EXHIBIT 10.1
OFFICE LEASE
BETWEEN
TCD NORTH, INC.
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____________________________
"LANDLORD"
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AND
COMMNET CELLULAR INC.
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______________________________
"TENANT"
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FOR SPACE AT
THE BUILDING KNOWN AS
" CRESCENT VIII "
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_____________________________
________________________________
(Building Address)
DATED
August 8 , 1995
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PART I - BASIC LEASE TERMS
PART II - GENERAL PROVISIONS
PART III - EXHIBITS AND ADDENDA
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INDEX
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Page
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PART I
BASIC LEASE TERM SHEET..................................................... 1
PART II
GENERAL PROVISIONS......................................................... 2
1. TERMS AND DEFINITIONS.............................................. 2
2. PREPARATION OF THE LEASED PREMISES................................. 3
3. OCCUPANCY; LEASE COMMENCEMENT DATE................................. 3
4. USES............................................................... 3
5. SECURITY DEPOSIT................................................... 3
6. RENT............................................................... 4
7. UTILITIES.......................................................... 6
8. BUILDING SERVICES.................................................. 7
9. ACCESS AND ALTERATIONS............................................. 7
10. TENANT MAINTENANCE................................................. 7
11. TENANT'S PROPERTY.................................................. 8
12. IMPROVEMENTS AND ALTERATIONS BY TENANT............................. 8
13. LIENS.............................................................. 9
14. INSURANCE; INDEMNITY............................................... 9
15. WAIVER OF SUBROGATION.............................................. 10
16. CASUALTY........................................................... 10
17. CONDEMNATION....................................................... 10
18. HAZARDOUS WASTE INDEMNIFICATION.................................... 10
19. AMERICANS WITH DISABILITIES ACT.................................... 13
20. INSOLVENCY; BANKRUPTCY............................................. 13
21. ASSIGNMENT, LETTING AND SUBLETTING................................. 14
22. RULES AND REGULATIONS.............................................. 16
23. PARKING............................................................ 16
24. SIGNS.............................................................. 16
25. LANDLORD'S LIEN.................................................... 16
26. QUIET ENJOYMENT; UNAVOIDABLE DELAY................................. 16
27. SURRENDER.......................................................... 17
28. HOLD OVER TENANCY.................................................. 17
29. TENANT'S DEFAULT................................................... 17
30. PROFESSIONAL FEES AND COSTS........................................ 20
31. ACCORD AND SATISFACTION; REINSTATEMENT OR EXTENSION................ 20
32. LANDLORD'S DEFAULT................................................. 20
33. LIMITATION OF LANDLORD'S LIABILITY................................. 21
34. LANDLORD'S RESERVED RIGHTS......................................... 21
35. SUBORDINATION AND ATTORNMENT....................................... 21
36. ESTOPPEL CERTIFICATE............................................... 21
37. DEMOLITION OF BUILDING............................................. 22
38. AMENDMENT.......................................................... 22
39. WAIVER............................................................. 22
40. NOTICES............................................................ 22
41. BINDING EFFECT; GENDER............................................. 22
42. RIDERS AND ATTACHMENTS............................................. 22
43. SEVERABILITY....................................................... 22
44. TIME; DUTIES OF TENANT REQUIRE STRICT PERFORMANCE.................. 23
45. BROKER'S INDEMNIFICATION........................................... 23
46. RECORDING LEASE.................................................... 23
47. ENTIRE AGREEMENT................................................... 23
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48. RELOCATION OF TENANT................................................ 23
49. EXECUTION OF LEASE, AUTHORIZATION OF PARTIES........................ 23
50. LENDER APPROVAL...................................................... 24
51. CONSTRUCTION OF LEASE.................................................24
PART III
EXHIBIT A - Floor Plan of Leased Premises
EXHIBIT B - Legal Description of Building
EXHIBIT C - Work Agreement
EXHIBIT D - Rules and Regulations
EXHIBIT E - Estoppel Letter
EXHIBIT F - Lease Commencement Rider
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OFFICE LEASE
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PART I
BASIC LEASE TERM SHEET
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BUILDING: Crescent VIII
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LEASE DATE: August 8, 1995
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LANDLORD: TCD North, Inc
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Address: 0000 XXX Xxxxxxxxx, Xxxxx 0000
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Xxxxxxxxx Xxxxxxx, XX 00000
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TENANT: Name: CommNet Cellular Inc.
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Address: 0000 Xxxxxxxxx Xxxxx Xxxxxxxxx
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Xxxxxxxxx Xxxxxxx, XX 00000
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ATTENTION: General Counsel
(Address for Notice if The Building after the Lease Commencement Date
different than above) ------------------------------------------------
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BROKER OF RECORD:
DTC Management, LLC
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TENANT'S BROKER (if any): Office Leasing Advantage, Inc.
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LEASED PREMISES:
Suite Number: Floor: Part of 2 and all of 3 and 4
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Address:
Tenant's Rentable Area: Approximately 60,000, being a part of the second
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floor and all of the third and fourth floors, to be determined in accordance
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with subsection 1G.
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LEASE TERM:
Lease Commencement Date: January 15, 1996
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Lease Expiration Date: April 14, 2003, subject to the renewal options in
Addendum 54
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Lease Period: 7 years, plus 3 months
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BASE RENT: $ 9,150.00 total aggregate Base Rent, payable in monthly
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installments as follows based on per square foot of Rentable Area:
Months 1-3 $ .00
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Months 4-63 21.50
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Months 64-75 22.00
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Months 76-87 23.00
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"BUILDING OPERATING COST" REFERENCE (Article 6):
BASE YEAR: Calendar Year 1996 [Paragraph 6B(2)], or
EXPENSE STOP: $ n/a per square foot [Paragraph 6B(3)]
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TENANT'S PRO RATA SHARE (of Building for Building Operating Costs): See 1K %
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SECURITY DEPOSIT: $108,928
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PERMITTED USE: General office uses
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PARKING:
Number of Parking Spaces: 240, based on 60,000 square feet of Rentable Area
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Location of Parking Spaces: 17 assigned covered spaces below the
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Building, at $80.00 each; 23 assigned spaces in the garage located to the west
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of the Building, at $60.00 each; and the remainder shall be unassigned and
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uncovered in the open parking lot for the Building, at no charge.
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GUARANTOR:
Name: __________________________________________________________________
Address: __________________________________________________________________
__________________________________________________________________
OTHER: ________________________________________________________________________
________________________________________________________________________
THIS BASIC LEASE TERM SHEET, together with the General Provisions
incorporated as Part II and any Exhibits, Riders, Addenda and Guaranty
incorporated as Part III, all constitute the entire Lease between the
above-described Tenant and Landlord for the Leased Premises described
above, made and entered into as of the Lease Date specified above.
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OFFICE LEASE
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PART II
GENERAL PROVISIONS
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This Office Lease ("Lease") is made between Landlord and Tenant, as named
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on the Basic Lease Term Sheet attached to and incorporated in this Lease as Part
I, which provides the basic commercial terms for this Lease as referred to in
these General Provisions. The Basic Lease Term Sheet, these General Provisions
and the Exhibits, Addenda and Lease Rider, if any, comprising Part III of this
Lease are all attached and incorporated together to form this Lease, and are all
integrated as essential parts hereof. This Lease is dated as of the date shown
on the Basic Lease Term Sheet.
1. TERMS AND DEFINITIONS.
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A. "Leased Premises" and "Premises" shall mean the area shown as such on
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Exhibit A attached hereto and made a part hereof. Any dimensions on Exhibit A
are approximate unless labeled "exact."
B. "Building" shall mean the office building in which the Leased Prem ises
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are located, as described in the Basic Lease Term Sheet, and the real property
on which it is situated, as described in Exhibit B hereto and made a part
hereof.
C. "Common Areas" shall mean all sidewalks, landscaped areas, parking
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areas, plazas and appurtenances to the Building, as may be expanded, reduced or
modified from time to time.
D. "Lease Commencement Date" shall mean the earliest of: (1) the date
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specified as the Lease Commencement Date on the Basic Lease Term Sheet, (2) the
date specified in any Lease Commencement Rider to be executed by the parties,
and which may be attached to this Lease as Exhibit F, or (3) the date Tenant
opens for business on or from the Leased Premises. If the Leased Premises are
not Ready for Occupancy on either of the dates described in (1) and (2) above,
then the Lease Commencement Date shall be the earliest date on which any of the
following occurs: (a) Landlord tenders possession of the Leased Premises, which
Leased Premises are, at the time of tendering, substantially Ready for Occupancy
in accordance with the Work Agreement and Section 1N; or (b) Tenant opens for
business on or from the Leased Premises; or (c) if a certificate of occupancy is
required for Tenant's possession because of any finish or renovation required to
be performed, satisfactory final inspection of such work is received from the
governmental agency having the authority to perform such inspection.
E. "Lease Term" or the words "during the term" or "the term" shall mean
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the period beginning at 7:00 a.m. on the Lease Commencement Date and ending at
7:00 a.m. on the Lease Expiration Date, as specified on the Basic Lease Term
Sheet, or as otherwise extended as provided herein.
F. "Base Rent" shall mean the sum specified on the Basic Lease Term Sheet,
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which shall be payable in monthly installments for each 12-month period from and
after the Lease Commencement Date (such 12-month periods being hereinafter
referred to as a "Lease Year") through the Lease Expiration Date.
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G. "Rentable Area" shall be determined by the Landlord and Tenant's
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architects.
H. "Tenant Improvements" shall mean all of the improvements within the
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Leased Premises including, by way of example and not in limitation, interior
walls, ceilings, floor coverings, fixtures (but excluding trade fixtures and
equipment not permanently attached to the Leased Premises), and Tenant Upgrades.
I. "Tenant Work" shall mean any of the work for construction of the Tenant
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Improvements to be performed by the Tenant or the Tenant's contractor.
J. "Tenant Upgrades" shall mean the items which are supplied, installed or
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furnished to the Leased Premises by Tenant, at Tenant's expense, or which are
installed by Landlord, at Tenant's expense, which shall include, without
limitation, those Tenant Improvements which exceed the Tenant Allowance provided
for in the Work Agreement.
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K. "Tenant's Pro Rata Share" shall mean the percentage which is calculated
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by dividing Tenant's Rentable Area by the Rentable Area in the Building as
determined by Landlord, in accordance with subsection 1G and as specified on the
Basic Lease Term Sheet.
L. "Additional Rent" shall mean Tenant's Pro Rata Share of Building
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Operating Costs as described in Article 6, and Tenant's obligation for all other
monetary payments under this Lease.
M. "Landlord" shall mean variously the entity named on the Basic Lease
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Term Sheet and its representatives and agents, including, but not limited to,
the Landlord's property management agent.
N. "Ready for Occupancy" shall mean that any improvement work to the
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Leased Premises to be performed by Landlord has been substantially completed, in
accordance with the Work Agreement as determined by Landlord's architect or
contractor, to an extent which will permit Tenant to commence Tenant's Work or,
if Tenant has no obligation to perform any Tenant Work, then to an extent that
Tenant may occupy the Leased Premises for the Permitted Use, subject, in either
case (that is, Tenant's performance of Tenant's Work or Tenant's occupancy for
the Permitted Use), to Landlord's completion or correction of punchlist items,
the work upon which will not materially interfere with either Tenant's Work or
Tenant's occupancy for the Permitted Use.
2. PREPARATION OF THE LEASED PREMISES.
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Landlord shall use reasonable efforts and proceed with reasonable dili
gence to prepare the Leased Premises for Tenant in accordance with the Work
Agreement attached hereto and made a part hereof as Exhibit C (the "Work
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Agreement"). Tenant may inspect the Leased Premises at reasonable times, as long
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as such inspections do not interfere with Landlord's construction activi ties.
Tenant shall not exercise any control over the persons performing con struction
activities on the Leased Premises. To the extent this paragraph conflicts with
the Work Agreement, the Work Agreement shall control.
During any such inspections, Tenant and any of its representatives shall
abide by any safety and other rules established by Landlord or its contractor.
No inspections may be made without advance notice to Landlord or at a time when
a representative of the Landlord or contractor is not present. Tenant shall
indemnify and hold Landlord harmless from and against any injury, death or
property damage resulting from an inspection by Tenant.
3. OCCUPANCY; LEASE COMMENCEMENT DATE.
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Landlord shall use reasonable efforts to prepare the Leased Premises for
occupancy on the Lease Commencement Date specified on the Basic Lease Term
Sheet, or on the Lease Commencement Rider, whichever is applicable, subject to
any "punchlist items" which will not materially affect the use of the Leased
Premises for the Permitted Use (as stated in the Basic Lease Term Sheet and
defined in Section 4 hereinafter). If Landlord fails to cause the Leased
Premises or any portion thereof to be Ready for Occupancy as required herein,
neither Landlord nor Landlord's agents, officers, employees or contractors shall
be liable for any damage, loss, liability or expense caused thereby, except as
provided in Addendum
4. USES.
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A. Permitted Use and Compliance. Tenant agrees to continuously use and
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occupy the Leased Premises for the purposes specified on the Basic Lease Term
Sheet (the "Permitted Use"), and for no other purpose, unless specifically
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approved by Landlord in writing, which approval may be withheld, in Landlord's
sole and absolute discretion, for any reason or no reason whatsoever. Tenant
also agrees to use the Leased Premises in a careful, safe and proper manner.
Tenant shall comply with the provisions of all recorded covenants, conditions
and restrictions affecting the Building and all building, zoning, fire and other
governmental laws, ordinances, regulations or rules applicable to the Leased
Premises and all requirements of the carriers of insurance covering the
Building. Tenant shall not do or permit anything to be done in or about the
Leased Premises, or bring or keep anything in the Leased Premises that may: (1)
increase or invalidate the fire and extended coverage insurance premium upon the
Building; (2) injure the Building; (3) expose or subject Landlord to any
liability to any person; (4) result in any unreasonable emissions of smoke,
fumes, noise, radioactivity, microwaves, odors or other pollutants; or (5)
constitute waste or be a nuisance, public or private, disturbance or menace to
tenants of adjoining premises or to anyone else. The foregoing notwithstanding,
in the event Tenant's use of the Leased Premises results in an increase in the
cost of insurance for the Building, as more fully set forth in Section 14 below,
Tenant shall pay the incremental increase in such cost, and may continue to
utilize the Leased Premises for such use, only for so long as Tenant's use does
not present, in Landlord's sole opinion, an undue hazard to the Building or any
of its occupants.
B. Fitness for Purpose. Subject to the completion of the work in
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accordance with the Work Agreement, Tenant agrees that it has determined to
Tenant's satisfaction that the Leased Premises are suitable for Tenant's
particular purpose and use and can be used by Tenant for the Permitted Use,
subject to installation of the Tenant Improvements.
C. Tenant's Inspection and Acceptance. Taking possession of the Leased
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Premises shall be conclusive evidence against Tenant that (1) Tenant has exam
ined the Leased Premises and accepts the same as being in the condition called
for by this Lease, including, but not limited to, the terms of the Work Agree
ment, and (2) Tenant acknowledges that the Leased Premises are free of any
omissions or defects, latent or otherwise, including those resulting from
asbestos-containing materials, subject only to "punchlist items" that may be
mutually agreed to in writing by Landlord and Tenant at the time of Tenant's
acceptance of possession and subsequently corrected by Landlord with Tenant's
cooperation. If a Lease Commencement Rider is to be executed, such Rider shall
describe the "punchlist items," if any.
D. Use of Common Areas. Unless otherwise restricted by Landlord, Tenant
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shall have a nonexclusive right with other tenants in the Building to use the
Common Areas located on the real estate legally described on Exhibit B. All use
of Common Areas shall be in accordance with Section 23 below and with Landlord's
Rules and Regulations, as defined and described in Section 22 below.
5. SECURITY DEPOSIT.
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Tenant has deposited with Landlord simultaneously with the execution of
this Lease the "Security Deposit" shown on the Basic Lease Term Sheet, as
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security for the Rent payable hereunder, the return of the Leased Premises in
good order and condition, and the performance of each and every one of the
covenants, conditions and agreements herein stipulated. The Security Deposit
shall not be applied by Tenant to the payment of Rent or any other charges for
which it may become liable under this Lease and such Security Deposit shall in
no way relieve Tenant from the faithful and punctual performance of any or all
covenants and conditions hereby imposed upon Tenant. If Landlord applies or uses
any part of the Security Deposit to satisfy any obligation of Tenant, Tenant,
upon demand, shall deposit with Landlord a sufficient amount to fully restore
the Security Deposit so that Landlord shall have the full amount of the Security
Deposit on hand at all times during the term of this Lease. If an Event of
Default (as defined in Section 29) occurs, Landlord may require Tenant to
increase the Security Deposit up to an amount three times the Security Deposit
amount stated in the Basic Lease Term Sheet. Landlord agrees that at the
termination of this Lease, or at the termination of any extension thereof, the
Security Deposit, or so much thereof which has not been used by Landlord for the
purposes for which it was deposited, shall be returned to Tenant within 60 days
after the Leased Premises has been vacated in good order and condition, provided
that Tenant shall have complied in all respects with the terms, covenants and
conditions contained herein. Landlord shall not be required to keep the Security
Deposit separate from, and may commingle the Security Deposit with, its general
funds. Tenant shall not be entitled to interest on such Deposit, but Landlord
may maintain the Security Deposit in
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interest bearing accounts and shall be entitled to all interest earned thereon.
In the event of a sale, lease, assignment, transfer or foreclosure of the
Building, Landlord shall have the right to transfer the Security Deposit to its
purchaser, assignee, transferee or any other successor in interest
(collectively "Successor") and Landlord shall, upon such transfer to a
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Successor, be released by Tenant from all liability for the return of the
Security Deposit. In the event Landlord has transferred the Security Deposit to
a Successor, Tenant agrees to look solely to the Successor for the return of
said Security Deposit and said Successor shall have the same responsibilities as
those of the original Landlord contained in this Section. The provisions hereof
shall apply to every transfer or assignment made of the Security Deposit to a
new Successor.
