arbiter Group ("JAG"), any
successor of the Judicial Arbiter Group, or any similar arbitration provider who
can provide a former judge to conduct such arbitration if JAG is no longer in
existence, or an arbiter appointed by the court. The arbiter shall be selected
by JAG or the court on the basis, if possible, of his or her expertise in the
subject matter(s) of the dispute. The decision of the arbiter shall be final,
nonappealable and binding upon the parties, and it may be entered in any court
of competent jurisdiction. The arbitration shall take place in Boulder,
13
Colorado. The arbitrator shall be bound by the laws of the State of Colorado
applicable to the issues involved in the arbitration and all Colorado rules
relating to the admissibility of evidence, including, without limitation, all
relevant privileges and the attorney work product doctrine. All such discovery
shall be completed in accordance with the time limitations prescribed in the
Colorado Rules of Civil Procedure, unless otherwise agreed by the parties or
ordered by the arbitrator on the basis of strict necessity adequately
demonstrated by the party requesting an extension or reduction of time. The
arbitrator shall have the power to grant equitable relief where applicable under
Colorado law. The arbitrator shall issue a written opinion setting forth her or
his decision and the reasons therefor within thirty (30) days after the
arbitration proceeding is concluded. The obligation of the parties to submit any
dispute arising under or related to this Agreement to arbitration as provided in
this Section shall survive the expiration or earlier termination of this
Agreement. Notwithstanding the foregoing, either party may seek and obtain an
injunction or other appropriate relief from a court to preserve or protect the
status quo with respect to any matter pending conclusion of the arbitration
proceeding, but no such application to a court shall in any way be permitted to
stay or otherwise impede the progress of the arbitration proceeding.
w. Financial Statements. Tenant shall provide their most recent
annual report, including statements of income and expense and statements of net
worth ("financial statements") within 15 business days following the written
request of Landlord. Landlord my request said annual report once during any
twelve (12) month period. Said annual report shall be verified as being true and
correct and Landlord agrees to keep said annual report confidential, but may use
the annual report for purposes of obtaining financing upon the property. At the
time Landlord requests annual financial statements from Tenant for financing
purposes, Landlord shall advise Tenant to whom the annual report will be
submitted and Landlord shall, if requested to do so by Tenant, obtain from such
individual or entity a written agreement which shall provide that said annual
report will be and shall remain confidential. Within fifteen (15) days after the
execution of this Lease, Tenant shall submit to Landlord its most recent
financial statements.
30. BROKERS. Tenant warrants that it has had no dealings with any real
estate brokers or agents in connection with the negotiation of this Lease
excepting Xxxxxxxx Commercial, LLC and The Colorado Group, Inc. and it knows of
no other real estate broker or agent who is entitled to a commission in
connection with this Lease.
31. HAZARDOUS MATERIALS AND ENVIRONMENTAL CONSIDERATIONS
a. Tenant covenants and agrees that Tenant and its agents, employees,
contractors and invitees shall comply with all Hazardous Materials Laws (as
hereinafter defined). Without limiting the foregoing, Tenant covenants and
agrees that it will not use, generate, store or dispose of, nor permit the use,
generation, storage or disposal of Hazardous Materials (as hereinafter defined)
on, under or about the Leased Premises, nor will it transport or permit the
transportation of Hazardous Materials to or from the Leased Premises, except in
full compliance with any applicable Hazardous Materials Laws. Any Hazardous
Materials located on the Leased Premises shall be handled in an appropriately
controlled environment which shall include the use of such equipment (at
Tenant's expense) as is necessary to meet or exceed standards imposed by any
Hazardous Materials Laws and in such a way as not to interfere with any other
tenant's use of its premises. Upon breach of any covenant contained herein,
Tenant shall, at Tenant's sole expense, cure such breach by taking all action
prescribed by any applicable Hazardous Materials Laws or by any governmental
authority with jurisdiction over such matters.
b. Tenant shall inform Landlord at any time of (i) any Hazardous
Materials it intend to use, generate, handle, store or dispose of, on or about
or transport from, the Leased Premises and (ii) of Tenant's discovery of any
event or condition which constitutes a violation of any applicable Hazardous
Materials Laws. Tenant shall provide to Landlord copies of all communications to
or from any governmental authority or any other party relating to Hazardous
Materials affecting the Leased Premises.
c. Tenant shall indemnify and hold Landlord harmless from any and all
claims, judgements, damages, penalties, fines, costs, liabilities, expenses or
losses (including
14
without limitation, diminution on value of the Leased Premises, damages for loss
or restriction on use of all or part of the Leased Premises, sums paid in
settlement of claims, investigation of site conditions, or any cleanup, removal
or restoration work required by any federal, state or local governmental agency,
attorney's fees, consultant fees and expert fees) which arise as a result of or
in connection with any breach of the foregoing covenants or any other violation
contained herein shall also accrue to the benefit of the employees, agents,
officers, directors and/or partners of Landlord.
d. Upon termination of the Lease and/or vacation of the Leased
Premises, Tenant shall properly remove all Hazardous Materials and shall provide
to Landlord an environmental audit report, prepared by a professional consultant
satisfactory to Landlord and at Tenant's sole expense, certifying that the
Leased Premises have not been subjected to environmental harm caused by Tenant's
use and occupancy of the Leased Premises; provided, however, Landlord reasonably
believes that such a report is necessary. Landlord shall grant to Tenant and its
agents or contractors such access to the Leased Premises as is necessary to
accomplish such removal and prepare such report.
