FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is made as of October 15, 1997, by
CARRAMERICA REALTY, L.P., a Delaware limited partnership ("Landlord"), and TIME
WARNER COMMUNICATIONS HOLDINGS INC.. a Delaware corporation ("Tenant").
RECITALS
Quebec Court Joint Venture No. 2, as landlord, and Intelligent
Advanced Systems, Inc., as tenant, entered into a Lease dated
June 3, 1994 (the "Lease") for the premises commonly known as
Quebec Court I, 5700 South Quebec Street, Englewood, Colorado.
Landlord (as successor to Quebec Court Joint Venture No. 2 under
the Lease), Xxxxxx Micro Inc. (as successor to Intelligent
Advanced Systems, Inc. under the Lease), and Tenant have entered
into an Agreement for Assignment of Lease of this date pursuant
to which Xxxxxx Micro Inc. has assigned its interest in the Lease
to Tenant effective October 1, 1997.
Landlord and Tenant wish to extend the Lease Term (as that term
is defined in the Lease) and to amend the Lease in other respects
effective October 1, 1997. Accordingly, they agree:
1. Amendment of Paragraph 1.
a. Paragraph 1.A is amended to read:
A. "Leased Premises" shall mean the building (consisting of 3
floors) shown as such on Exhibit A attached hereto and made a part
hereof.
b. Paragraph 1.D is amended to read:
D. "Lease Term" shall mean the period beginning on the Lease
Commencement Date and ending on March 31, 2005.
c. Paragraph 1.E is amended by the addition of this text at the
end:
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Period Monthly Annual Rent Per Square Feet
Rent Square Foot
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1/1/02-12/31/02 $184,166.67 $17.00 130,000
1/1/03- 3/31/05 $195,000 $18.00 130,000
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d. Paragraph 1.F is amended to read:
F. "Tenant's Total Square Footage" shall mean 130,000 Rentable
Square Feet (RSF). "Tenant's Pro Rata Share" shall mean one hundred
per cent 100%.
e. Paragraph 1.H is amended to read:
H. "The Broker of Record" shall mean Xxxxxxxx Xxxx Denver, Inc.,
as Tenant's agent, with respect to this First Amendment. There is
no broker or agent working on behalf of Landlord for any purpose at
this time.
f. Paragraph 1.I is amended to read:
I. During the term of the Lease, including any renewal or
extension, Tenant shall have the exclusive right, at no cost to
Tenant, except as otherwise noted herein, to use the entire parking
area of the Building, except those spaces designated for the use of
Condo Unit A ("Condo Unit A" being the fourth level of the building,
which is not subject to the Lease), subject to the rights of
Landlord, as noted below, to relocate all or any portion of Tenant's
parking during any period of construction of a parking garage on
that portion of the Building parking area indicated by crosshatching
on Exhibit M attached hereto.
2. Deletion of Paragraph 2.D. Paragraph 2.D is deleted.
3. Amendment of Paragraph 3A. Paragraph 3.A is amended by the
deletion of the third paragraph of Paragraph 3.A, commencing with, "If the
Tenant is ever required to pay taxes."
4. Amendment of Paragraph 3.B. Paragraph 3.B is amended to read:
B. In addition to Rent, Tenant shall pay Tenant's Pro Rata Share
of Building Operating Costs" in excess of $6.00 per rentable square
foot. Building Operating Costs shall mean all reasonable expenses,
costs and disbursements, which Landlord shall pay or accrue because
of, or in connection with, the management (but management fees will
not exceed 4% of annual Rent), maintenance, repair, insurance and
operation of the Building, with books and records kept in accordance
with GAAP, including, but not limited to: real estate taxes,
assessments and special assessments, payment of which shall be
spread over the longest period permitted by the taxing authority;
use, sales, or any other taxes (except income taxes) based on rents;
personal property taxes on personal property used in the operation
of the Building; Landlord's insurance, as described in Paragraph 6
below; utilities not separately metered to individual tenants; costs
of any capital improvements which are primarily intended to reduce
Building Operating Costs or improve safety, and those made to keep
the Building in compliance with governmental requirements applicable
from time to time (collectively, "Included Capital Items");
maintenance and repairs of Common Areas; costs of roof renovation
(which shall be amortized over its expected life); janitorial
service; operating supplies; property management; Building Services;
snow removal; landscaping; costs of leasing or amortizing plants,
shrubs, trees, or flowers utilized in the Common Areas and normal
maintenance thereof; rubbish removal; tools and equipment used for
the daily operation of the Building; air conditioning and heating,
elevator repair and maintenance, repair, resurfacing and restriping
of parking areas; repair and replacement of car stops and signage;
security; and wages, payroll taxes, welfare and disability benefits
reasonably incurred in the operation of the Building.