6. RENT.
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A. Rent Payment. Tenant covenants and agrees to pay to Landlord, at
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Landlord's address stated on the Basic Lease Term Sheet (as such address may be
amended by Landlord from time-to-time), the Base Rent as provided in the Basic
Lease Term Sheet, together with all additional Rent provided for in this Lease,
without demand, deduction or setoff in monthly installments, due in advance on
the first day of each calendar month during the Lease Term beginning on April 1,
1996. The first installment of Base Rent is due and payable on the date hereof.
B. Tenant's Pro Rata Share of Building Operating Costs. In addition to
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Base Rent, Tenant shall pay to Landlord, in monthly installments, at the same
time as Tenant is required to pay Base Rent, an amount (which amount shall be
Additional Rent) that is equal to 1/12th of the Landlord's estimate of Tenant's
Pro Rata Portion of the annualized Building Operating Costs (as hereinafter
defined). Tenant's obligation to pay Tenant's Pro Rata Share of Building
Operating Costs shall be limited to the amount by which such Building Operating
Costs are more than: the Building Operating Costs for the Base Year; as more
expressly set forth below.
(1) "Building Operating Costs" shall mean all expenses, costs and
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disbursements which Landlord shall pay or become obligated to pay because
of or in connection with the maintenance, repair and operation of the
Building, including, but not limited to: general and special real estate
taxes and assessments, use, sales, franchise, business, corporation, or any
other taxes (except income taxes) based on rents, personal property taxes
on personal property used in the operation of the Building; Land lord's
insurance, as described in Paragraph 14 below; utilities not sepa rately
metered to individual tenants; all energy costs incurred in oper ating the
Building; maintenance, repairs, redecorating; restoration costs to the
extent of commercially reasonable deductible amounts for the Building's
insurance; costs of roof renovation (which shall be amortized over its
expected life); janitorial service; window cleaning; operating supplies;
property management; Building Services (as hereinafter defined); snow and
ice removal; sweeping and debris removal; landscaping; costs of plants,
shrubs, trees, or flowers, and normal maintenance thereof; rubbish removal;
tools and equipment used in the daily operation of the Building; air
conditioning, heating, plumbing, electrical and elevator maintenance,
repair and replacement; supplies and materials; labor for repair and
maintenance; resurfacing, repainting and restriping of parking areas;
repair and replacement of car stops and signage; secu rity; capital
replacements and improvements which are determined by Landlord, in the
reasonable judgment of Landlord, to be necessary to maintain the Building
in a first class condition; legal costs (other than those related to lease
negotiations) and accounting and auditing fees pertaining to the Building.
Building Operating Costs shall not include monies spent for income tax
reporting, interest, depreciation, or expenditures of a capital nature
(other than as expressly provided hereinabove), unless such expenditures
are required due to a change in law applied by applicable governmental
authorities, or otherwise cause a reduction of the Building Operating Costs
without a reduction of services (in such case, capital expenses shall be
included in the Building Operat ing Cost). Building Operating Costs for the
Base Year for this purpose shall be determined on the basis of a full 12
month period for the Building, assuming 100% occupancy. (See Addendum
6B(1)).
(2) Increases Over Base Year Costs. "Base Year" shall mean the
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calendar year specified on the Basic Lease Term Sheet. If a Base Year is
specified on the Basic Lease Term Sheet, then the Base Rent which Tenant
pays for the Leased Premises during the initial calendar year of the term
of this Lease includes Tenant's Pro Rata Share of the Building Operating
Costs for such Base Year. If Tenant's Pro Rata Share of the projected
Building Operating Costs (as determined by Landlord) for any subsequent
calendar year during the Lease Term exceeds Tenant's Pro Rata Share of the
actual Building Operating Costs
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(as determined by Landlord) for any subsequent calendar year during the
Lease Term exceeds Tenant's Pro Rata Share of the actual Building Operating
Costs (as determined by Landlord) for the Base Year, then Tenant shall pay,
as Additional Rent during each such subsequent calendar year, such excess,
in the manner herein provided. If the Building Operating Costs for any
calendar year during the term of this Lease are less than the Building
Operating Costs for the Base Year, Tenant shall not be entitled to any
refund or credit for the amount by which such Building Operating Costs are
less than the Base Year Building Operating Costs.
(3) [Deleted]
(4) Operating Cost Adjustments. Until Tenant is advised of an
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increase in the Additional Rent, Tenant shall continue to pay Additional
Rent at the then current rate (including all prior adjustments). Addi tional
Rent may be collected by Landlord in monthly installments of 1/12th of
Tenant's Pro Rata Share of estimated annual excess Building Operating Costs.
Tenant shall commence payment to Landlord of the monthly installments of
Additional Rent reflecting Tenant's Pro Rata Share of increases in Building
Operating Costs over the Base Year pur suant to paragraph 6(B)(2), on the
basis of the adjustment determined by Landlord, on the first day of the
month after Landlord advises Tenant of such increases in Building Operating
Costs. However, on the date the first payment of Additional Rent, as
increased, is due, Tenant shall also pay to Landlord the total of
differences between monthly installments of Additional Rent, as increased,
and the monthly installments of Additional Rent actually paid for each month
of the then current calendar year. Failure of Landlord to require any
increase in Additional Rent during any calendar year, or failure to require
the full increase to which Landlord is entitled, shall not waive Landlord's
right to any further or addi tional adjustment of the Additional Rent for
that year or any subsequent year. Landlord shall further be entitled to
adjust payments of Addi tional Rent to be paid by Tenant pursuant to this
Article periodically during any calendar year if Landlord reasonably deems
such adjustments necessary and appropriate.
(5) Adjustments to Additional Rent. Annually, Landlord shall
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the Tenant a statement (the "Adjustment Statement") setting forth the
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furnish to Landlord's determination of the actual Building Operating Costs
for the prior calendar year, and the amount of the "Annual Adjustment
Increase," if any, or the "Tenant's Overpayment," if any, as those terms
are defined hereinafter in this paragraph. If the actual Building Oper
ating Costs for the prior calendar year (as reflected in the Adjustment
Statement) exceed the Landlord's estimated Building Operating Costs in any
calendar year during the Lease Term, from which estimate the Additional
Rent payment amounts were based, Tenant's Additional Rent for that year
shall be increased by an amount equal to the quantity obtained by
subtracting the estimated Building Operating Costs (which were used to
determine the Additional Rent installments previously paid by Tenant) from
the actual Building Operating Costs for the same calendar year, and
multiplying the remainder by the Tenant's Pro Rata Share (the "Annual
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Adjustment Increase"). Tenant shall reimburse Landlord for the Annual
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Adjustment Increase within fifteen (15) days after receipt of the
Adjustment Statement. If the Adjustment Statement reflects that the actual
Building Operating Costs were less than the Building Operating Costs
estimated for that calendar year (which were used to determine the
Additional Rent installments previously paid by Tenant), Landlord shall
calculate, and include in the annual Adjustment Statement, the amount by
which Tenant's payment of Tenant's Pro Rata Share of Building Operating
Costs exceeded Tenant's Pro Rata Share of the actual B uilding Operating
Costs for the same calendar year (the "Tenant's Overpayment"). The amount
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of Tenant's Overpayment shall be credited against the next due installments
of Additional Rent owed by Tenant, unless the Lease Term has expired, in
which event the amount of such Tenant's Overpayment shall be refunded to
the Tenant within 60 days; provided, that if Tenant is in default under the
Lease, no such credit or payment shall be due or owing to Tenant until such
default has been cured by the Tenant. All determinations by Landlord
pursuant to this paragraph shall be conclusive. In the event the Rentable
Area of the Building is less than 100% occupied by tenants during any
calendar year, Landlord shall adjust Building Operating Costs which are
affected by occupancy rates to reflect what the Building Operating Costs
would have been had the Rentable Area of the Building been 100% occupied.
(6) Survival of Obligation. Notwithstanding any other provisions
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of this Lease, Tenant's obligation to pay Additional Rent shall survive the
termination or expiration of this Lease, and shall continue as to all
Building Operating Costs incurred through the calendar date set forth as
the Lease Expiration Date on the Basic Lease Term Sheet, as
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such date may have been extended by any right to extend set forth herein,
and through any holding over by Tenant thereafter.
C. Use of the Term "Rent". Base Rent and Additional Rent, as may be
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adjusted, together with other amounts which may be payable by Tenant to Land
lord under this Lease, shall be referred to collectively as "Rent." Rent for
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any fractional calendar month at the beginning or end of the Lease shall be
prorated on a per diem basis. All Rent payments shall be deemed to have been
paid only upon the receipt of such payments by Landlord and not merely upon
deposit in the mail. Monthly Base Rent for any Lease Year or calendar year
shall not be less than monthly Base Rent for any prior Lease Year or calendar
year, respectively.
D. Late Charges and Interest. Rent not received by Landlord by the 5th day
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after it becomes due shall be subject to a late charge of 5% of the amount due.
Additionally, if Rent is not received by Landlord by the 10th day after it
becomes due, the amount due shall be subject to an additional 5% late charge.
(See Addendum 6D) Rent and all other monetary obligations under this Lease not
received by Landlord when due shall bear interest at the rate of 2% per month,
compounded monthly, from the date due until fully received by Landlord. Tenant
acknowledges that late payments will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which would be impossible or
extremely difficult to ascertain. Such costs include, without limitation,
processing and accounting charges, interest and late charges imposed by the
lenders providing financing for the Building, and other general and
administrative expenses. The late charges and interest contemplated by this
paragraph represent a fair and reasonable estimate of the costs which Landlord
will incur as a result of any such late payments by Tenant. Acceptance of late
charges and interest by Landlord shall not constitute a waiver of Tenant's
default with respect to any overdue amount, nor prevent Landlord from exercising
any other rights or remedies under this Lease.
E. Habitual Late Payments. The parties expressly acknowledge that all Rent
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is due and payable on the first day of each month. If Landlord fails to receive
any payment of Rent on or before the first day of each month on more than two
occasions in any calendar year, then in addition to the late charges provided
for in Paragraph 6.D above, Tenant shall pay a habitual late charge of 5% for
every payment received by Landlord after the first day of each sub sequent
month, until all payments of Rent have been received by Landlord on or before
the first day of every subsequent month for at least 12 consecutive months.
F. Other. Tenant will pay when due, and indemnify Landlord against, any
-----
costs, expenses, losses or liabilities with respect to any of the following:
(1) Utilities. Any utility services supplied to and metered directly
---------
to the Leased Premises, including but not limited to: water, sewer,
electricity, gas, heat and air conditioning.
(2) Increase. Any extraordinary increase in taxes, insurance
--------
premiums and other direct operating expenses for the Property that are
directly attributable to any use, activity, or installation by Tenant within
or with respect to the Leased Premises. Illustrative items include any
property tax increase attributable to any leasehold improvements made by
Tenant, insurance charges for any extra-hazardous use of the Leased Premises
made by Tenant, charges for utilities resulting from abnormal consumption or
use by Tenant, and increased maintenance costs for any of the Common Areas
resulting from Tenant's use.
(3) Tenant Taxes. Any taxes assessed with respect to (a) any of
------------
Tenant's personal property, tangible or intangible, including any of
Tenant's inventory and equipment; (b) Tenant's exercise of any taxable
privilege on, from or with respect to the Leased Premises, and (c) occu
pational license, franchise, or other fees payable with respect to any
activity conducted by Tenant on or from the Premises.
(4) Tenant Work. Any charges for labor, services or materials
-----------
supplied pursuant to a contract with Tenant (express or implied, written or
oral) for maintaining, restoring or improving the Leased Premises, or
installing any item thereon, other than work for which Landlord agrees to
pay under the Work Agreement.
- E-2 -
(5) Liens. Any lien, or claim of lien, asserted against any interest
-----
in the Leased Premises or the Building by, through, under or against Tenant.
(6) Violations. Any fines or other penalties, and any charges or
----------
other costs, incurred by Landlord because of Tenant's violations of any
legal requirement, including (a) any law, ordinance, rule, court order or
regulation, or any building, safety or other code violation; (b) Tenant's
failure to maintain adequate workers' compensation or similar insurance
required with respect to Tenant's activities conducted on or from the Leased
Premises; or, (c) Tenant's failure to comply with any zoning or other legal
requirement applicable to Tenant's use of the Leased Prem ises. Tenant's
liability under this subparagraph includes both the costs of correcting any
violation of any legal requirement and any costs in curred by Landlord in
defending, compromising or discharging any enforce ment proceeding
instituted against Landlord or the Building, or both, because of any such
violation. ("Tenant" as used in this subparagraph and in subparagraph (7)
------
shall mean and include Tenant's employees, representatives, contractors,
agents, invitees, guests, licensees and visitors).
(7) Damage by Tenant. In the event of any damage to the Leased
----------------
Premises, the Building or the Common Areas caused by Tenant, Tenant shall,
at its expense, promptly restore the damaged item or area to the condition
it was in immediately prior to the occurrence and complete such restoration
within 30 days of the occurrence or if it cannot be so restored within 30
days, then within a reasonably time not to exceed 30 days after the end of
the first 30 day period. All construction work performed by Tenant under
this paragraph shall comply with the provisions of Section 12 of this
Lease. If Tenant fails to commence to perform this obligation within five
days from the date of the damage, or complete it within a reasonable time
period (determined in Landlord's discretion) Landlord shall have the right,
but not the obligation, to make such restoration, and all expenses incurred
by Landlord in this regard, together with an administrative fee of 20%
added thereto to reimburse Landlord for Landlord's overhead and Landlord's
cost of money to pay for such restoration, shall become Additional Rent
payable by Tenant to Landlord, upon demand.
Any indemnification payments due Landlord under this Section 6F shall be
due within 10 days after notice is given to Tenant.
7. UTILITIES.
---------
A. Landlord. Landlord shall provide the following services to the
--------
Building: water, sewer, electricity, heat and air conditioning, the cost of
which shall be treated as part of Building Operating Costs. Separate addi tional
charges may be made to Tenant, if Tenant, in Landlord's reasonable judgment,
makes unusual or excessive utility system demands where such ser vices are not
separately metered. Landlord does not warrant that any of the utility services
will be free from interruption caused by Unavoidable Delay, as defined in
Section 26 herein. Landlord shall in no event be liable for any such
interruptions. Landlord agrees, however, to use reasonable diligence to have
utility services provided to the Building from 7:00 a.m. to 6:00 p.m. on
weekdays and from 8:00 a.m. to 1:00 p.m. on Saturdays. (holidays excluded),
except as provided in Addendum 7B.
B. Tenant. If any of the above-described utility services and any other
------
utility services are supplied to and metered directly to the Leased Premises,
Tenant shall pay the cost thereof directly to the entity supplying such service
and make any required deposits related thereto. If Landlord determines at any
time, in its reasonable discretion, that Tenant is using excess utilities based
on the proportion of Tenant's use to the use of such utility services by other
tenants of the Building, Tenant shall install, subject to plans and
specifications approved by Landlord, and shall pay for, a meter to measure such
utility services provided to the Leased Premises. Alternatively, Landlord may
request that such a meter be installed to measure Tenant's use of such utility
services, such installation to be at Tenant's sole expense. Tenant shall pay
all costs of any such separately metered services directly to the entity
providing the services or, if the utility provider does not separately xxxx for
the usage measured by such submeter, Tenant shall pay to Landlord the utility
service consumption as measured by such submeter. (see Addendum 7B).
- E-2 -
C. [Deleted]
8. BUILDING SERVICES.
-----------------
A. Nature of Services. Landlord agrees to maintain all Common Areas,
------------------
maintenance shall include lighting, gardening, cleaning, sweeping, inte rior
janitorial service, painting and window cleaning and to provide for the Building
such other services, including, but not limited to, such air-cooling and heating
as may in the judgment of Landlord, and subject to governmental regulations, be
reasonably required for the comfortable use and occupancy of the Building.
Landlord shall maintain the roof, foundation, demising walls and exterior of the
Building in a structurally sound, watertight and reasonably attractive
condition, and Landlord shall make such repairs and replacements as may be
necessary. The term "walls" for the purposes of this paragraph excludes
windows, glass, plate glass, doors, custom office fronts and entry areas. The
services to be provided by Landlord according to this Section shall be deemed to
be "Building Services" and shall be provided in accordance with standards from
-----------------
time-to-time prevailing for comparable office buildings in the Denver
Technological Center ("DTC"). The cost of Building Services shall be considered
part of the Building Operating Costs. Reasonable advance notice is an absolute
condition precedent to any claim by Tenant that Landlord has failed in
Landlord's duty to maintain, repair or replace any elements connected with the
provision of Building Services. Irrespective of the foregoing, Landlord shall
not be liable to Tenant for any consequential loss or damage due to a failure to
maintain, repair or replace, as required by this paragraph.
B. Interruption or Failure to Supply Building Services. Tenant agrees
---------------------------------------------------
that Landlord shall not be liable for any failure to supply or interruption of,
Building Services caused by Unavoidable Delay, as defined in Section 26 herein.
Landlord agrees, however, to use reasonable diligence to supply Building
Services.
9. ACCESS AND ALTERATIONS.
----------------------
A. Rights of Access. After prior notice (which may be verbal) to Tenant,
----------------
Landlord shall have access at reasonable times to the Leased Premises for any
lawful purpose, including, but not limited to, such inspections, maintenance,
cleaning, Building Services, repairs, alterations, additions and restoration as
Landlord may deem necessary, and to ascertain Tenant's compliance with the
provisions of this Lease. Landlord shall have such rights of access without the
same constituting an eviction or entitling Tenant to an abatement of Rent.
Landlord may also show the Leased Premises to prospective purchasers, mortgagees
or within the last 9 months of the Lease, tenants, provided that Landlord shall
not unreasonably interfere with Tenant's business operations. (see Addendum
9A).
B. Passkeys and Locks. Landlord has retained duplicate passkeys to the
------------------
Leased Premises (except the Computer Room) which Landlord may use to gain
access. Tenant shall not change or add locks to the Leased Premises other than
the Computer Room without obtaining the prior written consent of Landlord. In
such event, Tenant shall provide Landlord with duplicate passkeys for all such
locks, except for the Computer Room.
C. Alterations By Landlord. Landlord shall at all times have the right, at
-----------------------
its election, to make such alterations or changes in the Leased Premises, the
Building and the Common Areas as it may from time-to-time deem necessary or
desirable as long as such alterations and changes do not unreasonably interfere
with Tenant's use and occupancy of the Leased Premises.
D. Tenant's Access. Tenant shall have access to the Building and the
---------------
Leased Premises 24 hours a day, seven days a week; subject to Section 7A and the
Building Rules and Regulations.