e. "Hazardous Materials" shall mean (a) any chemical, material,
substance or pollutant which poses a hazard to the Leased Premises or to persons
on or about the Leased Premises or would cause a violation of or is regulated by
any Hazardous Materials Laws, and (b) any chemical, material or substance
defined as or included in the definitions of "hazardous substances", "hazardous
wastes", "hazardous materials", "extremely hazardous waste", "restricted
hazardous waste", "toxic substances", "regulated substances", or words of
similar import under any applicable federal, state or local law or under the
regulations adopted or publications promulgated pursuant thereto, including, but
not limited to, the Comprehensive Environmental Response. Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601, et seq.; the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. Sec. 1801, et seq.; the
Resource Conservation and Recover Act, as amended, 42 U.S.C. Sec. 6901, et seq.;
the Solid Waste Disposal Act, 42 U.S.C. Sec. 6991 et seq.; the Federal Water
Pollution Control Act, as amended, 33 U.S.C. Sec. 1251, et seq., of the Colorado
Revised Statutes. "Hazardous Materials Laws" shall mean any federal, state or
local laws, ordinances, rules, regulations, or policies (including, but not
limited to, those laws specified above) relating to the environment, health and
safety or the use, handling, transportation, production, disposal, discharge or
storage of Hazardous Materials, or to industrial hygiene or the environmental
conditions on, under or about the Leased Premises. Said term shall be deemed to
include all such laws as are now in effect or as hereafter amended and all other
such laws as may hereafter be enacted or adopted during the term of this Lease.
f. All obligations of Tenant hereunder shall survive and continue
after the expiration of this Lease or its earlier termination for any reason.
g. Tenant further covenants and agrees that it shall not install any
storage tank (whether above or below the ground) on the Leased Premises without
obtaining the prior written consent of the Landlord, which consent may be
conditioned upon further requirements imposed by Landlord with respect to, among
other things, compliance by Tenant with any applicable laws, rules, regulations
or ordinances and safety measures or financial responsibility requirements.
32. MISCELLANEOUS
a. At Tenant's option, Landlord shall provide janitorial services to
the Premises at Tenant's cost and shall xxxx Tenant therefor monthly.
b. Landlord shall, at Landlord's expense construct certain build-out
improvements to the Premises, including construction of suspended ceilings and
outside and partitioning walls; installation of carpeting; painting;
installation of fire sprinkling system; HVAC, and lighting systems; and other
improvements as agreed upon in accordance with plans and specifications
("Plans") to be approved by Landlord and Tenant, and attached hereto as Exhibit
D (hereinafter collectively referred to as the "Tenant Improvement"). Landlord
and
15
Tenant will use their best efforts to prepare and approve construction drawings
and specifications and approve them in writing within twenty-one (21) days after
the date of this Lease.
Basic rental as set forth in Paragraph 5(a) is based upon Landlord
completing the Tenant Improvements in accordance with the Plans. Landlord's
allowance for Tenant Improvements is $911,100.00. To the extent that the cost of
said improvements is less than or exceeds $911,110.00, basic monthly rental
shall increase or decrease by amortizing the increase or decrease over ten (10)
years at the interest rate Landlord is able to obtain on the permanent financing
plus 300 basis points, but not more than 11% per annum, or Tenant has the option
of paying up front any amount in excess of the $911,100.00 allowance.
c. Tenant has the right, within 10 days prior to possession, to
inspect the Premises after Landlord completes the Tenant Improvements. Tenant
has the right to create a "punch list" of unfinished items based on Tenant's
pre-possession inspection and to add to the "punch list" for a period of 30 days
after taking possession. Landlord is obligated to complete items on the "punch
list" within 30 days.
d. Upon full and complete performance of the terms, covenants and
conditions herein contained by Tenant and payment of all rental due under the
terms hereof, Tenant shall be given the option to renew this Lease for two
additional terms of five (5) years. In the event Tenant desires to exercise said
option, Tenant shall give written notice of such fact to Landlord not less than
one hundred eighty (180) days prior to the expiration of the then current term
of this Lease. In the event of such exercise, this Lease shall be deemed to be
extended for the additional period; provided, however, the Landlord shall have
the option of increasing basic monthly rental under the provisions of Paragraph
5(a) hereof to the then existing market rate for similar space in the
Louisville, Colorado vicinity.
e. Tenant has the right to install up to five-7 foot satellite dishes
upon the roof without Landlord's written consent as long as they meet zoning and
subdivision covenant requirements. Any additional satellite dishes shall require
Landlord's written consent. Tenant shall have the obligation to remove said
satellite dishes upon termination of the Lease and pay for the repairs caused by
the installation and removal.
f. Tenant has the right to install a battery and an electrical
generator backup to service its data center without the Landlord's written
consent as long as they meet zoning and subdivision covenant requirements.
Tenant shall have the obligation to remove said generator upon termination of
the Lease and pay for the repairs caused by the installation and removal.
g. This Lease supercedes that Lease between the parties for the
Property dated January 13, 1999.
LANDLORD: TENANT:
BLC PROPERTIES, LLC VSTREAM, INCORPORATED
By:/s/ Xxxxx X. Xxxxxxxx By:/s/ Xxxxx X. XxXxxx
-------------------------------- --------------------------------
Xxxxx X. Xxxxxxxx Xxxxx X. XxXxxx
Manager CFO/COO
0000 Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Tax I.D. 00-0000000 Tax I.D. 00-0000000
16