Building Operating Costs, which shall include roof renovation,
resurfacing of parking areas, Included Capital Expenses, life safety
systems requested by Tenant, and no other capital improvements,
shall be amortized by Landlord, together with an amount equal to
interest at ten percent (10%) per annum, over the estimated useful
life of such item and
such amortized costs are to be included in Building Operating
Costs for that portion of the useful life of such item which falls
within the term of the Lease. If capital improvements which are
primarily intended to reduce Building Operating Costs are undertaken
by Landlord without the agreement or consent of Tenant, such capital
improvements shall be included in Building Operating Costs only to
the extent of any demonstrated savings in Building Operating Costs.
Notwithstanding anything to the contrary contained in the Lease,
exclusions to costs incurred in the operation of the Building are:
1. Interest, principal, or other payments on account of any
indebtedness that is secured by any encumbrance on any part of
the Property, rental or other payments under any ground lease, or
payments in the nature of returns on or of equity of any kind.
2. Costs of selling, syndicating, financing, mortgaging, or
hypothecating any part of or interest in the Property.
3. Franchise or income taxes imposed on Landlord.
4. Depreciation, reserves of any kind, including replacement
reserves and reserves for bad debts or lost rent.
5. Landlord's rental and other occupancy costs.
6. Wages and salaries (including employee benefits) of executive
or other personnel above the grade of Director of Operations.
7. Landlord's overhead costs, including salaries, benefits and
associated payroll taxes, equipment, supplies, accounting and
legal fees and other administrative costs associated with
Landlord's business other than those directly related to
operation and maintenance of the Building.
8. Costs of employee training and development, seminars,
conventions, club memberships and dues, meals (unless required by
a collective bargaining agreement) and entertainment of any kind,
food, coffee, sodas and bottled water.
9. Fees or other costs for professional services provided by
lawyers, space planners, architects, engineers, and other similar
professional consultants, real estate commissions, and marketing
and advertising expenses incurred with regard to leasing the
Building or portions thereof.
10. Costs of defending or prosecuting litigation with any party,
including tenants,
mortgagees, or others, unless a favorable judgment would reduce
or avoid an increase in Building Operating Costs, or unless the
litigation is to enforce compliance with Building Rules or other
standards or requirements for the general benefit of tenants in
the Building, or unless Landlord has proceeded in a manner in
which a prudent Landlord in similar circumstances would have
proceeded in connection with such litigation.
11. Costs incurred as a result of Landlord's violation of any
lease, contract, law, or ordinance, including fines and
penalties, unless Landlord has proceeded in a manner in which a
prudent landlord in similar circumstances would have proceeded.
12. Late charges, interest or penalties of any kind for late or
other improper payment of any public or private obligation,
including ad valorem taxes.
13. Costs for which Landlord receives reimbursement from any
sources, including costs covered by proceeds of insurance,
condemnation awards, or court judgments, amounts specifically
billed to or payable by individual tenants, costs covered by any
manufacturer's, contractor's or other warranty, or any other cost
for which Landlord is entitled to reimbursement.
14. Costs related to any building or land not included in the
Leased Premises, including any allocation of costs incurred on a
shared basis, such as centralized accounting, unless the
allocation is made on a reasonable and consistent basis that
fairly reflects the share of such costs reasonably attributable
to the Building.
15. The part of any cost or other sum paid to any affiliate of
Landlord or to any other party that may materially exceed the
fair market price or cost generally payable for comparable goods
or services in the area.
16. The cost of any electric current reimbursed directly to
Landlord by any tenant through metering or any other means.
17. The cost of correcting defects in new capital improvements in
the Building, parking garage (if constructed) or other part of
the Demised Premises for one year after the completion of
construction of such capital improvements.
18. Capital improvements (other than Included Capital Items or
other items which may be capital improvements, such as roof
renovations and parking lot resurfacing, which are permitted
under Paragraph 3B) and tenant improvements costs.