10. TENANT MAINTENANCE.
------------------
Except for Building Services provided by Landlord, Tenant shall maintain
the Leased Premises (including but not limited to Tenant Improvements, leasehold
improvements, fixtures, equipment and other installations) in a clean, safe,
orderly and reasonably attractive condition, and in good repair, ordinary wear
and tear excepted. Such maintenance and repair shall be at the sole cost of
Tenant and shall include but not be limited to the maintenance and repair of the
floor covering, ceilings and walls, front and rear doors, any custom office
front,
- E-2 -
front, all interior glass in the Leased Premises, and all plumbing, electrical,
lighting and mechanical equipment, fixtures and systems exclusively serving the
Leased Premises and which are not standard for the Building. If Tenant fails to
maintain or keep the Leased Premises in good repair and such failure continues
for five days after written notice from Landlord, Landlord may perform any such
required maintenance and repair and the cost thereof, together with an
administrative fee of 20% added thereto to reimburse Landlord for Landlord's
time, efforts and overhead and Landlord's cost of money to pay for such
maintenance and repair, shall be Additional Rent payable by Tenant within ten
days of receipt of an invoice from Landlord.
11. TENANT'S PROPERTY.
-----------------
Tenant may install, at its expense, within the interior of the Leased
Premises such fixtures, equipment and other personal property as are neces sary,
convenient or desirable for conducting Tenant's normal business opera tions;
provided, however, Tenant shall provide Landlord, in advance of such
installation, a written list identifying any installation that will be attached
to the Leased Premises. The attachment of any installation shall be subject to
Landlord's approval and after such approval such list shall be made a part of
this Lease. On expiration or termination of this Lease, if there then exists no
Event of Default in the payment of Rent or the performance of other obligations
of Tenant under this Lease, as defined in Section 29, Tenant may remove any such
installation which Landlord has approved for removal and Tenant shall remove any
and all installation and other Tenant property which Landlord directs Tenant to
remove by the later of 30 days after notice from Landlord or the date of the
termination or expiration of this Lease. All cost and expense of such removal
shall be borne solely by Tenant. If Tenant removes such installation and/or
property, Tenant shall repair any damage resulting from such removal and shall
restore the Leased Premises to its condition prior to Tenant's occupancy, at
Tenant's expense. If Tenant shall fail to remove such installation and/or
property from the Leased Premises upon the expiration or termination of this
Lease or upon abandonment of the Leased Premises, then at Landlord's election,
all (or portions thereof selected by Landlord, in Landlord's sole discretion) of
such installation and/or property remaining on the Leased Premises shall be
deemed abandoned and shall become Landlord's property, or Landlord may remove
such installation and/or property, store the same without liability to Tenant
for loss or damage thereof, and Tenant agrees to pay Landlord on demand any and
all expenses incurred in such removal, including court costs and attorneys' fees
and storage charges on such property for any length of time it shall be in
Landlord's possession, together with an administrative fee equal to 20% of all
such expenses to reimburse Landlord for Landlord's time, effort and overhead and
Landlord's cost of money utilized to pay for such removal.
12. IMPROVEMENTS AND ALTERATIONS BY TENANT.
--------------------------------------
A. Requirements for Approval. Upon Tenant's occupancy of the Leased
-------------------------
Premises, Tenant may make such additional improvements or alterations to the
Leased Premises which it may deem necessary or desirable, but, unless con
templated by the Work Agreement or otherwise permitted in this Lease or by
Landlord in writing, only with Landlord's prior written approval, which shall
not, except as herein provided, be unreasonably withheld, but which shall
otherwise be subject to compliance with this Lease. Improvements or alterations
(i) of a structural nature, (ii) which adversely affects any mechanical,
electrical, sanitary or other building system or the security in the Building,
or (iii) which requires the Tenant to do work outside the Leased Premises or to
the roof of the Building, are prohibited. Any improvements or alterations by
Tenant after the commencement of occupancy shall be done, at Tenant's expense,
by a licensed contractor approved by Landlord in conformity with plans and
specifications approved by Landlord. If requested by Landlord, Tenant will post
a bond or other security reasonably satisfactory to Landlord to protect Landlord
against liens arising from work performed for Tenant. All work performed shall
be completed: (1) in a good, diligent and workmanlike manner, consistent with
accepted industry standards, and with materials (where not specifically
described in the specifications) of the quality and appearance comparable to
those in the Building; (2) in compliance with the rules and regulations of the
Landlord pertaining to alterations or improvements made by Tenants, as
reasonably adopted from time to time by the Landlord; and (3) in compliance with
all laws, rules, orders, ordinances, regulations and requirements of all
governmental authorities. These addi tional improvements or alterations shall
become Tenant Improvements, subject to all rights and conditions applicable to
other Tenant Improvements. Prior to the commencement of any work or delivery of
any materials to the Leased Premises, Tenant shall furnish Landlord, for
Landlord's approval, copies of the following: plans and specifications, names
and addresses of contractors, copies
- E-2 -
of contracts, necessary permits, the written agreement of Tenant and of Tenant's
contractor(s) to comply with Landlord's rules and regulations pertaining to
alterations or improvements, and such other items as may be reasonably requested
by Landlord to protect Landlord in connection with the work. In addition, prior
to commencement of any work, Tenant shall post, and keep posted in conspicuous
places on the Leased Premises, such notice as re quired by state law to protect
Landlord against liens arising from work per formed for Tenant. After completion
of such work, Tenant shall provide Landlord "as-built" drawings of such work.
B. No Exterior Alterations. Exterior or structural alterations and
-----------------------
alterations to a demising wall are prohibited. No improvement or alteration
shall be permitted which adversely affects the structural integrity of the
Leased Premises, the Common Areas, or the Building, the security in the
Building, the usefulness of any utility, demising wall, mechanical, electrical,
sanitary or other system, or the external appearance of the Building, or of the
Common Areas.
C. No Alteration of Windows. Tenant shall take no actions or conduct to
------------------------
affect any change or alteration in any windows or window coverings in the
Building or Leased Premises. Tenant shall comply with all requests and re
quirements of Landlord in connection with all windows in the Building, all
window coverings and the external appearance of the Building. Tenant shall
cooperate with Landlord and undertake all reasonable efforts to preserve the
aesthetically pleasing appearance of the Building and Leased Premises.
D. Violation. Landlord may summarily remove any installation begun or
---------
made in violation of this Section 12, without liability to Tenant, and
without waiving, limiting or otherwise impairing any other right or
remedy.
E. Tenant Improvement Ownership and Removal Upon Request. With the
-----------------------------------------------------
exception of Tenant's trade fixtures, Tenant Improvements and any and all
additional improvements or alterations to the Leased Premises (including,
without limitation, Tenant Upgrades) other than leasehold rights for their
enjoyment during the term of this Lease and any extension thereof. No Tenant
Improvements nor any additional improvement or alteration made to the Leased
Premises shall be removed by Tenant during or at the end of the Lease Term,
unless Landlord expressly requests removal of some, or all, such Tenant
Improvements, Tenant Upgrades, additional improvements or alterations. If
requested by Landlord as provided in Section 11 above, upon the expiration or
termination of this Lease, Tenant shall remove any Tenant Improvement, Tenant
Upgrades and/or any additional improvement or alteration other than the Tenant
Improvement made under the Work Agreement (except those within the Computer Room
which shall be removed by Tenant unless Landlord and Tenant otherwise agree),
and restore the Leased Premises to its condition prior to the existence of such
Tenant Improvements, Tenant Upgrades, additional improvements or alterations, at
Tenant's sole expense. If Tenant fails to remove any such Tenant Improvements,
Tenant Upgrades, alterations or additional improvements after being requested to
do so by Landlord, Landlord may remove same, and the cost and expense of such
removal shall become owing to Landlord, plus 20% of the cost added thereto, to
compensate Landlord for Landlord's time, efforts, overhead and cost of money,
upon demand, and shall bear interest at the Default Rate.
F. Damage During Construction. Tenant shall protect the Leased Premises,
--------------------------
the Building and all components thereof from damage by water, vandalism or other
casualty resulting from any construction or alteration of or upon the Leased
Premises by or at the direction of Tenant, and shall be solely responsible for
any such damage.
13. LIENS.
-----
Tenant shall keep the Leased Premises and the Building free from any liens
arising out of any work performed, materials furnished, or obligations incurred
by Tenant. Tenant shall, at Tenant's expense, immediately remove any lien,
encumbrance or adverse claim to or against the Leased Premises, the Building,
Landlord, or the Rent that arises, or is asserted to arise, by, through, under,
or against Tenant. Without limitation of the foregoing, Ten ant shall transfer
any such lien, encumbrance or claim to substitute security in the manner
permitted by applicable law upon demand by Landlord. If Tenant fails to make
any such transfer, Landlord, without waiving, limiting or other wise impairing
any other right or remedy, may make such transfer at Tenant's expense. Tenant
has no power to authorize or contract on Landlord's
15
behalf for any labor, services or materials or to otherwise subject Landlord or
Land lord's interest in the Building to any claim relating to any labor,
services or materials.
14. INSURANCE; INDEMNITY.
--------------------
A. Landlord's Insurance. Landlord shall secure and maintain throughout
--------------------
the term of this Lease such insurance as is reasonable (the cost of which shall
be a Building Operating Cost) in amounts and forms within Landlord's discretion,
which may include, without limitation, the following insurance coverage:
(1) Casualty. Fire insurance with extended coverage, vandalism and
--------
malicious mischief.
(2) Liability. Comprehensive public liability insurance
---------
(including bodily injury and property damage insurance) for the Building.
(3) Rent Loss. Rental abatement insurance against abatement or loss
---------
of rent in case of fire or other casualty.
Landlord may, but is not obligated to, purchase such other insurance
customarily purchased, from time-to-time, by office building owners and manag
ers and treat the cost thereof as a Building Operating Cost. Landlord may
charge Tenant with any increase in the premium charged for such insurance
arising out of the particular use of the Leased Premises by Tenant.
B. Tenant's Insurance. Tenant shall, at its own expense, procure and
------------------
maintain throughout the term of this Lease:
(1) Casualty. Fire insurance with extended coverage, vandalism and
--------
malicious mischief with "all risk" endorsements attached in the amount of
all alterations and additions made to the Leased Premises and in the amount
of all of Tenant's fixtures, furniture and equipment, for the full
replacement value thereof.
(2) Liability. Comprehensive public liability insurance insuring
---------
Tenant's activities with respect to the Leased Premises against loss, damage
or liability for personal injury or death and property damage occurring on
or about the Leased Premises, in amounts no less than $1,000,000 combined
single limit coverage. Landlord may require such limits to be increased if
Landlord, in its sole discretion, determines such coverage is or may be
inadequate.
(3) Worker's Compensation. Worker's compensation insurance in at
---------------------
least the statutory amounts with respect to any work or other operation.
(4) Builder's Risk. During any time that construction by Tenant
--------------
may be in progress on the Leased Premises, Tenant shall procure builder's
all-risk insurance, completed value, non-reporting coverage.
C. Tenant's Policy Requirements. All insurors of Tenant must be
----------------------------
authorized to do business in Colorado and well-rated by any recognized national
rating organization. Landlord, Landlord's property management agent, and
Landlord's mortgagee, if any, shall be named as additional insureds under such
insurance. The insurance policies shall: (a) contain endorsements requiring 30
days' notice to Landlord prior to any suspension, cancellation, termination,
modification, non-renewal, lapse or material change of coverage; (b) not contain
any provision relieving the insurer of liability for any loss because of the
existence of other policies of insurance, regardless of collectibility; and (c)
contain a clause waiving rights of subrogation against Landlord. Tenant shall
deliver to Landlord, as a condition precedent to its taking occupancy of the
Leased Premises (but not to its obligation to pay Rent), a certificate or
certificates evidencing such insurance and Tenant shall continue to promptly
supply Landlord with copies of certificates of insurance in effect throughout
the Lease Term.
D. Landlord's Liability. Landlord shall not be liable for any damage,
--------------------
injury or death of or to any person or damage to property in, on or about the
Leased Premises, unless caused by Landlord's deliberate actions or gross neg
ligence. All property of Tenant kept or stored on the Leased Premises shall be
at the sole risk of Tenant.
- E-2 -
E. Indemnification of Landlord. Tenant shall indemnify and hold Land
---------------------------
lords, and Landlord's property management agent harmless from and against all
claim demands, suits, fines, liabilities, losses, damages, costs and expenses
(including legal expenses) arising out of or in connection with:
(1) Premises. Tenant's possession, use, maintenance, restoration,
--------
alteration or improvement of the Leased Premises, or any activity con ducted
or condition created upon or from the Leased Premises by Tenant during the
Lease Term;
(2) Negligence. Any negligence, malfeasance, deliberate action or
----------
misconduct of Tenant;
(3) Breach. Any violation or breach, or alleged violation or breach
------
by Tenant of any term or condition of this Lease, any law, order, rule or
regulation, or any insurance requirement; and
(4) Suits. Any claim, suit, action, proceeding, or contest by
-----
Tenant inconnection with any insurance proceeds or settlement, or any award
for a condemnation or eminent domain taking.
15. WAIVER OF SUBROGATION.
---------------------
Tenant and Landlord each respectively releases and relieves the other and
waives its entire right of recovery against the other for loss or damage aris
ing out of or incident to any perils or casualties covered by insurance required
under this Lease, which occur in, on or about the Leased Premises or the
Building, whether due to the negligence of either party, their agents
(including, without limitation, the Landlord's property management agent),
employees, invitees or otherwise, all to the extent that such loss or damage is
covered by collectible insurance.
16. CASUALTY.
--------
A. (see Addendum 16A)
B. Fault or Neglect of Tenant. Anything to the contrary notwithstanding,
--------------------------
in the event the Leased Premises are rendered untenantable due to the fault or
neglect of Tenant, there shall be no abatement of Rent as provided above, except
to the extent such loss of Rent shall be payable from the pro ceeds of the
rental abatement insurance maintained by Landlord in accordance with Section 14
above.
17. CONDEMNATION.
------------
If the whole or any part of the Leased Premises shall be taken under power
of eminent domain or like power, or sold under imminent threat thereof to any
public authority or private entity having such power, this Lease shall terminate
as to the part of the Leased Premises so taken or sold, effective as of the date
possession is required to be delivered to such authority or entity. Rent for the
remaining term shall be reduced in the proportion that the net Rentable Area of
the Leased Premises is reduced by the taking. If a partial taking or sale of the
Building or the Leased Premises (A) substan tially reduces the net Rentable Area
of the Leased Premises resulting in a substantial inability of Tenant to use the
Leased Premises for Tenant's busi ness purposes, or (B) renders the Building
commercially inviable to Landlord, Tenant, in the case of (A), and Landlord, in
the case of (B), may terminate this Lease by notice to the other party within 30
days after the terminating party receives a written notice of the portion to be
taken or sold, to be effective 180 days thereafter or when the portion is taken
or sold, whichever is sooner. All condemnation awards and similar payments shall
be paid and belong exclusively to Landlord, except any amounts awarded or paid
specifically for Tenant's trade fixtures and relocation costs, provided such
awards do not reduce Landlord's award. Nothing contained herein shall diminish
Tenant's right to deal on its own behalf with the condemning authority.
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18. HAZARDOUS WASTE INDEMNIFICATION.
-------------------------------
A. Definitions.
-----------
(1) Hazardous Substances. As used herein, "Hazardous Substances"
-------------------- --------------------
means any pollutants, flammable or ignitable explosives, radioactive
materials, or hazardous, toxic, corrosive or dangerous wastes, substances or
related materials, exposure to which is prohibited, limited or regulated by
any federal, state, county, regional or local authority or which, even if
not so regulated, may or could pose a hazard to the health and safety of the
occupants of the Leased Premises or the Building, including, but not limited
to, asbestos, lead-based paints, radon, polychlorobiphenyls ("PCBs"),
----
petroleum products and byproducts, including, but not limited to,
underground storage tanks and other petroleum-related matters. Hazardous
Substances shall include substances defined or listed as "hazardous
substances," "hazardous materials," "hazardous wastes," "pollutants,"
"toxic substances," "asbestos-containing materials" or similarly identified
in the Comprehensive Environmental Response, Compensation, and Liability
Act, as now or hereafter amended; in the Hazardous Materials Transportation
Act, as now or hereafter amended; in the Colorado Asbestos Control Act, (S)
25-7-501, et seq., C.R.S., as now or
-- ---
hereafter amended; and in any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating, relating to
or imposing liability or standards of conduct concerning any hazardous,
toxic or dangerous waste, substance or material; and shall include any
substances or mixture regulated under the Toxic Substance Control Act of
1976, as now or hereafter amended; and any "toxic pollutant" or "pollutant"
under the Clean Water Act, as now or hereafter amended, or under the
Colorado Water Quality Control Act; or any hazardous air pollutant under the
Clean Air Act, as now or hereafter amended, and any "hazardous waste" as
defined in (S) 00-00-000 of the Colorado Revised Statutes.
(2) Release. As used herein, "RELEASE" means any spilling, leaking,
------- -------
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
migrating, leaching, dumping or disposing into the environment (including
the abandonment or discarding of barrels, containers and other closed
receptacles containing any Hazardous Substance or pollutant or contaminant)
on, from, under, within or affecting the Leased Premises or the Building or
surrounding area, or transported to or from the Leased Premises or the
Building, including continuing migration of Hazardous Substances into or
through the soil, surface water or groundwater.
(3) As used herein, "HAZARDOUS SUBSTANCES LAWS" means all federal,
-------------------------
state and local environmental, health or safety laws, ordinances,
regulations, rules of common law or policies regulating Hazardous
Substances, including, without limitation, those governing the generation,
use, refinement, handling, treatment, removal, storage, production,
manufacture, transportation or disposal of Hazardous Substances.
B. Prohibitive Usage of Hazardous Substances. Tenant shall not cause or
-----------------------------------------
permit any Hazardous Substance to be used, stored, generated, released or
disposed of on or in the Leased Premises, the Common Areas, or the Building by
Tenant, Tenant's agents, employees, contractors or invitees, without first
obtaining Landlord's prior, written consent, which may be withheld, in
Landlord's sole and absolute discretion, for any reason or no reason whatsoever.
In the event such written consent is obtained by Tenant, any and all Hazardous
Substances permitted on the Leased Premises or in the Building, and any and all
containers therefor, shall be used, kept, stored and disposed of in a manner
that complies with all federal, state and local laws or regulations applicable
to any such Hazardous Substances. Notwithstanding anything set forth to the
contrary herein, Tenant shall not Release any material into the atmosphere,
ground, sewer system or any body of water, if such material (as reasonably
determined by Landlord or any governmental authority) does or may pollute or
contaminate the same, or may adversely affect: (1) the health, welfare or
safety of persons, whether located on the Leased Premises or elsewhere; or, (2)
the condition, use or enjoyment of the Building or any other real or personal
property surrounding the Building.
C. Tenant's Duty to Disclose. Tenant shall disclose to Landlord, prior to
-------------------------
Tenant's using, storing or disposing of any Hazardous Substances, the name and
approximate amount of all Hazardous Substances which Tenant intends to store,
use or dispose of on the Leased Premises or the Building (with Landlord's
consent). In addition, Tenant shall, subsequent to
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such usage, storage or disposal, disclose to Landlord the names and amounts of
all Hazardous Substances which were actually used, stored or disposed of on the
Leased Premises or the Building.
D. Indemnification by Tenant. Tenant hereby agrees that Tenant shall be
-------------------------
fully liable for all costs and expenses related in any way to the use, storage
and Release or disposal of Hazardous Substances kept on the Leased Premises or
the Building by the Tenant, and the Tenant shall give immediate notice to the
Landlord of any violation or potential violation of the provisions of subsection
(2) herein. Tenant shall defend, indemnify and hold harmless Landlord, its
officers, directors, shareholders, agents, employees, participants, successors
and assigns, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, losses (including, without limitation, a
decrease in value of the premises or damages due to loss or restriction of
rentable or useable space), costs or expenses (including, without limitation,
attorneys' fees and expenses, including, without limitation, fees and expenses
of both outside and in-house counsel), charges, injury to persons, property or
natural resources, administrative and judicial proceedings and orders,
injunctive relief, remedial action requirements and enforcement actions of any
kind or nature, whether known or unknown, contingent or otherwise, arising out
of or in any way related to:
(1) The use, presence, disposal, Release or threatened Release, by
Tenant, of any such Hazardous Substances on, from or affecting the soil,
water, vegetation, Building, Leased Premises, personal property, persons,
animals or otherwise;
(2) Any personal injury (including wrongful death) or property damage
(real or personal) arising out of or related to Release by Tenant of such
Hazardous Substances;
(3) Any lawsuit brought or threatened, settlement reached or
government or Court order relating to Release by Tenant of such Hazardous
Substances;
(4) Any violation by Tenant of any Hazardous Substances Laws
applicable thereto.
Tenant shall remain liable to Landlord as set forth above, regardless of
when any of the foregoing is discovered, caused by or in the control of Tenant.
Without limitation of any of the foregoing, this Indemnification includes any
and all costs incurred due to any investigation of the Leased Premises or any
clean-up, removal or remediation mandated by a federal, state or local agency or
political subdivision. Such clean-up, removal or remediation may include
determining whether the Property is, after occupancy by Tenant has commenced, in
compliance with all Hazardous Substance Laws after occupancy by Tenant has
commenced, taking any necessary precautions to protect against any Release or
threatened Release by Tenant and taking any and all necessary actions to return
the Leased Premises to the condition existing prior to the presence of any such
Hazardous Substances on the Leased Premises, after occupancy by Tenant has
commenced. Tenant shall first obtain Landlord's written approval, prior to
taking any such remedial action and shall be liable to Landlord for the cost and
expense of any repair of any damage to the Leased Premises, the Building, or any
other property caused by any such precautionary actions, removal, remediation or
disposal.
Tenant, as used in Section 18, has the meaning as defined in Section 41 of
this Lease.
E. Remedial Work. In the event that any investigation, site monitoring
-------------
containment, clean-up, removal, restoration, precautionary actions or other
remedial work of any kind or nature (the "Remedial Work") is required under any
-------------
applicable Hazardous Substances Laws, as a result of, or in connection with, any
Release, suspected Release, or threatened Release by Tenant, Tenant shall,
within 30 days after receipt of information that such Remedial Work is or may be
required (or such shorter period of time as may be required under applicable
law, regulation, order or agreement), commence the performance of, or cause to
be commenced, and thereafter diligently prosecute to completion, the performance
of all such Remedial Work. All Remedial Work shall be performed by one or more
contractors, approved in advance, in writing, by Landlord, and under the
supervision of a consulting engineer approved in advance, in writing, by
Landlord, which consent shall not be unreasonably withheld. All costs and
expenses of such Remedial Work shall be paid by Tenant, including, without
limitation, the charges of such contractors and/or the consulting engineer, and
Landlord's reasonable attorneys' fees and costs, including, without limitation,
fees and costs of both outside and in-house counsel incurred in connection with
monitoring or review of such Remedial Work. In
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the event Tenant shall fail to timely commence, or cause to be commenced, or
fail to diligently prosecute to completion, the performance of such Remedial
Work, Landlord may, but shall not be required to, cause such Remedial Work to be
performed, and all costs and expenses thereof, or incurred in connection
therewith, shall be deemed Additional Rent due from Tenant under the Lease.
F. Representations and Covenants of Tenant.
---------------------------------------
(1) Tenant represents and warrants that:
(a) Tenant has obtained, or will obtain, prior to occupancy, all
certificates, permits, licenses, approvals and authorizations required
by any federal, state, county, regional or local authority whose
jurisdiction includes, in whole or in part, environmental protection or
regulation of Hazardous Substances, for the lawful use or operation of
the Leased Premises;
(b) Tenant shall submit to Landlord copies of all reports or
notices, if any, required to be filed with any governmental authorities
or agencies pursuant to any Hazardous Substances Laws;
(c) Tenant has received no notice of any proceedings or
inquiries before or by a governmental authority with respect to Tenant's
use, in the general operation of its business, of Hazardous Substances;
and,
(d) No claims, litigation, administrative enforcement actions or
proceedings have been made or threatened by any third-party against
Tenant, or any other person, nor have any settlements been reached by or
with any party or parties, public or private, alleging the normal
operation of Tenant's business, due to the use of Hazardous Substances,
creates an undue risk of contamination of the environment, or is likely
to result in the contamination of the property upon which Tenant
operates its business; and,
(e) Tenant does not presently, nor does Tenant have any
expectation in the future of using, storing, disposing or Releasing
Hazardous Materials, whether or not on the Leased Premises, Building or
Common Areas, other than as has been expressly disclosed to Landlord,
in writing, prior hereto.
(2) Tenant shall keep and maintain the Leased Premises in compliance
with any Hazardous Substances Laws, and shall not cause or permit a Release
in violation of any such Hazardous Substances Laws.
(3) Tenant shall not, nor shall Tenant permit any assignees,
subtenants or other occupants of the Leased Premises to, at any time in the
future, cause or permit a Release.
(4) Tenant shall give prompt written notice to Landlord of any pending
claims, or of any proceedings set forth in subsection (F)(1)(d) of this
Section 18.
(5) Tenant shall give prompt written notice to Landlord of Tenant's
discovery of any occurrence or condition on the Leased Premises, or on any
real property adjoining or in the vicinity of the Leased Premises that
could cause the Leased Premises or any part thereof to be subject to any
violations of, or potential remediation action, under any Hazardous
Substances Laws or which would create restrictions relating, in any way, to
the ownership, occupancy, transferability or use of the Leased Premises.
(6) Landlord shall have the right to join and participate in, as a
party if it so elects, any legal proceedings or actions initiated by any
third-party against Tenant and/or against the Leased Premises or the
Building, in connection with any Hazardous Substances Laws, and Tenant
shall pay Landlord's reasonable attorneys' fees and expenses in connection
therewith, including, without limitation, fees and expenses of both outside
and in-house counsel.
G. Landlord's Right to Inspect the Leased Premises. Subject to Section
-----------------------------------------------
9, Landlord and its respective agents and representatives shall have the right,
at any reasonable time, to enter the Leased Premises to make such inspections,
tests and inquiries as Landlord shall deem appropriate, including inspections
for violation of any of the terms of this Indemnity, and for determining the
existence, nature and magnitude of any Release or threatened Release.
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Landlord has no duty, however, to visit or observe the Leased Premises, or to
conduct tests, and no visit, observation or testing by Landlord shall be
construed as a representation that Hazardous Substances are or are not present
in, on or under the Leased Premises, or that there has been or shall be
compliance with any Hazardous Substances Laws, or any other applicable
governmental law. Neither Tenant nor any other party is entitled to rely on any
visit, observation or testing by Landlord. The Landlord owes no duty of care to
protect Tenant or any other party against, or to inform Tenant or any other
party of any Hazardous Substances or any other adverse conditions affecting the
Leased Premises; provided that if landlord has actual knowledge of a violation
of the Hazardous Substances Laws not covered by this Section 18D which may
affect Tenant or its use of the Premises, Landlord agrees to give notice to
Tenant of the violation within a reasonable time thereafter. Landlord shall
give Tenant reasonable notice as provided in Section 9, before entering the
Leased Premises, and shall make reasonable efforts to avoid interfering with
Tenant's use of the Leased Premises in exercising any rights provided herein.
H. Miscellaneous.
-------------
(1) Knowledge of Landlord. Tenant's obligations hereunder shall not
---------------------
be diminished or affected in any respect as a result of any notice or
disclosure, if any, to, or other knowledge, if any, by Landlord of any
Release or threatened Release, or as a result of any other matter related
to Tenant's obligations hereunder, nor shall Landlord be deemed liable, in
any way, for any Release or any other matter related to Tenant's other
obligations hereunder, solely because Landlord had notice, disclosure or
knowledge thereof, whether at the time this Indemnity is delivered or at
any time thereafter.
(2) Event of Default. For as long as this Lease Agreement shall be
----------------
and remain in effect, this Indemnity shall constitute a covenant of, and
agreement by, the Tenant under such Lease Agreement, and any breach by
Tenant hereunder shall constitute an event of default under the Lease
Agreement. After the expiration or earlier termination of the Lease, the
provisions of this Indemnity shall continue to be obligations of Tenant.
(3) Survival of Tenant Obligations. The obligations of Tenant
------------------------------
hereunder shall survive the following events, to the maximum extent
permitted by law:
(a) Expiration of the term of the Lease or the earlier
termination of the Lease, notwithstanding that all or any portion of
any other obligations of Tenant shall have been discharged thereby;
and,
(b) Any termination, cancellation or modification of the Lease,
or any other agreement relating to the Lease. Upon the occurrence of
any of the foregoing, the obligations of Tenant hereunder shall
survive and shall be enforceable against Tenant to the fullest extent
permitted by applicable law.
(4) Rights and Remedies of Landlord. The rights and remedies of
-------------------------------
Landlord under this Indemnity:
(a) Shall be in addition to any other rights and remedies of
Landlord under this Lease Agreement or at law or in equity; and,
(b) May be enforced by Landlord, to the maximum extent permitted
by law, without regard to or affecting any rights and remedies that
Landlord may have under the Lease Agreement, or at law or in equity.
(5) (see Addendum 18H(5))
19. AMERICANS WITH DISABILITIES ACT.
-------------------------------
(1) Provided the Leased Premises is completed in accordance with the
Work Agreement, Tenant shall, at Tenant's sole cost and expense, be
responsible for any alterations, modifications or improvements to the
Premises and the acquisition of any auxiliary aids required under the
Americans With Disabilities Act ("ADA"), including all alterations,
---
modifications or improvements required: (1) as a result of Tenant (or any
subtenant, assignee or concessionaire) being a Public Accommodation (as
such term is defined in the ADA); (2) as a result of the Premises being a
Commercial Facility (as said term is defined in the ADA); (3) as a result
of any leasehold improvements, alterations or
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additions made to the Premises by or on behalf of Tenant or any subtenant,
assignee or concessionaire (whether or not Landlord's consent to such
leasehold improvements or alterations was obtained); or, (4) as a result of
the employment by Tenant (or any subtenant, assignees or concessionaire) of
any individual with a disability.
(2) With respect to the use restrictions set forth in Section 4 of
the Lease, and the restrictions on assignments and subletting set forth at
Section 21 of the Lease, it is hereby specifically understood and agreed
that Landlord shall have no obligation to consent to or permit the use of
the Premises or an assignment of the lease or a sublease of the Premises
(collectively herein a "Use Change") if such Use Change would require the
----------
making of any alterations, modifications or improvements to the Premises,
the Common Areas or other portions of the Building, or the acquisition of
any auxiliary aids under the ADA, unless Tenant performs all such acts and
satisfies Landlord's requirements for financial responsibility for the
costs of such compliance, which requirements may include, by way of
example, posting of a completion bond or establishment of an escrow
account.
(3) Landlord represents that as of the Lease Commencement Date,
subject to this Section 19(1), the Common Areas of the Building will be in
compliance with the ADA as it provides and is interpreted on the Lease
Commencement Date, and that Building Operating Costs charged to Tenant
shall not include any costs required to bring the Building into compliance
with this representation.
20. INSOLVENCY; BANKRUPTCY.
----------------------
A. Insolvency or Threat of Insolvency. If Tenant becomes insolvent, or
----------------------------------
threatens to file bankruptcy or to have a receiver appointed, or if a receiver
is appointed over a substantial portion of Tenant's assets or over the operation
of the Leased Premises, Landlord may elect, at its option, to immediately
terminate this Lease and Tenant shall immediately vacate and surrender
possession of the Leased Premises or, at the Landlord's option, Landlord may
declare a default under this Lease.
B. Bankruptcy.
----------
(1) Assumption or Rejection. If Tenant files, or Tenant's creditors
-----------------------
file, a petition in the United States Bankruptcy Court for a liquidation,
reorganization, arrangement or for other similar relief for Tenant, then
Tenant or the Trustee in Bankruptcy (the "Trustee") must accept and assume
-------
this Lease within 60 days after filing or this Lease shall be deemed
rejected and Tenant shall thereupon immediately vacate and surrender the
Leased Premises to Landlord.
(2) Conditions to Assumption. No election by Tenant or the Trustee
------------------------
in Bankruptcy to assume this Lease shall be effective unless each of the
following conditions, which Landlord and Tenant acknowledge are commer
cially reasonable in the context of a bankruptcy proceeding, have been
satisfied and Landlord has acknowledged such satisfaction, in writing:
(a) The Trustee or Tenant has cured any and all events of
default, or has provided Landlord Adequate Assurance (as defined
below) that:
(i) Within ten days from the date of such assumption,
Tenant or the Trustee will cure all monetary defaults under this
Lease; and
(ii) Within 30 days from the date of such assumption, Tenant
or the Trustee will cure all non-monetary defaults under this
Lease;
(b) The Trustee or Tenant has compensated Landlord (or has
provided to Landlord Adequate Assurance that within ten days from the
date of assumption Landlord will be compensated) for any pecuniary
loss incurred by Landlord arising from any and all defaults of Tenant
or the Trustee, or both;
(c) The Trustee or Tenant has provided Landlord with Adequate
Assurance of the future performance of each of Tenant's or Trustee's
obligations under the Lease; provided, however, that:
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(i) The Trustee or Tenant shall also deposit with Land
lord, as security for the timely payment of all Rent, an amount
equal to six months' Rent; and
(ii) The obligations imposed upon the Trustee or Tenant
shall continue with respect to Tenant or any assignee of the
Lease after the completion of the bankruptcy proceedings.
(d) The assumption of the Lease will not:
(i) Breach any provision in any other lease, mortgage,
financing agreement or other agreement by which Landlord is bound
relating to the Building; or
(ii) Disrupt, in Landlord's judgment, the tenant mix of the
Building or any other attempt by Landlord to provide a specific
variety of offices and retail stores in the Building which, in
Landlord's judgment, would be most beneficial to all of the
tenants and would enhance the image, reputation and profitability
of the Building operation.
(3) Adequate Assurance. For purposes of this Section 18, Landlord
------------------
and Tenant acknowledge that, in the context of a bankruptcy proceeding of
Tenant, at a minimum "Adequate Assurance" shall mean:
------------------
(a) The Trustee or Tenant has and will continue to have
sufficient unencumbered assets after the payment of all secured
obligations and administrative expenses to assure Landlord that the
Trustee or Tenant will have sufficient funds to fulfill the
obligations of Tenant under this Lease as they come due, and to keep
the Leased Premises properly staffed with sufficient employees to
conduct a fully-operational, actively-promoted business on the Leased
Premises; and
(b) The Bankruptcy Court shall have entered an Order segregating
sufficient cash payable to Landlord and the Trustee or Tenant shall
have granted a valid and perfected first lien and secu rity interest
or mortgage in property of Tenant or Trustee, accept able as to value
and kind to Landlord, to secure to Landlord the obligation of the
Trustee or Tenant to cure monetary or non-monetary defaults under this
Lease within the time periods set forth above.
The foregoing shall not limit Landlord's other rights and remedies under
the United States Bankruptcy Code including but not limited to the right to file
a claim against Tenant and obtain the maximum amount allowed in connec tion with
such bankruptcy proceeding.
21. ASSIGNMENT, LETTING AND SUBLETTING.
----------------------------------
A. Landlord's Consent Required. Except as provided in 21A of the
---------------------------
attached Addendum, Tenant, its legal representatives and successors in interest,
shall not, whether by operation of law or otherwise, assign, sublet, or
otherwise transfer or encumber this Lease, the Leased Premises or any part
thereof, respectively, without first obtaining the written consent of Landlord,
which Landlord will not unreasonably withhold. If Tenant is a corporation, any
transfer of this Lease from Tenant by merger, consolidation or liquidation or
any change in the ownership, or power to vote the majority of the outstanding
stock of Tenant, shall constitute an assignment for purposes of this Lease.
Subject to 21A of the Addendum, if Tenant is a partnership, limited liability
company, or similar entity, a change in the entity structure which results in
more than 49% of the equitable interest in such entity being owned by persons
different than at the time of the Lease Date, or which results in more than 49%
of the voting rights or decision making rights being exercisable by persons
other than those persons entitled to exercise the voting/decision making rights
on the Lease Date, shall constitute an assignment of this Lease. Any assignment
made without Landlord's approval or without strict compliance with the
requirements of this Section, in addition to constituting an Event of Default by
the Tenant, shall be voidable by Landlord.
B. Review and Approval. As a condition to any request to assign,
-------------------
transfer or sublet the Leased Premises or any part thereof, Tenant shall submit
to Landlord for Landlord's review and approval a copy of the proposed assignment
or sublease, a description of the proposed use of the Leased Prem ises by the
potential assignee or sublessee, and current (and a reasonable
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amount of historical) financial information regarding the potential assignee or
sublessee. Tenant shall pay all costs and expenses incurred by Landlord in
connection with Landlord's review of any requested assignment or sublease,
including reasonable attorneys' fees, and shall pay to Landlord a fee of $500 as
a proposed assignment consideration fee. Landlord shall have thirty days after
receipt of such information and fee to review and to approve or reject the
requested assignment, transfer or sublease. If an assignment or sublease is
requested, Landlord may direct Tenant to require the assignee or sublessee to
pay 90% of the current fair market rental rate for comparable space in the
Building or, if no office space in the Building is then for rent or has been
leased within the prior six months, then for comparable space in comparable
buildings in the Denver Technological Center, as determined in good faith by
Landlord, if the rental rate of this Lease is less than 90% of the prevailing
market rental rate for such space. In such event, any assignment or sublease to
be approved by Landlord shall incorporate 90% of the current prevailing market
rental rate. Any rent payable to Tenant by any such sublessee or assignee in
excess of the rent provided under this Lease shall be paid to Landlord.