19. The cost of new art work.
5. Amendment of Paragraph 5. A new paragraph is added to the end of
Paragraph 5 to read:
Tenant may from time to time require that any services and goods
whose cost is included in Building Operating Costs be provided by a
reputable, capable supplier or vendor designated by Tenant for
Landlord's approval which shall not be unreasonably withheld,
conditioned or delayed. Landlord will not add overhead charges to
the costs of goods or services provided to Tenant unless the
provision of such good or service is made at Tenant's request and
the overhead charge is disclosed to Tenant before the cost is
incurred.
6. Amendment of Paragraph 6.
a. Paragraph 6.A(2) is hereby amended to read:
(2) Comprehensive public liability insurance (including bodily
injury and property damage insurance) for the Building with a
combined single limit for property damage and bodily injury of
$2,000,000 per occurrence; and
b. Paragraph 6.B(1) is hereby amended as follows: The phrase
"Landlord's damage to property" is deleted from line 4 thereof;
c. Paragraph 6.B(2) is hereby amended as follows
(I) by the deletion of 'Workmen's" and the substitution of
"Workers" in its place in the first line thereof; and
(Ii) by the addition, at the end of the last sentence of the
paragraph which begins, "Landlord's and Landlord's mortgagee,"
of the following phrase: "except in the case of Landlord's
gross or sole negligence."
7. Amendment of Paragraph 10. These provisions are added at the end
of Paragraph 10:
At its expense, Tenant may make alterations or improvements to
the Building and the systems only with Landlord's prior consent,
which consent shall not be unreasonably withheld, delayed or
conditioned. Landlord will be deemed to be acting reasonably in
withholding its consent for any improvements or alterations which
impact base structural components or systems of the Building, are
visible from the exterior of the Building, or are visible on the
roof of the Building, unless screened.
Tenant will have the right to select and contract with its own
designers, architects, contractors and vendors subject to Landlord's
approval which Landlord will not unreasonably withhold, delay or
condition.
Tenant shall reimburse Landlord for actual costs incurred for
review of the plans and all other items submitted by Tenant for
Landlord's review.
All work shall be performed in a good and workmanlike manner,
meeting the standard for construction and quality of materials in
the
Building, and shall comply with all insurance requirements and all
applicable governmental laws, ordinances and regulations.
Tenant shall perform all work in compliance with Landlord's
"Policies, Rules and Procedures for Construction Projects", a
current copy of which is attached as Exhibit N. as such policies are
in effect at the time the improvements and alterations are
performed.
Tenant shall permit Landlord to inspect all work. Landlord may
charge an inspection fee to reimburse its costs of inspection.
Landlord's inspection of the work and review and approval of the
plans shall not make Landlord liable to Tenant or to any third party
for any defect or failure of such plans or work.
Upon final completion of the improvements or alterations, Tenant
shall furnish Landlord with contractor's affidavits and full and
final lien waivers, as-built plans and specifications, and receipted
bills covering all labor and materials, and all other close-out
documentation required in Landlord's "Policies, Rules and Procedures
for Construction Projects."
8. Amendment of Paragraph 12D. Paragraph 12D is amended by the
substitution of "two full floors" for greater than 50%" in line one.
9. Deletion of Paragraph 15. Paragraph 15 is deleted.
10. Deletion of Paragraph 16. Paragraph 16 is deleted.
11. Amendment of Paragraph 18. The phrase "After HRCC vacates the
Building," is deleted.
12. Amendment of Paragraph 20. A new sentence is added at the end of
the first paragraph of Paragraph 20 to read:
All signs and symbols placed by Tenant on or about the exterior of
the Leased Premises, including, without limitation, monument signs
and directional signage, shall be substantially in accordance with
Landlord's standards for corporate signage, examples of which are
set forth on Exhibit O attached hereto.
A new sentence is added at the end of Paragraph 20 to read:
At no cost to Landlord, Landlord will cooperate with Tenant's
efforts to obtain variances from applicable ordinances in order to
install additional signage. Landlord shall be reimbursed by Tenant
for any out of pocket expenses incurred by Landlord in connection
with Tenant's efforts to obtain such variances.
13. Amendment to Paragraph 21. The last paragraph beginning,
"Notwithstanding anything to the contrary" and ending "under this Lease" is
deleted.
14. Amendment to Paragraph 22. A new sentence is added at the end of
Paragraph 22 to read:
The property subject to Paragraph 22 includes without limitation
the property set forth on Exhibit L to the Lease.