C. Tenant Remains Liable. Notwithstanding any permitted assignment,
---------------------
subletting or other transfer or encumbrance, Tenant shall at all times remain
directly, primarily and fully responsible and liable for the payment of the Rent
herein specified and for compliance with all of Tenant's other obligations under
the terms, provisions and covenants of this Lease. Upon the occurrence of an
"Event of Default" as hereinafter defined, if the Leased Premises or any part
thereof are then assigned, sublet, or otherwise transferred or encumbered,
Landlord, in addition to any other remedies provided herein, or by law, may at
its option collect rent owing by such assignee, sublessee or transferee,
directly from such assignee, sublessee or transferee and apply such rent against
any sums due to Landlord from Tenant hereunder, and no such collection shall be
construed to constitute a novation or a release of Tenant from the further
performance of Tenant's obligations hereunder.
D. Requirements.
------------
(1) Conditions Precedent. Landlord may withhold its consent to any
--------------------
such assignment, letting or subletting, if such assignment, letting or
subletting would result in the assignment, leasing or subleasing of:
(a) The Leased Premises to any party, business or lessee who
proposes to conduct a business therein which is not in conformance
with the Permitted Use; or
(b) The Leased Premises to any party, business or lessee who is
then a lessee of the Building if Landlord has or will have during the
ensuing six months suitable space for rent in the Building; or
(c) The Leased Premises at a rental rate less than 90% the then
current prevailing market rate for comparable premises in the Building
or other comparable buildings in the DTC.; or
(d) The Leased Premises to a party whose business is of a
character which does not, in Landlord's reasonable opinion, comport
with the character of a first class office building in the Denver
Technological Center, taking into consideration the percentage of
space it would occupy in the Building; or
(e) Less than 10,000 square feet of the Rentable Area of the
Leased Premises to a sole subtenant; or
(f) [Deleted]
(g) The Leased Premises to a party whose financial condition and
credit rating is not equal to or better than that of, a tenant who
would be acceptable to Landlord for similar office space.
(h) The Leased Premises to any party, business or lessee whose
use of the Leased Premises, Building or appurtenances to the Leased
Premises will result, in Landlord's reasonable opinion, in an increase
in Building Operating Costs or wear and tear on the Leased Premises or
Building beyond that expected by Tenant's use; or,
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(i) The Leased Premises to any party, business or lessee whose
tenancy will, in the opinion of the Landlord, potentially downgrade
the real estate market's classification of the Building.
(2) Subject to Landlord's Rights. Any sublease or assignment is
----------------------------
expressly subject to the provisions of this Lease. No sublease shall permit
the subtenant to pay rent in advance for a period of more than one month
and no such sublease or assignment shall alter, diminish, or impair any of
Tenant's obligations or liability under this Lease, or any rights or
remedies of Landlord.
(3) Required Documentation. Simultaneously with any permitted
----------------------
assignment or sublease: (a) the assignee or sublessee must assume all of
Tenant's obligations under this Lease in a form which is satisfactory to
Landlord; (b) assignee or subtenant must acknowledge in a form which is
satisfactory to Landlord, that such party is, in all respects, subject to
the terms and provisions of this Lease; (c) Landlord must be provided with
a complete executed copy of the assignment or sublease; and, (d) any
Guarantor or other person obligated under or liable for the Lease
performance shall have executed and delivered to Landlord a ratification of
the Lease and consent to the assignment/sublease agreeing that such
assignment/sublease will in no way affect such Guarantors' (or other
persons') obligations or liabilities.
E. Election to Terminate. With respect to any proposed, sublease,
---------------------
requested by Tenant, Landlord may elect, by notifying Tenant in writing within
twenty days of receipt of Tenant's request for Landlord's consent, to cancel and
terminate this Lease as to the portion to be included in the sublease, and as to
any proposed assignment unless Tenant's request is withdrawn in writing by
notice to Landlord given within 15 days after Landlord advises Tenant that it
will not approve the assignment.
22. RULES AND REGULATIONS.
---------------------
Tenant covenants that Tenant and its agents, representatives, employees,
invitees, visitors or those claiming under Tenant will at all times observe,
perform and abide by all the general rules and regulations promulgated by
Landlord from time-to-time. Landlord's rules and regulations in effect on the
date hereof are attached hereto and made a part hereof as Exhibit D. Such rules
and regulations may be changed, from time-to-time, upon written notice to
Tenant; and the new rules and regulations shall go into effect ten days after
the mailing of such notice.
23. PARKING.
-------
Except as provided on the Base Lease Term Sheet (Part 1), Tenant and its
employees and invitees shall have the non-exclusive privilege to use the number
of non-reserved parking spaces as stated in the Basic Lease Term Sheet in the
areas designated therein pursuant to any rules and regulations relating to
parking adopted by Landlord from time-to-time. Tenant shall not use any parking
spaces not specifically allocated to Tenant. Neither Tenant nor its employees,
servants or any persons commonly occupying the Building shall use, enjoy, or
occupy any space designated as visitor parking. Any breach or violation of this
covenant or any rules and regulations pertaining to parking space usage by
Tenant shall constitute a material Event of Default under this Lease. Tenant
agrees to cooperate with Landlord and other tenants in the use of parking
facilities. If Landlord determines parking facilities are becoming crowded,
Landlord may take any other steps necessary to correct such condition. The
charge for the parking spaces as stated in Part 1 shall be paid monthly along
with Base Rent, except that there shall be no charge for the first three months
of the Lease Term that those spaces are available for use (it being understood
that some of the covered parking may not be available on the Lease Commencement
Date).
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24. SIGNS.
-----
Except as provided in 24 of the Addendum, Tenant shall not install, paint,
display, inscribe, place or affix any sign, picture, advertisement, symbol,
notice, lettering or direction (hereinafter collectively referred to as "Signs")
-----
on any part of the Leased Premises or the Building without the prior written
approval of Landlord. Landlord may prescribe a uniform pattern of Signs for all
tenants. Any Signs which have been installed without Landlord's prior written
approval may be removed by Landlord and the cost of removal, repair and
restoration charged to Tenant as Additional Rent hereunder. Upon expiration of
this Lease, all Signs installed by Tenant shall be removed by Tenant and any
damage resulting therefrom shall be promptly repaired by Tenant, or such removal
and any repair and restoration may be done by Landlord and the cost therefor,
plus 20% to cover Landlord's overhead and administration, charged to Tenant as
Additional Rent hereunder.
25. [Deleted]
26. QUIET ENJOYMENT; UNAVOIDABLE DELAY.
----------------------------------
A. Quiet Enjoyment. If, and so long as, Tenant pays Rent and keeps and
---------------
performs each and every other term, covenant and condition herein contained on
the part and on behalf of Tenant to be kept and performed, Tenant shall be
entitled to quietly enjoy the Leased Premises without hindrance or molestation
by Landlord, subject to the terms, covenants and conditions of this Lease.
B. Contest of Taxes. Landlord shall pay all taxes and assessments on the
----------------
Building so as not to jeopardize Tenant's use of the Leased Premises. The
foregoing notwithstanding, Landlord shall be entitled to contest any tax or
assessment which it deems to be improperly levied against the Building so long
as such contest does not unreasonably interfere with Tenant's use of the Leased
Premises. Landlord is under no obligation to undertake such contest. The cost
of any such contest (including legal expenses) shall be a Building Operating
Cost.
C. Independent Covenants. Except as provided in this Lease, this Lease
---------------------
and the obligations of Tenant to pay Rent and perform all of the terms, coven
ants and conditions on the part of Tenant to be performed shall in no way be
affected, impaired or excused because Landlord, due to Unavoidable Delay, is (a)
unable to fulfill any of its obligations under this Lease, or (b) unable to
supply or is delayed in supplying any service expressly or impliedly to be
supplied, or (c) unable to make or is delayed in making any repairs,
replacements, additions, alterations or decorations, or (d) unable to obtain or
supply or is delayed in obtaining or supplying any equipment or fixtures.
Landlord shall in each instance exercise reasonable diligence to effect
performance of its obligations when and as soon as possible. However, Landlord
shall be under no obligation to pay overtime labor rates or to provide
uninterrupted services. Tenant's obligation to pay Rent and perform the other
covenants set forth in this Lease shall be construed as independent covenants,
in no way dependent upon any covenants of Landlord under this Lease. Tenant
waives and releases any right or claim of setoff or deduction against any Rent
accruing under this Lease.
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D. Unavoidable Delay. "Unavoidable Delay" shall mean as applicable any
-----------------
and all delays beyond Landlord's or Tenant's reasonable control, including
without limitation, delay: caused by Tenant or Landlord; caused by governmental
restrictions, or by governmental regulations or controls; caused by governmental
authorities; due to order of civil, military or naval authority; arising out of
governmental preemption; due to strikes, labor disputes, lockouts, shortage of
labor or materials, inability to obtain materials or reasonable substitutes
therefor, default of any building or construction contractor or subcontractor;
due to acts of God; caused by fire, earthquake, floods, explosions, actions of
the elements, extreme weather conditions; due to enemy action, civil commotion,
riot or insurrection, fire or other unavoidable casualty; due to delays in
obtaining governmental permits or approvals; or arising from any other cause
beyond Landlord's or Tenant's control. (see Addendum 26D)
27. SURRENDER.
---------
Upon the expiration or earlier termination of this Lease or Tenant's
possession, Tenant shall surrender the Leased Premises, including but not
limited to all Tenant Improvements made by Landlord and all additional
improvements and alterations made by Tenant (unless otherwise directed by
Landlord to remove), peaceably to Landlord in a sound, safe, sanitary,
serviceable, reasonably attractive, and "broom clean" condition, and otherwise
in substantially the same condition as received, subject only to (A) the effects
of any casualty that Tenant is not required to restore by this Lease and (B)
deterioration from normal use. Except as expressly provided otherwise in this
document for any termination of this Lease because of any casualty, Tenant's
failure to surrender the Premises as required by this paragraph is an immediate
Event of Default. Tenant shall remove all of its furniture, equipment and other
personal property. Tenant's obligation to observe or perform this covenant
shall survive the expiration or other termination of this Lease.
28. HOLD OVER TENANCY.
-----------------
If (without execution of a new lease or written extension) Tenant shall
hold over after the expiration or termination of this Lease or Tenant's
possession, Tenant may, at Landlord's option, be deemed to be occupying the
Leased Premises as a tenant from month to month, which tenancy may be terminated
as provided by law. During such tenancy, Tenant shall pay to Landlord 150% of
the then current Base Rent plus all other Rent, as and when provided for herein,
and Tenant shall be bound by all of the terms, covenants and conditions of this
Lease. If Tenant holds over after the expiration or termination of this Lease or
Tenant's possession without Landlord's permission, then such continued
possession shall be deemed a tenancy at suf ferance, and Tenant shall pay to
Landlord 200% of the then current Base Rent plus all other Rent, as and when
provided for herein, prorated on a daily basis until Tenant surrenders
possession as required by this Lease.
29. TENANT'S DEFAULT.
----------------
A. Events of Default. It shall be an "Event of Default" if:
----------------
(1) Non-Payment. Tenant shall fail to pay any monthly installment of
-----------
Rent or any other charge or payment required of Tenant hereunder (although
no legal or formal demand has been made therefor) and such failure shall
continue for a period of ten days after the date such pay ment was due;
and, with respect to only two failures to pay in any calendar year, within
10 days after notice to Tenant of the failure.
(2) Non-Performance. Tenant shall violate or fail to perform any of
---------------
the other conditions, covenants or agreements made by Tenant in this Lease,
and such violation or failure shall continue for a period of 20 days after
written notice thereof to Tenant by Landlord; provided that if the default
cannot be cured within 20 days, then Tenant shall not be in default if it
begins to cure the default within 20 days and diligently pursues it to
completion within not more than 45 days.
(3) Insolvency. Tenant admits in writing its inability to pay debts
----------
generally as they become due;
(4) General Assignment. Tenant shall make a general assignment for
------------------
the benefit of its creditors or shall file or threaten to file a petition
for bankruptcy or other reorganization, liquidation, dissolution or
similar relief;
-E-2-
(5) Proceedings. A proceeding is filed against Tenant seeking any
-----------
relief mentioned in (4) above which is not dismissed within 60 days after filing
(Tenant shall give prompt notice to Landlord of the filing of any such
proceedings and within such 60-day period shall provide Landlord with adequate
assurances that any such proceeding is not meritorious and in the event such
assurances are not given, or in Landlord's opinion, deemed to be inadequate, an
Event of Default shall be deemed to have occurred immediately on the filing of
such proceeding; if such adequate assurances are timely given, the proceeding
shall be dismissed by Tenant with due diligence, which dismissal may occur more
than 30 days after the filing of the proceeding);
(6) Appointment of Trustee. A trustee, receiver or liquidator shall
----------------------
be appointed for Tenant or a substantial part of its property;
(7) Abandonment. Tenant shall abandon any substantial portion of the
-----------
Leased Premises or vacate the Premises for more than 20 days;
(8) Mortgage. Tenant shall mortgage, assign (except as otherwise
--------
provided in this Lease) or otherwise encumber its leasehold interest; other than
to CoBank, ACB pursuant to the Leasehold Assignment and Consent pertaining to
this Lease dated August 8, 1995.
(9) Recordation. Tenant shall record this Lease or any memorandum or
-----------
notice of it (as more specifically prohibited in Section 46); other than the
memorandum referred to in Section 46.
(10) Cessation of Business. Tenant shall cease or suspend normal
---------------------
business operations within the Leased Premises for a period of more than 20
consecutive days (except for any period required for restoration after any
casualty);
(11) Unrelated Proceedings. Execution or other process, judicial or
---------------------
administrative, issues by, through, under, or against Tenant with respect to
Tenant's interest in this Lease or the Leased Premises, or both, and, within 30
days thereafter, is not stayed, released, satisfied, or dis charged, or
provision made for its discharge according to its terms; or any such stay
thereafter is vacated, released, or discharged for any reason, including
affirmance on appeal, and such process then is not within 30 days thereafter
released, satisfied, or discharged, or provi sion made for its discharge
according to its terms;
(12) Lien on Premises. Any federal, state, or local tax lien, or any
----------------
claim of lien for labor, services, or materials, or any other lien, encumbrance,
or a adverse claim of any nature whatsoever, including, without limitation, a
lis pendens or other notice of pendency, is recorded, filed, or asserted against
--- -------
or with respect to the Leased Premises or the Building or the Rent by, through,
under, or against Tenant, or otherwise relates to an obligation that Tenant is
required to perform under this Lease, and is not within 10 days thereafter
discharged by payment or bonded over upon demand; or
(13) Transfer. Any assignment, sublease or transfer of Tenant's
--------
interest in this Lease, or the Leased Premises, except in compliance with the
requirements of this Lease, including any transfer by operation of law.
(14) Non-Occupancy. Failure to take occupancy or execute the Lease
-------------
Commencement Rider as required by the Lease.
B. Remedies.
--------
(1) Cumulative Rights. If an Event of Default occurs, then Land lord
-----------------
may:
(a) give Tenant written notice of Landlord's intention to
terminate this Lease on the date of such given notice or any later
date specified therein, and on such specified date Tenant's right to
possession of the Leased Premises shall cease and this Lease shall
thereupon be terminated;
(b) without further notice, reenter and take possession of the
Leased Premises, or any part thereof, without authorization of any
court, and repossess the same as of Landlord's former estate, and
expel Tenant and those claiming through or under Tenant, and remove
the effects of either or both (forcibly, if necessary)
-E-2-
without being deemed guilty of any manner of trespass and without
prejudice to any remedies for arrears of Rent or for Tenant's
preceding breaches of covenants, and without liability to Tenant for
any loss of profits. Should Landlord elect to reenter as provided
herein, or should Landlord take possession pursuant to legal
proceedings or any notice provided for by law, Landlord may, from
time-to-time, without terminating this Lease, relet the Leased
Premises or any part thereof, on behalf of Tenant for such term or
terms and at such rent or rents, and upon such other terms and
conditions as Landlord may deem advisable in Landlord's sole
discretion (including concessions, free rent, and payment of
commissions) with the right to make alterations and repairs to the
Leased Premises. No such re entry or taking of possession of the
Leased Premises by Landlord shall be construed as an election on
Landlord's part to terminate this Lease, unless a written notice of
termination is given to Ten ant by Landlord. Tenant shall continue to
pay to Landlord all Rent owing under this Lease on the dates when same
become due, except that Tenant shall be entitled to a credit against
such Rent for any amounts collected by Landlord, if any, from
reletting of the Leased Premises on behalf of Tenant;
(c) advance such monies, and take such other action, for Ten
ant's account as reasonably may be required to cure or mitigate any
default or Event of Default. Tenant agrees to reimburse Landlord for
such advances, as Additional Rent, upon demand from Landlord. Any such
advance, and any cost or expense so incurred, shall bear interest at
the rate of 2% per month, accrued daily and compounded monthly, until
paid by Tenant;
(d) enter upon the Leased Premises, by force if necessary,
without being liable for prosecution or any claim for damages there
for, and do whatever Tenant is obligated to do under the terms of this
Lease; and Tenant agrees to reimburse Landlord upon demand, as
Additional Rent, for any reasonable expenses which Landlord may incur
in thus effecting compliance with Tenant's obligation under this
Lease, plus 10% of the amount of such expenses to reimburse Landlord
for its administrative expense and overhead. Any such expense so
incurred by Landlord (together with the 10% added thereto) shall bear
interest from the date of notice to Tenant at the rate of 2% per
month, compounded monthly, until paid by Tenant. Tenant further agrees
that Landlord shall not be liable for any damages to Tenant resulting
from such action, whether caused by the negligence of Landlord or
otherwise;
(e) if the Landlord elects to terminate the Lease, collect as
"Liquidated Damages" an amount equivalent to (i) the total unpaid Rent
-------------------
which would have accrued for the period between the date of Landlord's
termination of this Lease and the then applicable lease expiration
date (such period shall be called the "Unexpired Term of the Lease"),
---------------------------
plus "Landlord's Expenses and Losses" (as further described
----
hereinafter), less the "Fair Rental Value of the Leased Premises" for
----
the Unexpired Term of the Lease. Landlord's Expenses and Losses shall
include all expenditures incurred by Landlord, or which Landlord
reasonably anticipates Landlord will incur, in making the Leased
Premises suitable for re-rental to a new tenant, all other expenses
incurred, or which Landlord reasonably anticipates Landlord will
incur, in re-rental of the Leased Premises including, by way of
example, the following: the cost of repair, alteration, cleaning and
restoration of the Leased Premises to a condition commensurate with a
first class office building leasehold premises; any brokerage
commissions which Landlord incurs, or reasonably anticipates Landlord
will incur, in connection with the re-rental; any attorneys' fees
which Landlord incurs, or reasonably anticipates will be incurred, in
preparing and negotiating a new lease agreement for the re-rental; the
value of any rental concessions, which Landlord must provide to re-
rent the Leased Premises. Landlord's Expenses and Losses shall also
include, by way of example, an amount equal to the Fair Rental Value
of the Leased Premises during the period of time determined to be
necessary to locate and obtain a new tenant to occupy the Leased
Premises (in other words, the liquidated damages shall include the
amount of rent not being received during the estimated marketing
time); and shall include the Fair Rental Value of the Leased Premises
for any period of time during which it is reasonably determined by
Landlord to be necessary to give "free rent" to a new tenant (that is,
occupancy without any obligation to pay rent) as an inducement to
relet the Leased Premises to a new tenant (or, if as an inducement it
is reasonably determined by Landlord that it will be necessary to give
to a new tenant a reduced
-E-2-
rent, then an amount equal to the Fair Rental Value for the reduced
rent period, the length of which period shall be reasonably determined
by Landlord, minus the amount of the reduced rent expected to be
received, which amount shall be reasonably determined by Landlord).
For the purposes of this paragraph, the Fair Rental Value of the
Leased Premises, the amount of any rental concessions, and the length
of marketing time shall all be determined by a commercial real estate
broker selected by Landlord, in Landlord's sole discretion, who is not
an employee of Landlord, who specializes in leasing commercial office
space in the market area in which the Building is located (which
market shall be determined by such broker in the broker's sole
discretion but without any reduction for real estate commissions and
without regard to the condition of and the tenant improvements in the
Leased Premises) and who has leased commercial office space in such
market area for at least the eight (8) years preceding such
determinations. Such determinations by the broker shall be final and
binding on the parties hereto, not subject to review. The Tenant
expressly waives and releases the Landlord of and from any obligation
inferred herein or imposed by law to mitigate damages, adopting, in
lieu thereof, the foregoing liquidated damages provision;
(f) recover as "Actual Damages" any reasonable costs and
--------------
expenses properly incurred by Landlord for terminating this Lease, or
Tenant's right to possession, as the case may be, including any
leasing commissions remaining payable in connection with this Lease,
the unamortized balance of any prepaid leasing commissions with
respect to this Lease, the unpaid Rent (including all Base Rent and
Additional Rent) for the portion of the Lease Term, up to the date of
termination of the Lease (if ever), any losses or damages owing to any
new tenant of the Leased Premises occasioned by landlord's inability
to deliver possession of the Leased Premises to such new tenant due to
Tenant's failure or refusal to vacate the Leased Premises at the time
of such termination; and other professional compensation, costs, and
expenses, as provided in this Lease, less any rent received during
----
such time period from the Leasehold Premises;
(g) apply the Security Deposit to Landlord's losses in such
order as Landlord elects. Landlord must account for such application
only as and when the full extent of Landlord's damage is known, or the
Security Deposit is exhausted, whichever occurs first;
(h) [Deleted]
(i) See Addendum 29B(i)
(2) Survival of Obligations. If Landlord elects to take possession of the
-----------------------
Leased Premises without terminating this Lease, any such repossession shall
not relieve Tenant of its obligations and liability under this Lease, all
of which shall survive such repossession. In the event of such
repossession, Tenant shall pay to Landlord all Rent which would be payable
hereunder if such repossession had not occurred, less the net proceeds, if
any, of any reletting or the value of Landlord's use, if any, of the Leased
Premises after deducting all of Landlord's expenses in connection with such
reletting, including, but without limitation, all repossession costs,
brokerage commissions, legal expenses, expenses of employees, costs of
alterations, expenses of preparation for reletting, rental concessions and
free rent. Tenant shall pay such Rent to Landlord on the days on which the
Rent would have been payable hereunder if pos session had not been retaken.
After repossession of the Leased Premises, Landlord may procure the
appointment of a receiver to take possession and collect rents and profits
of the business of Tenant. The receiver may carry on the business of Tenant
and take possession of the personal prop erty used in the business of
Tenant, including inventory, trade fixtures, and furnishings, and use them
in the business without compensation to Tenant. Proceedings for appointment
of a receiver by Landlord, or the appointment of a receiver in the conduct
of the business of Tenant by the receiver, shall not terminate nor forfeit
this Lease unless Landlord has given written notice of termination to
Tenant.
-E-2-
(3) Eviction Proceedings. In the event Landlord commences
--------------------
proceedings (called herein "FED Proceedings") in the nature of a forcible
---------------
entry and detainer or unlawful retention for nonpayment of Rent, for
Tenant's failure to perform its other obligations hereunder, or for
Tenant's failure to deliver possession of the Leased Premises to Landlord
upon the expiration or earlier termination of the Lease, Tenant waives any
right to a trial by jury in such FED Proceedings, Tenant agrees not to file
a counterclaim against Landlord in the FED Proceedings, and Tenant agrees
not to consolidate claims or actions against Landlord in said FED
Proceedings; however, Tenant does not waive its right hereunder to bring
any separate action against Landlord. The commencement of such FED
Proceedings (including but not limited to the delivery of notice and
process therefor regardless of whether such proceedings are actually
commenced), shall not, in and of itself, be deemed to terminate this Lease,
nor to constitute an election of remedies.
(4) Non-Election of Remedies. Pursuit of any of the foregoing
------------------------
remedies shall not preclude pursuit of any of the other remedies herein
provided or any other remedies provided by law or in equity, nor shall
pursuit of any remedy herein provided constitute an election of remedies or
a forfeiture or waiver of any Rent due to Landlord hereunder or of any
damages accruing to Landlord by reason of the violation of any of the
terms, provisions and covenants herein contained. No act or thing done by
Landlord or its agents during the term hereby granted shall be deemed a
termination of this Lease or an acceptance of the surrender of the Leased
Premises, and no agreement to terminate this Lease or accept a surrender of
the Leased Premises shall be valid unless in writing signed by Landlord.
(5) Equitable Relief. Landlord is also entitled, if otherwise
----------------
appropriate, to (a) injunctive or other equitable or declaratory relief in
case of any violation, or any attempted or threatened violation, of any
provision of this Lease; (b) an order compelling the observance or
performance of any such provision; and (c) one or more accountings of
Tenant's obligations under this Lease.
30. PROFESSIONAL FEES AND COSTS.
---------------------------
If Landlord or Tenant employs any attorneys, appraisers, architects,
brokers, engineers, or other professionals (collectively, "Professionals") with
-------------
respect to any Event of Default by Tenant or a default by Landlord, the
defaulting party upon demand will pay, or reimburse the other for, as the case
may be, all reasonable compensation for all such Professionals so employed,
regardless of whether suit or other proceeding is instituted (including, without
limitation, FED Proceedings) and, if instituted, will pay all cost and expense
(including reasonable legal fees) for any such arbitration, administrative,
trial, appellate and other proceedings. Tenant will also pay other costs of
collection incurred and any costs, expenses, and reasonable professional fees
that otherwise may be sustained or incurred by Landlord involving the
collection, enforcement, validity, or interpretation of this Lease or involving
any use, activity or installation by Tenant.
31. ACCORD AND SATISFACTION; REINSTATEMENT OR EXTENSION.
---------------------------------------------------
A. No Accord and Satisfaction. No receipt and retention by Landlord of
--------------------------
any payment tendered by Tenant in connection with this Lease will give rise to
or support or constitute an accord and satisfaction, notwithstanding any
accompanying statement, instruction or other assertion to the contrary (whether
by notation on a check or in a transmittal letter or otherwise) unless Land lord
expressly agrees to an accord and satisfaction in a separate writing duly
executed by the appropriate persons. Landlord may receive and retain, abso
lutely and for itself, any and all payments so tendered, notwithstanding any
accompanying instructions by Tenant to the contrary, and may account for such
payments as partial payments on account, notwithstanding any accompanying
instructions, statements or assertions by Tenant to the contrary. Landlord shall
be entitled to treat and apply any such payments as being received on account of
any item or items of Rent, Additional Rent, interest, expense or damage due in
connection herewith in such amounts and in such order as Landlord may determine
in its sole option.
B. No Reinstatement or Retention. No payments of Rent or other sums due
-----------------------------
by Tenant to Landlord after termination of this Lease or after the giving of any
notice (other than a demand for payment) by Landlord to Tenant shall reinstate,
continue or extend the term of this Lease or affect any notice given to Tenant
prior to the payment of such money unless expressly agreed to by Landlord in
writing.
-E-2-
32. LANDLORD'S DEFAULT.
------------------
Landlord shall not be in default under this Lease unless Landlord fails to
perform any required obligation for at least 30 days after written demand
specifying the exact nature of the obligation that Landlord allegedly has failed
to perform. If the nature of Landlord's obligation is such that more than 30
days is reasonably required for performance, then Landlord will not be in
default if Landlord promptly begins performance within such 30-day period and
pursues it diligently and continuously to completion.
33. LIMITATION OF LANDLORD'S LIABILITY.
----------------------------------
The obligations of Landlord under this Lease do not constitute personal
obligations of Landlord or of Landlord's property management agent, nor of the
individual partners, directors, officers, shareholders or employees of Landlord,
or Landlord's property management agent, and Tenant shall look solely to the
real estate that is the subject of this Lease and to no other assets of Landlord
or Landlord's property management agent for satisfaction of any liability in
respect, directly or indirectly, of this Lease and Tenant will not seek recourse
against Landlord or Landlord's property management agent, or the individual
partners, directors, officers, shareholders or employees of Landlord or
Landlord's property management agent, or any of the personal assets of any of
them, other than the real estate which is the subject of this Lease, for such
satisfaction or for any deficiency judgement should Tenant be unable to satisfy
any liability owed to it.
34. LANDLORD'S RESERVED RIGHTS.
--------------------------
Without notice and without liability to Tenant, Landlord shall have the
right to:
A. Building Change. Change the name of the Building, the street address
---------------
of the Building, add additional property to that underlying the Build ing,
construct other buildings or improvements on such property, to change the size,
Rentable Area or Common Area of the Building or to undertake any similar
changes;
B. Building Signs. Install and maintain reasonable Signs on the exte
--------------
rior of the Building;
C. Rules and Regulations. Make rules and regulations as, in the judgment
---------------------
of Landlord, may from time-to-time be needed for the safety of the tenants, the
care and cleanliness of the Building and the preservation of good order therein.
Tenant shall be notified in writing when each such rule and regulation is
promulgated;
D. Grants of Property Rights. Grant utility easements or other
-------------------------
easements to such parties, or replat, subdivide or make such other changes in
the legal status of the land underlying and surrounding the Building as Landlord
shall deem necessary, provided such grant or changes do not substantially or
materially interfere with Tenant's use of the Leased Premises as intended under
this Lease; and
E. Sale of Building. Subject to Tenant's Right of First Refusal, sell
----------------
the Building and assign this Lease to the purchaser (and upon such assignment be
released from all obligations under this Lease). Tenant agrees to attorn to such
purchaser, or any other successor or assignee of Landlord through foreclosure or
deed in lieu of foreclosure or otherwise and to recognize such person as
Landlord under this Lease, as provided in the Section below pertaining to
Subordination and Attornment.
-E-2-
35. SUBORDINATION AND ATTORNMENT.
----------------------------
A. Subordination. At Landlord's election, this Lease shall be subject and
-------------
subordinate to all mortgages and deeds of trust which may now or hereafter
encumber the real property of which the Leased Premises are a part, and to all
renewals, modifications, consolidations, replacements and extensions of any such
mortgages and deeds of trust. This clause shall be self-operative and no
further instrument of subordination shall be required in order for the same to
be effective. However, Tenant hereby agrees to execute and deliver to Land
lord, if so requested, any and all instruments in writing which may be required
by Landlord or any lender to subordinate Tenant's rights acquired by this Lease
as aforesaid. Landlord is irrevocably appointed Tenant's attorney-in-fact to
act in Tenant's name, place and stead if Tenant fails or refuses to deliver any
such executed documents.
B. Attornment. Tenant agrees to attorn to any purchaser of the Building,
----------
or any other successor owner or assignee of Landlord through foreclosure or deed
in lieu of foreclosure.
36. ESTOPPEL CERTIFICATE.
--------------------
A. Contents. Within 10 business days after request therefor by Landlord,
--------
its agents, successors or assigns, Tenant shall deliver, in recordable form, a
certificate to any proposed investor, mortgagee or purchaser, or to Landlord,
together with a true and correct copy of this Lease, certifying, if true (or if
not true, stating why it is not) (1) that this Lease is in full force and
effect, without modification, (2) the amount, if any, of prepaid Rent and the
Security Deposit paid by Tenant to Landlord, (3) that Landlord, as of the date
of the certificate, has performed all of its obligations due to be performed
under this Lease and that there are no de fenses, counterclaims, deductions or
offsets outstanding, or other excuses for Tenant's performance under this Lease,
or stating those claimed by Tenant, (4) that Tenant knows of no proceedings,
judicial or administrative, that are pending or threatened against Tenant, the
Leased Premises or the Building, and (5) any other fact, statement or matter
reasonably requested by Landlord or such proposed mortgagee or purchaser, which
does not modify or conflict with Tenant's rights or obligations under this
Lease. Some of the additional statements or matters which may be included in
the certificate or agreement Tenant signs under Section 34 or this Section 35
are included in Exhibit E to this Lease.
---------
B. Failure to Deliver. Tenant acknowledges that this Lease is a material
------------------
inducement for Landlord to build the Building and for a lender to finance or
refinance the construction of the Building. Tenant's failure to deliver such
certificate in the time provided and within 10 days after notice to Tenant of
its failure to do so (a) shall be conclusive upon Tenant: (1) that this Lease
is in full force and effect, without modification except as may be represented
by Landlord; (2) that there are no uncured defaults in Landlord's performance
and Tenant has no right to offset, counterclaim, defenses or deduction against
Rent or Landlord hereunder; (3) that no more than one month's Rent has been paid
in advance; and, (4) that Tenant may be declared in default of this Lease by
Landlord and (b) shall entitle Landlord to collect from Tenant upon demand an
amount equal to 24 months Base Rent as liquidated damages for its default,
provided notice has been delivered to Tenant's president, general counsel, Vice
President-Legal Affairs or to the registered agent in Colorado for Tenant.
Additionally, upon Tenant's failure to deliver, Landlord may deliver any such
certificate as Tenant's attorney in fact, Tenant hereby irrevocably appointing
Landlord as its true and lawful attorney in fact for such purpose and all other
purposes contemplated by this Lease, acknowledging Landlord's right of
appointment which irrevocable appointment is coupled with an interest.
37. [Deleted]
38. AMENDMENT.
---------
This Lease constitutes the entire agreement between the parties and shall
not be amended or modified in any manner except in writing signed by both
parties.
39. WAIVER.
------
No covenant or term of this Lease shall be waived except with the express
written consent of the waiving party. Mere forbearance or indulgence in any
regard, or failure to exercise any right in one or more instances, shall not be
construed as a waiver of the right to strict performance of this Lease. No
waiver by Landlord of any violation or breach of any of the
-E-2-
terms, provisions and covenants herein contained shall be deemed or construed to
constitute a waiver of any other violation or breach of any of the terms,
provisions and covenants herein contained. Landlord's acceptance of the payment
of Rent or other payments hereunder after the occurrence of an Event of Default
shall not be construed as a waiver of such default, unless Landlord so notifies
Tenant in writing. No attempted surrender of the Leased Premises, by Tenant's
delivery to Landlord of the keys or otherwise, shall waive, limit or otherwise
impair any right or remedy of Landlord unless Landlord agrees in writing.
Forbearance by Landlord to enforce one or more of the remedies herein provided
upon an Event of Default shall not be deemed or construed to constitute a waiver
of such default or of Landlord's right to enforce any such remedies with respect
to such default or any subsequent default.
40. NOTICES.
-------
All notices required by this Lease shall be in writing, sealed in an
envelope and delivered in person or mailed by U.S. Registered or Certified Mail,
return receipt requested, postage prepaid to the addresses specified on the
Basic Lease Term Sheet, or to such other addresses as either party desig nates
by notice, as provided in this paragraph, to the other party, from time-to-time,
or by courier. Notice shall be effective as of the date delivered in person; or,
in the case of mailing by Registered or Certified Mail, shall be deemed
effective three (3) calendar days after the date postmarked whichever is sooner.
41. BINDING EFFECT; GENDER.
----------------------
Subject to the limitations, restrictions, conditions and provisions in
Section 21, this Lease shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns. As used herein, the
singular shall be deemed to include the plural form, and the use of any gender
shall be deemed to include all genders. The terms "Landlord" and "Tenant" shall
include the officers, directors, partners, employees, agents, repre sentatives,
invitees, contractors, subcontractors, investors, licensees and guests of the
Landlord or Tenant, whichever is applicable whenever the context so permits.
Verbs and pronouns in the singular number are uniformly used throughout this
Lease regardless of gender, number or fact of incorporation of the parties
hereto. All references to "days" shall mean calendar days unless business days
are expressly specified.
42. RIDERS AND ATTACHMENTS.
----------------------
The written riders, exhibits, addendums or supplemental provisions, if any,
attached or added hereto are incorporated herein and are made a part of this
Lease by reference. The absence or omission of any exhibit, addendum or rider
shall not affect the validity or enforceability of this Lease.
43. SEVERABILITY.
------------
The parties intend this Lease to be legally valid and enforceable in
accordance with all of its terms to the fullest extent permitted by law. If any
term hereof shall be finally held to be invalid or unenforceable, the parties
agree that such term shall be stricken from this Lease, the same as if it never
had been contained herein, and in lieu thereof, there shall be added as a part
of this Lease a clause or provision as similar in terms to such invalid or
unenforceable term as may be possible and still be valid and en forceable. Such
invalidity or unenforceability shall not extend to or oth erwise affect any
other term of this Lease, and the unaffected terms hereof shall remain in full
force and effect to the fullest extent permitted by law, the same as if such
stricken term never had been contained herein.