15. Amendment of Paragraph 26. The second sentence is amended to
read:
This Lease shall not be amended or modified except in writing by
both parties.
16. Amendment of Paragraph 27. Paragraphs A, B and C are amended to
read:
A. If intended for Landlord:
CarrAmerica Realty Corp.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx Xxxxxxx, XX 00000
Attention: Market Office
With a copy to:
CarrAmerica Realty Corp.
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Lease Administration
B. If intended for Tenant:
Time Warner Communications Holdings Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Attention: Vice President, Finance
C. With a copy to:
Time Warner Communications Holdings Inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx, XX 00000
Attention: Legal Department
17. Amendment of Paragraph 31.
a. Paragraph 31(1)(ii) is amended to read:
(ii) the street address of the Building if required to do so
by an appropriate governmental authority.
b. Paragraph 31(2) is amended to read:
(2) Tenant shall have the right, at Tenant's sole cost and
expense to (a) place identification signage on the fascia of the
Building; and (b) have exclusive use of the existing monument
sign (except as indicated below), so long as Tenant (i) leases
75% of the Building; (ii) is not in default under the Lease;
(iii) has obtained Landlord's consent which will not be
unreasonably withheld; and (iv) acts in compliance with
municipal codes and ordinances. Landlord shall have the right,
at its sole cost and expense, to replace the existing monument
sign, and shall have the right to be identified on the monument
sign, in lettering which shall in no event be larger in size
than lettering identifying Tenant. Tenant's signage must be
substantially in conformance with Landlord's standards for
corporate signage, examples of which are set forth on Exhibit O.
18. Amendment of Paragraph 42. Paragraph 42 is amended to read:
42. Guaranty. Tenant agrees that at the time of the execution of
this First Amendment to Lease, Time Warner Entertainment
Company, L.P. shall provide a Guaranty of Office Lease and
Promise to Pay and Perform to Landlord in the form provided in
Exhibit G attached hereto and made a part hereof.
19. Addition of Paragraph 45. A new Paragraph 45: is added to read:
"45. Parking Garage. Landlord shall have the right in its sole
discretion and at its sole cost and expense, to construct a parking
garage on all or any portion of the site approximately as designated
on Exhibit M so long as, upon commencement of construction, Landlord
diligently pursues completion of the parking garage and
Landlord avoids unreasonable inconvenience to Tenant by meeting the
following conditions:
(i) Landlord shall provide interim parking to Tenant at no cost
to Tenant in the adjacent "Quebec Court ll" parking lot or on
other nearby lots as Landlord shall reasonably determine, which
could include, at Landlord's discretion, a parking location
sewed by shuttle service to the Building at Landlord's sole cost
and expense;
(ii) Upon completion of construction, Tenant is permitted to use
at no cost that number of spaces in the parking garage such that
Tenant's total number of spaces, when totaling its parking
garage spaces and any surface parking spaces remaining available
to Tenant subsequent to the construction of the parking garage,
shall be no fewer than 476; Landlord, however, reserving the
right to designate spaces in the parking garage for Tenant's use
and for use by third parties, and to change such designations in
its reasonable judgment, except as set forth below. As for
Tenant's spaces within the parking garage, if and when
completed, Landlord agrees to designate and reserve to Tenant 25
full size spaces for executive parking on the first floor of the
parking garage nearest to the east entrance to the Building in
the area most convenient to the Leased Premises, which
designation shall not be changed by Landlord. At Landlord's cost
all of Tenant's spaces will be marked "Reserved for Time Warner"
(or otherwise as Tenant may request). Landlord shall use its
best efforts to congregate Tenant's spaces. Of those additional
parking spaces to be made available to Tenant in the parking
garage, spaces on the top floor of the garage shall be allocated
proportionally between the Quebec Court l and Quebec Court ll
buildings in accordance with the leasable square footage of the
buildings, even if such allocation means that Tenant has a
greater number of spaces on the top floor than on any other
floor. All other spaces to be designated for Tenant may be on
other floors of the parking garage as Landlord may reasonably
determine;
(iii) No expenses in connection with the construction of the
garage shall be Building Operating Expenses;
(iv) The parking garage is built in conformity with all
applicable statutes, laws and ordinances; and
(v) Tenant's permitted use of the number of spaces assigned to
it in the parking garage shall be free of charge except for
Tenant's proportionate share of costs associated with the
parking garage, which proportionate share will be a fraction
whose numerator is the number of spaces in the garage that
Landlord is required to designate for Tenant and does, and whose
denominator is the total number of parking spaces in the parking
garage. Such costs shall be Building Operating Costs and shall
be net of any public parking fees collected by Landlord for use
of the garage, if any. Use of parking spaces in addition to
those permitted to Tenant under the Lease may be subject to a
charge by Landlord, in its sole discretion.