44. TIME; DUTIES OF TENANT REQUIRE STRICT PERFORMANCE.
-------------------------------------------------
Time is of the essence hereof. The obligations and duties of Tenant
required hereunder require the strict performance by Tenant and substantial
performance shall not be deemed adequate.
45. BROKER'S INDEMNIFICATION.
------------------------
As part of the consideration for the granting of this Lease, Tenant
represents and warrants to Landlord that no broker or agent negotiated or was
instrumental in the negotiation or consummation of this Lease, except the Broker
of Record and any Tenant's Broker specified in the Basic Lease Term Sheet.
Tenant agrees to indemnify Landlord against any loss, expense,
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cost or liability incurred by Landlord as a result of a claim by any other
broker or finder claiming through Tenant.
46. RECORDING LEASE.
---------------
Landlord and Tenant agree not to record this Lease or any memorandum other
than the one signed by both parties on the same date as this Lease, or notice of
it. In the event Tenant records this Lease or any other memorandum or notice of
it, the same shall constitute an Event of Default by Tenant.
47. ENTIRE AGREEMENT.
----------------
This Lease and the Riders, Addendums and Exhibits attached, if any, form a
part of this Lease together with the rules and regulations adopted and
promulgated by Landlord in the manner provided herein and set forth all the
covenants, promises, assurances, agreements, representations, conditions,
warranties, statements, and understandings (the "Representations") between
---------------
Landlord and Tenant concerning the Leased Premises and the Building, and there
are no Representations, either oral or written, between Landlord and Tenant,
other than those in this Lease. This Lease supersedes and revokes all previous
negotiations, arrangements, letters of intent, offers to lease, lease proposals,
brochures, other representations and information conveyed, whether oral or in
writing, between the parties or their respective representatives or any other
person purporting to represent Landlord or Tenant. Tenant acknowledges that it
has not been induced to enter into this Lease by any representations not set
forth in this Lease, it has not relied on any representation not set forth in
this Lease, no representations, other than those set forth in this Lease
Agreement, shall be used in the interpretation or construction of this Lease,
and Landlord shall have no liability for any consequences arising as a result of
any representations not set forth in this Lease.
48. [Deleted]
49. EXECUTION OF LEASE, AUTHORIZATION OF PARTIES.
--------------------------------------------
Execution of this Lease by Tenant and submittal to Landlord for Land lord's
execution shall be deemed an offer by Tenant to lease the Leased Prem ises
subject to the terms and provisions of this Lease, which may be accepted by
Landlord at Landlord's election. Subject to the provisions of the Section below
entitled "LENDER APPROVAL," this Lease shall not be binding upon Landlord until
---------------
fully executed by Landlord, and a fully executed copy of this Lease is delivered
to Tenant. Execution of this Lease by Tenant and Landlord shall constitute a
personal representation and warranty of each such executing person that he is
fully authorized to execute this Lease on behalf of his principal, and that this
Lease is valid and binding upon Landlord or Tenant, respectively. Tenant agrees
to deliver to Landlord such resolutions, authorizations and consents as may be
requested by Landlord evidencing such authorization and the binding effect of
this Lease upon Tenant.
50. LENDER APPROVAL.
---------------
If Landlord must obtain lender approval of this Lease, then the Lease shall
not be effective unless and until such approval is received from such Lender by
Landlord in writing. If such approval has not been obtained within one month
after Tenant's execution hereof, this Lease shall, at the option of Landlord, be
void and both parties shall be released from all obligations hereunder.
51. CONSTRUCTION OF LEASE.
---------------------
This Lease shall be construed according to the laws of the state in which
the Leased Premises are located. All terms and provisions contained in this
Lease have been freely negotiated by the parties in good faith after mutual
discussion, and shall be interpreted and construed as having been drafted by and
for the benefit of all parties. LANDLORD HAS ADVISED TENANT TO CONSULT WITH
LEGAL COUNSEL REGARDING THE LEGAL EFFECT OF THIS LEASE. IF TENANT FAILS TO DO
SO, TENANT ASSUMES ALL RISKS OF ANY LEGAL CONSEQUENCES ARISING PURSUANT TO THE
TERMS OF THIS LEASE. EACH TERM AND EACH PROVISION HEREIN HAS BEEN SEPARATELY
NEGOTIATED AND AGREED UPON BY BOTH PARTIES. Paragraph headings have been
inserted for convenient reference only, and shall not limit, expand, or
otherwise alter the provisions of this Lease.
52. Addendum.
--------
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The Addendum attached to this Lease is a part of this Lease.
THIS LEASE is executed as of the date first above written.
"LANDLORD"
__________________________________
a ________________________________
By: __________________________________
Its: _____________________________
"TENANT"
__________________________________
a ________________________________
ATTEST:
_____________________ By: __________________________________
Its:______________________________
TENANT NOTARIAL ACKNOWLEDGEMENT
-------------------------------
STATE OF COLORADO )
) (S)
COUNTY OF _____________________________ )
The foregoing instrument was acknowledged before me this ____ day of
_________________, 199____, by _________________________________ as
________________________________________ of
_________________________________________________, a
________________________________________, on behalf of the
________________________________________________, as "Tenant."
WITNESS my hand and official seal.
My Commission expires: ___________________________________.
________________________________________________
Notary Public
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EXHIBIT A
---------
Floor Plan of Leased Premises
-----------------------------
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EXHIBIT B
---------
Legal Description of Building
-----------------------------
Approximately 4.8 acres of land located near the southwest corner of DTC
Boulevard and Belleview Ave. in Greenwood Village, Colorado in a part of the
following described land:
A parcel of land in the Northeast quarter of Section 16, Township 5 South, Range
67 West of the 6th Principal Meridian, Greenwood Village, Arapahoe County,
Colorado, more particularly described as follows:
Commencing at the Northwest corner of said Northeast quarter of Section 16;
thence S 00 degrees 29 minutes 50 seconds W along the westerly line of said
Northeast quarter a distance of 521.88 feet; thence S 89 degrees 30 minutes 10
seconds E perpendicular to said westerly line a distance of 45.00 feet to the
point of beginning;
Thence continuing S 89 degrees 30 minutes 10 seconds E tangent with the
following described curve, a distance of 291.30 feet; thence along the arc of a
curve to the left having a central angle of 90 degrees 36 minutes 51 seconds, a
radius of 224.00 feet, a chord bearing N 45 degrees 11 minutes 25 seconds E a
distance of 318.48 feet and an arc distance of 354.26 feet; thence N 00 degrees
07 minutes 01 seconds W along a line perpendicular to the northerly line of said
Northeast quarter of Section 16 and tangent with the last described curve a
distance of 251.46 feet;
Thence N 89 degrees 52 minutes 59 seconds E along the southerly deed line of
East Belleview Avenue parallel with and 50.00 feet southerly of said northerly
line of the Northeast quarter of Section 16 tangent with the following described
curve, a distance of 675.83 feet;
Thence along the arc of a curve to the right having a central angle of 59
degrees 43 minutes 47 seconds, a radius of 70.00 feet, a chord bearing S 60
degrees 15 minutes 08 seconds E a distance of 69.71 feet and an arc distance of
72.97 feet; thence S 00 degrees 36 minutes 55 seconds W along the westerly deed
line of former South Wabash Street also known as South Tamarac Parkway and DTC
Boulevard and the east line of Block 3, a Subdivision of Section 16 non-tangent
with the last described curve, a distance of 915.94 a feet;
Thence S 89 degrees 53 minutes 15 seconds W along the northerly line of a
Resubdivision of Block 6, Denver Technological Center, Filing No. 2, recorded in
Book 25 Page 94 of the Arapahoe County records, a distance of 1247.39 feet;
Thence N 00 degrees 29 minutes 50 seconds E along the easterly deed line of
South Ulster Street parallel with and 45.00 feet easterly of said westerly line
of the Northeast quarter of Section 16 a distance of 478.18 feet to the point of
beginning.
The exact location of the land on which the Building is located will be
determined by a metes and bounds description to be substituted for this Exhibit
B upon availability.
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EXHIBIT C
---------
Work Agreement
--------------
[LANDLORD VERSION]
LANDLORD: TCD NORTH, INC. Tenant: COMMNET CELLULR,INC.
----------------------- --------------------------
Landlord to induce Tenant, and Tenant to induce Landlord to enter into the
Lease (which is hereby incorporated by reference to the extent that the
provisions of this Work Agreement may apply thereto) and in consideration of the
mutual covenants hereinafter contained, Landlord and Tenant mutually agree as
follows:
1. Definitions. The terms defined in this paragraph, for purposes of this
-----------
Work Agreement, shall have the meanings herein specified, and, in addition to
the terms defined herein, terms defined in the Lease shall, for purposes of this
Work Agreement, have the meanings therein specified.
1A. "Tenant Improvement Allowance" means $20.00 for each square foot of
----------------------------
Rentable Area of the Premises, subject to 4.1(d) below.
1. "Building Standard" means the quality of materials, finishing and
- -----------------
workmanship specified in writing by Landlord for the Building.
2. "Landlord's Architect" means such person or firm as is reasonably
- --------------------
designated by Landlord.
3. "Landlord's Contractor" means such person or firm as is reasonably
- ---------------------
designated by Landlord.
4. "Tenant Improvements" shall have the same meaning as specified in the
- -------------------
Lease, and shall be as shown on the plan prepared by Xxxxx Architects dated June
22, 1995, as revised no later than August 15, 1995 by mutual agreement.
2. Completion of Leased Premises.
-----------------------------
1. (a) Tenant shall meet with Landlord's representative on or before
-
August 18, 1995 to finalize layout drawings for the Leased Premises sufficiently
complete to permit Landlord to prepare and complete structural, mechanical and
electrical drawings for the portion of the Tenant Improvements to be constructed
by Landlord. Such final layout drawings shall include: (i) partition layout and
door location; (ii) electrical outlet locations; (iii) Tenant's telephone
systems location of outlets; and (iv) light switches. Based upon such Tenant
approved drawings with Tenant's requirements indicated thereon, Landlord shall
direct its engineers to prepare mechanical, electrical and structural drawings
incorporating such data.
(b) On or before September 21, 1995, Landlord's designer shall complete
and finalize the architectural drawings which are to be coordinated with the
structural, mechanical and electrical drawings prepared by Landlord's engi neers
pursuant to the previous paragraph. The architectural drawings shall include:
(i) a work schedule; and (ii) special blocking requirements for those walls
and/or partitions which will be required to support special weight loads as a
result of Tenant's contemplated design, furniture location and similar matters.
All costs for the initial development of the architectural, mechanical,
electrical, and structural drawings shall be included as part of the cost of the
Tenant Improvements. Upon completion of the drawings by Landlord's engineers and
Landlord's designer, the drawings shall be promptly reviewed by Tenant. In the
event Tenant desires to make any changes in these drawings, Landlord must
approve the changes and Tenant must pay all costs associated with the changes.
Landlord shall have no obligation to commence any work in the Leased Premises
until Tenant shall have approved the drawings by affixing its signature to each
sheet of the drawings. Such signed drawings shall be referred to herein as the
"Working Drawings."
----------------
(c) Landlord's contractor shall perform all work in, on, and about the
Leased Premises in accordance with Building Standard, unless otherwise agreed to
in writing by Landlord and Tenant. The cost of Tenant Improvements to be made by
Landlard which exceed the Tenant Improvement Allowance (including non-standard
architectural, structural, mechanical, fire protection, telephone system and
electrical work), shall be at Tenant's expense. Tenant
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shall, unless waived by Landlord, deposit 50% of the estimated cost of all such
Tenant Improvements to be constructed by Landlord which exceed the Tenant
Improvement Allowance (as it may be increased under (d) below and of all other
Tenant Improvements which Tenant is to pay the cost of, with Landlord prior to
commencement of such work, and Tenant shall pay the actual cost thereof within
ten days after receipt of billing from Landlord. Such billing may be made
periodically as the work is completed. Unless otherwise agreed to in writing by
Landlord and Tenant, all work involved in the completion of Tenant Improve ments
shall be carried out by Landlord's Contractor under the sole direction of
Landlord. Tenant and Landlord shall cooperate with each other and with
Landlord's Contractor to promote the efficient and expeditious completion of
such work.
(d) If Tenant requires an increase in the Tenant Improvement Allowance, it
shall give notice to Landlord by October 6, 1995. In that event, Landlord
agrees to increase it by the amount requested by Tenant, up to a maximum of
$5.00 for each square foot of Rentable Area of the Premises. This increased
amount shall be repaid to Landlord by Tenant in monthly amortized installments
at the rate of 11% per annum over the first five years of the Lease Term, by
adding that amount to the monthly Base Rent. For example, if the Tenant
Improvement Allowance were increased by $5.00 for 60,000 square feet of Rentable
Area, the monthly Base Rent for five years would be increased by $1.30 for each
square foot of Rentable Area.
2. Changes to the approved Working Drawings may be made only by written
-
direction to Landlord on a form approved by Landlord, which direction must be
signed by an authorized representative of Tenant. Landlord may require, as a
condition to any change, that Tenant deposit with Landlord, as a condition to
Landlord's consent to such change, all costs which Landlord estimates Landlord
will incur by virtue of such change, including, but not limited to, the costs of
design, labor, materials, supplies, architectural services, engineering,
estimating, printing, and incidental expenses, and any additional costs incurred
by Landlord as a result of such change, shall be paid for in full by Tenant upon
billing by Landlord.
3. Only with Landlord's express written permission shall Tenant ever
-
alter or modify or in any manner disturb:
(a) Any system or installation of the Building, including, but not limited to,
Central (as defined below) plumbing system, Central electrical system, Central
heating, ventilating and air conditioning systems, Central fire protection and
fire alert systems, Central building maintenance systems, Central structural
systems, elevators, and anything located within the Central core of the
Building; or
(b) Any Branch (as defined below) of any system or installation of the
Building which is located within the Leased Premises, including, but not limited
to, Branch electrical system, Branch heating, ventilating and air conditioning
system, and Branch fire protection and alert system.
For the purposes of this Section 2.3, "Central" shall be defined as that portion
-------
of any Building system or component which is within the core and/or common to
and/or serves or exists for the benefit of other tenants in the Building, and
"Branch" shall be defined as that portion of any Building system or component
------
which serves to connect or extend Central systems into the Leased Premises.
4. Commencement of Rent. Tenant's obligation for the payment of Rent due
--------------------
under the Lease shall commence on the Lease Commencement Date. No abatement of
Rent shall occur pursuant to paragraph 3 of the Lease if the delay in issuance
of a certificate of occupancy for the Leased Premises is due to:
(a) Tenant's failure to furnish promptly information concerning Tenant's
requirements for finishing the Leased Premises or constructing Tenant
Improvements;
(b) Tenant's failure to promptly meet with Landlord's representative as
required by Section 2.1(a), or to promptly approve the Working Drawings, as
required by paragraph (b) of Section 2.01 of this Work Agreement;
(c) Tenant's changes in any of the Working Drawings as finally approved;
(d) Tenant's request for Tenant Upgrades and related work; or
(e) any unauthorized act or omission by Tenant or its agents.
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1.Miscellaneous Provisions.
------------------------
1. For purposes of this Work Agreement, whenever Landlord's consent or
-
approval is required, such consent or approval shall not be unreasonably
withheld.
2. Anything in the Lease to the contrary notwithstanding, notices and
-
other items to be delivered pursuant to this Work Agreement shall be effective
upon receipt of same by the party to whom such notice or item is directed.
3. Should any provision of the Lease be in conflict with this Work
-
Agreement, the terms of this Work Agreement shall control.
If the foregoing correctly sets forth our understanding, kindly
acknowledge your approval in the space provided below for that purpose.
"LANDLORD"
___________________________________
a _________________________________
By: ___________________________________
Its: ______________________________
"TENANT"
___________________________________
a _________________________________
ATTEST:
____________________ By: ___________________________________
Its: ______________________________
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EXHIBIT D
---------
Rules and Regulations
---------------------
1. The sidewalks, entrances, halls, corridors, elevators and stairways of
the Building shall be kept clear of debris and shall not be obstructed or used
for smoking, storage, or as a waiting or lounging place by Tenant, or its
agents, servants, employees, invitees, licenses and visitors.
2. Landlord reserves the right to refuse admittance to the Building at
any time other than between the hours of 7:00 a.m. and 6:00 p.m. Monday through
Friday, and 7:00 a.m. to 12:00 noon on Saturday, to any person not producing
both a key to the Leased Premises and/or a pass issued by Landlord. In case of
invasion, riot, public excitement or other commotion, Landlord also reserves the
right to prevent access to the Building during the continuance of same. Landlord
shall in no case be liable for damages for the admission or exclusion of any
person to or from the Building.
3. Landlord will furnish each Tenant with two keys to each door lock in
the Leased Premises, and Landlord may make a reasonable charge for any
additional keys requested by Tenant. Tenant shall not alter any lock, or install
new or additional locks or bolts, or any door without the prior written consent
of Landlord. If a lock alteration or installation is made, the new lock must
accept the master key for the Building or Tenant must provide Landlord with
duplicate pass keys for all such locks and bolts. Each Tenant, upon the
expiration or termination of its tenancy, shall deliver to Landlord all keys in
any such Tenant's possession for all locks and bolts in the Building.
4. In order that the Building may be kept in a state of cleanliness, each
Tenant shall during the term of each respective Lease, permit Landlord's
employees (or Landlord's agent's employees) to take care of and clean the Leased
Premises. No Tenant shall cause any unnecessary labor by reason of such
Tenant's carelessness or indifference in the preservation of good order and
cleanliness of the Leased Premises. Tenant will see that (a) the windows are
closed, (b) the doors securely locked, and (c) all water faucets and other
utilities are shut off (so as to prevent waste or damage), each day before
leaving the Leased Premises. In the event Tenant must dispose of crates, boxes,
or similar large items of refuse which will not fit into office waste paper
baskets, it will be the responsibility of Tenant to dispose of same. In no
event shall Tenant set such items in the public hallways or other areas of the
Building or garage facility, excepting Tenant's own Leased Premises, for
disposal.
5. Landlord reserves the right to prescribe the date, time, method and
conditions that any personal property, equipment, trade fixtures, merchandise
and other similar items shall be delivered to or removed from the Building. No
iron safe or other heavy or bulky object shall be delivered to or removed from
the Building, except upon prior, written approval of Landlord, and by
experienced safe men, movers or riggers approved in writing by Landlord. Tenant
shall pay all cost and expense incurred necessary to determine and/or review if
the structural integrity and load capacity limitations of the Leased Premises
are sufficient to accommodate such heavy, bulky objects. All damage done to the
Building by the delivery or removal of such items, or by reason of their
presence in the Building, shall be paid to Landlord, immediately upon demand, by
Tenant by, through or under whom such damage was done. There shall not be used
in any space, or in the public halls of the Building, either by Tenant or by
jobbers or others, in the delivery or receipt of merchandise, any hand-trucks,
except those equipped with rubber tires.