20. Amendment to Addendum No. 1. Paragraphs 1 through 8, inclusive,
and 10 are deleted.
21. Deletion of Exhibits D, H, I and J. Exhibits D, H, I and J are
deleted and to preserve the continuity of the lettering are considered
deliberately deleted.
22. Amendment to Exhibit G. Exhibit G is hereby amended by the
deletion thereof in its entirety and the substitution therefore of Exhibit G
attached to this First Amendment.
23. Addition of Exhibits L, M, N and O. Exhibits L, M, N and O are
added to read in the forms attached to this First Amendment.
24. Improvement Allowance. Landlord shall give Tenant an allowance
for Tenant's expenses incurred in the design, permitting, demolition and
construction of its leasehold improvements in the Premises up to a maximum of
three hundred ninety thousand dollars ($390,000.00) (the "Basic Allowance"). In
addition, Landlord shall provide an additional allowance of up to six hundred
fifty thousand dollars ($650,000.00) for the same purpose, which, if and to the
extent used, shall be amortized over the term of the Lease at an annual
percentage rate of ten percent (10%) and which shall be payable as Rent in
monthly installments by Tenant at the same time and in the same manner as Rent
(the "Additional Allowance" and, together with the Basic Allowance, the
"Construction Allowance"). Landlord shall pay the Construction Allowance within
thirty (30) days after Tenant's presentation of (I) original receipted invoices
marked "paid" in connection with all actual construction work performed by
Tenant in the Premises, (ii) unconditional lien waivers from the general
contractor and all subcontractors, (iii) an affidavit of the general contractor
indicating that, (A) construction has been completed, (B) construction was
completed in accordance with Landlord-approved plans and specifications, (C)
all subcontractors, laborers and material suppliers have been paid in full, (D)
a copy of the certificate of occupancy for the Leased Premises and (E) a
statement by Tenant that it has accepted the Premises. Tenant shall request
payment of the Construction Allowance and shall present all evidence required to
obtain such payment from Landlord no later than July 1, 1998. Within 30 days
after such date, Landlord and Tenant shall determine what portion of the
Construction Allowance is Additional Allowance and shall execute and deliver to
each other a statement setting forth the amount which shall constitute the
monthly Additional Allowance repayment.
Tenant may use its own architects, general contractors and
subcontractors subject to Landlord's reasonable approval; however, such
architects, general contractors and subcontractors must comply with Landlord's
reasonable rules and regulations regarding construction of the Building. All
improvements and alterations undertaken in the Premises shall be performed in
accordance with paragraph 10 of the Lease, as amended herein.
25. Defined Terms. Defined terms used in this First Amendment and
not defined in it have the meanings given to them in the Lease.
26. Confirmation. Landlord and Tenant confirm the Lease as amended
by this First Amendment, acknowledge that it is in full force and effect and not
modified, and represent that there is no default under the Lease nor are there
any circumstances which after the giving of notice or passage of time, or both,
would constitute a default under the Lease.
27. Corporate Action. Landlord and Tenant warrant that all necessary
corporate actions have been duly taken to permit each party to enter into this
First Amendment to Lease and that each undersigned officer has been duly
authorized and instructed to execute this First Amendment to Lease.
28. Effective Date. The effective date of this Amendment is October
1, 1997.
Landlord and Tenant have executed this Amendment as of its date.
LANDLORD: CARRAMERICA REALTY, L.P., a Delaware
limited partnership
By: CARRAMERICA REALTY GP
HOLDINGS, INC., a Delaware corporation, its
General Partner
By: Xxxxxx X. Xxxxxxx
_________________________________
Name: Xxxxxx X. Xxxxxxx
Title: MANAGING DIRECTOR
Date of Signature: 10/17/97
TENANT: TIME WARNER COMMUNICATIONS
HOLDINGS INC., a Delaware corporation
By: Xxxxx XxXxxx
_________________________________
Name: Xxxxx XxXxxx
Title: President
Date of Signature: 10/15/97