6. The walls, partitions, skylights, windows, doors and transoms that
reflect or admit light into passageways or into any other part of the Building
shall not be covered or obstructed by any Tenant in any manner whatsoever, and
shall all be subject to the sole discretionary desires of Landlord.
7. The toilet-rooms, toilets, urinals, wash bowls and water apparatus
shall not be used for any purpose other than for those for which they were
constructed or installed, and no sweeping, rubbish, chemicals, or other
unsuitable substances shall be thrown or placed therein. The expense of any
breakage, stoppage or damage resulting from violations of this rule by Tenant or
by Tenant's agent, servants, employees, invitees, licensees or visitors, shall
be borne by Tenant.
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8. No sign, name, placard, advertisement, or notice visible from the
exterior of any Leased Premises, shall be inscribed, painted or affixed by any
Tenant on any part of the Building or Project without the prior written approval
of Landlord. A directory containing the names of all Tenants of the Building
shall be provided by Landlord at an appropriate place on the first floor of the
Building.
9. No signaling, telegraphic, or telephonic instruments or devices, or
other wires, instruments or devices, shall be installed in connection with any
Leased Premises without the prior written approval of Landlord. Such
installations, and the boring or cutting for wires, shall be made at the sole
cost and expense of Tenant and under the control and direction of Landlord,
other than phone outlets normally provided by Landlord as part of the Lease.
Landlord retains in all cases the right to require (a) the installation and use
of such electrical protecting devices that prevent the transmission of excessive
currents and electricity into or through the Building, (b) the changing of wires
and of their installation and arrangement underground or otherwise as Landlord
may direct, and (c) compliance on the part of all using or seeking access to
such wires with such rules as Landlord may establish relating thereto. All such
wires used by Tenant must be clearly tagged at the distribution boards and
junction boxes and elsewhere in the Building, with the number of the Leases
Premises to which said wires lead, the purpose for which said wires are used,
and the name of the company operating same.
10. Tenant, its agents, servants, employees, shall not (a) go upon the
roof of the Building, (b) use any additional method of heating or air
conditioning the Leased Premises, (c) sweep or throw any dirt or other substance
from the Leased Premises into any of the halls, corridors, elevators, or
stairways of the Building, (d) bring in or keep in or about the Leased Premises
any vehicles or animals of any kind, (e) install any radio or television
antennae or any other devise or item on the roof, exterior walls, windows or
window xxxxx of the Building, (f) place objects against glass partitions, doors
or windows which would be unsightly from the interior or exterior of the
Building, (g) place any object, fixture or personal property on the Leased
Premises which would exceed the load capacity of the floor of the Leased
Premises (including, without limitation, the placement of any bookshelving more
than 5 foot in height), or (h) use any portion of the Leased Premises: (i) for
the storage of merchandise for sale to the general public, (ii) for lodging or
sleeping, (iii) for cooking (except that the use by any Tenant of Underwriter's
Laboratory listed equipment for brewing coffee, tea and similar beverages or the
use of by Tenant of a similarly approved microwave oven shall be permitted,
provided that such use is in compliance with law), or (iv) for the selling or
display of any goods, items or merchandise, either at wholesale or retail.
Tenant shall not use any electrical circuit servicing the Leased Premises beyond
the rated capacity of such circuit and, if Landlord determines that any circuit
is being overloaded, Tenant shall reconnect its electrical devices in a manner
determined and/or approved by Landlord as necessary or convenient to rectify all
overloading situations. Tenant, its agents, servants and employees, invitees,
licensees, or visitors shall not permit the operation of any musical or sound
producing instruments or device which may be heard outside the Leased Premises,
Building or garage facility, or which may emit electrical waves which will
impair radio or television broadcast or reception from or into the Building.
11. Tenant shall not store or use in any Leased Premises any (a) ether,
naphtha, phosphorous, benzol, gasoline, benzine, petroleum, crude or refined
earth or coal oils, flashlight power, kerosene or camphene, (b) any other
flammable, combustible, explosive or illuminating fluid, gas or material of any
kind, or (c) any other fluid, gas or material of any kind having an offensive
odor.
12. No canvassing, soliciting, distribution of hand bills or other written
material, or peddling shall be permitted in the Building, and tenant shall
cooperate with Landlord in prevention and elimination of same.
13. Tenant shall give Landlord prompt notice of all accidents to, or defects
in, air conditioning equipment, plumbing, electrical facilities, or any part or
appurtenances of the Leased Premises.
14. If the Leased Premises demised to Tenant becomes infested with vermin,
Tenant, at its sole cost and expense, shall cause the Leased Premises to be
exterminated from time-to-time to the satisfaction of Landlord and shall employ
such exterminators as shall be approved by Landlord.
15. The landscaped grounds adjacent to the Building shall be used for the
enjoyment of Tenant, its agents, servants and employees, without restriction so
long as such parties conduct
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themselves in a manner so as not to disturb, destroy, or litter said grounds.
All parties using the grounds shall comply with laws, ordinances, and rules and
regulations of federal, state and local authorities.
16. Landlord reserves the right to allocate specific parking spaces among
Tenant and other tenants, police the parking areas, and have vehicles towed at
the owner's expense. If Ten ant, its employees, contractors or invitees are
deemed by Landlord to be contributing to overcrowding of the parking areas,
Landlord shall be entitled to charge that portion of the cost thereof to Tenant
which Landlord reasonably determines to be caused by the failure of Tenant, its
employees, contractors, agents and invitees to use the parking in compliance
with the Lease and these Rules and Regulations. Landlord may, at its own
discretion, change the location and nature of the reserved and non-reserved
parking spaces available to Tenant, if any, its employees and invitees, provided
that after such change, there shall be available to Tenant and its employees and
invitees approximately the same number of spaces as available before the change,
which spaces shall be approximately located to the Building.
17. Landlord reserves the right to make reasonable amendments, modifications,
and additions to the rules and regulations heretofore set forth, and to make
additional reasonable rules and regulations, as in Landlord's sole judgment may
from time-to-time be needed for the safety, care, cleanliness and preservation
of good order of the Building.
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EXHIBIT E
---------
ESTOPPEL LETTER
---------------
___________________________
(Date)
_____________________________ ______________________________
_____________________________ ______________________________
_____________________________ ______________________________
(Landlord) (Lender or Other Party)
Re: Lease dated ________________
between ______________________________________________________
(Landlord) and ________________________(Tenant)
Premises:_______________________________________________________________________
Consisting of approximately _________rentable square feet
and the right to use __________ parking spaces
Commencement Date: ____________ Expiration Date:_______________________________
Renewal Options: ___________ options of ______ years each
Current Monthly Base Rent (excluding expense reimbursements
and other additional rent): $_________________
Security Deposit: $______________________________________________
Date Rental PaymentsCommenced:_________________________________________________
Monthly Base Rent Paid Through:________________________________________________
Guarantor:_____________________________________________________________________
Gentlemen:
We are the Tenant under the lease described above (the "Lease"). The
terms referred to above are incorporated into this letter. We understand that
the property of which the Premises is a part is being mortgaged and that the
Lease is being collaterally assigned to the Lender by the Landlord, as part of
the security for the financing of certain property which includes the Premises.
We give you this certificate so that you rely on it as conclusive evidence of
the matters stated below.
Part A. Tenant warrants and represents as follows:
-------
1. We are the Tenant of the Premises, and are in sole possession of
and are occupying the Premises. Tenant has not subleased all or any part of the
Premises or assigned the Lease or any of its rights under the Lease, or
otherwise transferred its interest in all or any part of the Lease or the
Premises, nor has Tenant received any notice of a prior assignment, transfer,
hypothecation or pledge of the Lease or of any rent under the Lease.
2. The attached Lease is a correct and complete copy of the Lease,
is currently in effect and constitutes the entire agreement between Landlord and
Tenant. There are no other agreements, written or oral, between Landlord (or its
predecessor) and Tenant with respect to the Lease, the Premises or the building
in which it is located. The Lease has not been assigned, amended, supplemented,
or changed in any respect, either in writing or orally, except_________________
________________________________________________________.
3. The Commencement Date and Expiration Date of the term of the
Lease are correctly stated above. Tenant has no options or rights, and has not
exercised any options or rights, to cancel, terminate, renew, extend, amend,
modify, or change the term of the Lease, except________________________________.
__________________________________________________.
4. The current Monthly Base Rent is correctly stated above. Monthly
Base Rent, all additional rent and other amounts now due under the Lease have
been paid through the date stated above. The total monthly rent (Monthly Base
Rent and additional rent) Tenant is now paying under the Lease is $_______. The
base year for determining Tenant's share of operating expenses and real estate
taxes payable under the Lease is ___________. No rent or other obligations have
been prepaid. Tenant has not been given or promised and is not entitled to
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any free rent, partial rent, rebates, rental abatements, concessions,
allowances, improvements, or other benefits of any kind, except as expressly
provided in the attached Lease.
5. Tenant has deposited the Security Deposit stated above with
Landlord and none of the Security Deposit has been aplied by Landlord to the
payment of rent or any other amounts due under the lease, and Tenant has
received no notice (and is aware of no right) of Landlord's intent or right to
do so.
6. Any construction, build-out, improvements, alterations, or
additions to the Premises required under the Lease have been fully completed in
accordance with the Lease or otherwise, the existing parking facilities meet the
Lease requirements, and Tenant has accepted the Premises as being in complete
conformity with the Lease.
7. Tenant is not now in default under the Lease and no event or
circumstance has occurred or exists under which Tenant may be in default upon
service of notice or passage of time. Landlord has fully performed all of its
obligations under the Lease and is not in default under any term of the Lease.
In addition, no event or circumstance has occurred or exists under which
Landlord may be deemed in default upon service of notice or passage of time. No
event or condition has occurred, which with the passage of time (after notice,
if any, required by the Lease), would give rise to any right or option of Tenant
to terminate the Lease, move from the Premises or discontinue the operation of
its business from the Premises.
8. Tenant has no claims, defenses, set-offs, or counterclaims
against Landlord or with respect to the payment of any rent or other sums or to
the performance of any of its obligations under the Lease, and Tenant has no
claims or defenses to the enforcement of the Lease by the Landlord.
9. Tenant has not been granted and has not exercised any options or
rights of expansion, purchase, or first refusal concerning the Lease or the
Premises or any other space in the building of which the Premises is a part,
except _____________________________________.
10. Landlord has not given any consent to Tenant (for example,
consent to sublease or alter the Premises) that is required under the Lease
before the taking of any action by Tenant, except_______________________________
___________________________________.
11. Tenant has no knowledge of past or present use or occupancy of
the Premises involving the handling, manufacturing, treatment, use,
transportation, spillage, leakage, dumping, discharge or disposal of hazardous
substances, materials or any waste regulated under local state or federal law.
12. Tenant has not filed, does not contemplate filing and is not the
subject of any filing for bankruptcy or reorganization under any federal
bankruptcy laws or state insolvency laws.
Part B. (Where Letter is Addressed to a Lender) In consideration for the
-------
covenants and agreements stated below and for other valuable consideration:
1. Tenant's interest in the Lease and all of Tenant's rights under
it are and shall be subject and subordinate to the mortgage. The term
"Mortgage", as used herein, includes the mortgage and security interests
referred to above and any and all amendments, supplements, modifications,
renewals, extensions or replacements of or to the Mortgage.
2. Lender agrees that the rights of Tenant under the Lease shall
remain in full force and effect and its possession of the Premises under the
Lease shall not be disturbed by Lender during the term of the Lease and during
any renewal or extension of it made in accordance with its terms, provided and
as long as Tenant performs and continues to perform all of the covenants,
conditions, agreements and obligations that are to be performed by Tenant under
the Lease.
3. After receipt by Tenant of notice from Lender of completion of a
foreclosure under the Mortgage or that Lender has received a conveyance of the
Premises in lieu of foreclosure, Tenant shall attorn to and recognize Lender,
its successors and assigns, or any
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purchaser at the foreclosure sale, as its substitute Landlord under the Lease.
Upon request by either Landlord, Tenant or Lender, the other(s) shall execute
and deliver appropriate agreements of attornment and recognition; however, this
letter shall be self-operative and no such separate agreement shall be required
to effectuate this attornment and recognition. Any such attornment and
recognition of a substitute Landlord shall be upon all of the terms, covenants,
conditions and agreements as set forth in the Lease, except as amended hereby.
4. Tenant agrees that the granting of the security interest referred
to above to Lender does not impair or diminish any of the Landlord's or Tenant's
obligations under the Lease nor impose any of the Landlord's obligations on the
Lender. Tenant agrees to give Lender written notice of any default or alleged
default by Landlord, at the address stated above for the Lender, Tenant further
agrees not to invoke any of its remedies under the Lease during the period that
the Lender is proceeding to cure a default, with due diligence, or is taking
steps with due dilligence to obtain the legal right to foreclose or enter the
Premises.
5. Should the Lender or any other person, party or entity become the
owner of the premises ("New Owner") as a result of a foreclosure sale under the
Mortgage or a conveyance in lieu of foreclosure, Tenant shall have no claim
against the New Owner resulting from, and the New Owner shall not be liable for,
any act, omission and/or breach of a Lease by any prior or subsequent Landlord
under the Lease, including but not limited to the Landlord named above; the
rights of the New Owner in and to the Premises and in, to and under the Lease
shall not be subject to any claim or right of set-off or defense which Tenant
may have against any prior Landlord under the Lease, including but not limited
to the Landlord named above. Upon any sale or other transfer by a New Owner of
its interest in the Premises after acquiring title to it, the New Owner shall
thereupon automatically be released and discharged from all liability thereafter
occurring under the Lease.
6. Tenant shall not prepay any of the rent or income due from it
under the Lease for more than one month in advance, except with the written
consent of Lender.
7. The Lease may be amended or altered only with the written consent
of Lender.
8. Tenant shall not consent to the Lease becoming subordinate to the
lien of any mortgage or security instrument, other than the Mortgage.
9. Tenant acknowledges that Lender will rely upon this letter in
making the loan referred to in this letter.
Part C.
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1. Tenant shall not dispose of, generate, store, treat or release,
or permit the disposal, generation, storage, treatment or release of, any
hazardous or toxic waste, material or substance, as defined in any federal,
state or other environmental, health or safety law or regulation or on, in,
above or under the land on which the Premises is located.
2. Landlord (insert other addresses) shall be entitled to specific
performance of the convenants, agreements and rights contained in this letter.
All remedies at law or in equity, including the right to specific performance,
shall be cumulative.
3. Tenant has no right, title or interest in the Premises or in the
building in or land on which it is located (except as Tenant under the Lease)
evidenced by option, contract, agreement or deed, or otherwise for the purchase
of, or affecting, all or any part of the Premises or in or to such building or
land, whether by verbal understanding or by recorded or unrecorded instrument.
4. Tenant represents and warrants that the person signing this
letter on behalf of Tenant is a duly authorized agent of the Tenant and that the
representatives, warranties and statements made in this letter are binding on
Tenant. This letter is binding upon and insures to the benefit of Landlord,
Tenant and Lender (if applicable) (add other addresses) and their respective
heirs, executors, administrators, personal representatives, successors and
assigns.
5. This letter is governed by and is to be construed and interpreted
in accordance with the laws of the State of Colorado. This letter cannot be
amended or modified in any
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manner other than by agreement in writing signed by Landlord, Tenant and Lender
(if applicable).
6. The address for notices to Tenant under the Lease is correctly
set forth in the Lease.
[NOTE: Appropriate changes will be made to this form of letter where the
----
addressee is someone other than a lender.]
Signed this: ________________________, 19__
__________________________________________
__________________________________________
Tenant
By:_______________________________________
Title:______________________________
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EXHIBIT F
---------
Lease Commencement Rider
------------------------
LANDLORD: ______________________________________________________
______________________________________________________
______________________________________________________
TENANT: ______________________________________________________
______________________________________________________
______________________________________________________
This Lease Commencement Rider is made by Landlord and Tenant pursuant to
that certain Office Lease (the "Lease") entered into as of ________, 199____,
-----
for the Leased Premises known as Suite ____, in the Building known as
________ (the "Premises"). This Rider constitutes a supplementary addendum to
--------
the Lease as contemplated by Article 3 of the Lease.
1. Lease Commencement Date. Landlord and Tenant acknowledge and agree
-----------------------
that the Lease Commencement Date, as contemplated by Article 3 of the Lease, is
____________________________, 199____. Rent as contemplated by the Lease begins
accruing to Landlord's benefit as of such Lease Commencement Date. All covenants
in the Lease contemplated to begin on the Lease Commencement Date shall commence
as of that date pursuant to the Lease.
2. Acceptance of Premises. Tenant has inspected and examined the Leased
----------------------
Premises, and Tenant finds the Premises acceptable and satisfactory in all
respects in their current, "as is" condition, except only the "Punchlist Items"
---------------
listed below. Any work to be completed by Landlord, as contemplated by the
Lease and the Work Agreement attached as Exhibit C to the Lease, has been fully
completed and fulfilled. The following Punchlist Items constitute all matters
which Tenant does not find fully and completely acceptable, and as to which
Tenant desires Landlord to perform corrective work:
Punchlist Items:
---------------
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
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3. Incorporation in Lease. This Rider is incorporated into the Lease, and
----------------------
forms a supplementary and integral part thereof. This Rider shall be construed
and interpreted in accordance with all other terms and provisions of the Lease
for all purposes.
TENANT: LANDLORD:
____________________ _____________________________________
By:__________________________ By:__________________________________
Its: Agent
-F-1-
Addendum to Office Lease (Crescent VIII)
Between TCD North, Inc. as Landlord,
and CommNet Cellular Inc., as Tenant
3. Unless and to the extent caused by Tenant, if the Premises is not Ready for
Occupancy on January 15, 1996, Landlord agrees to pay (or reimburse Tenant for)
the holdover rent owed by Tenant at 0000 Xxxxxxxxx Xxxxx Xxxxxxxxx until the
Premises are Ready for Occupancy. Tenant agrees to make a reasonable effort to
obtain a reduced holdover rent, but there shall be no penalty or default if it
fails to do so. Any days of rent so paid by Landlord shall be credited to and
shall reduce the days of free Rent provided to Tenant under Part I of this
Lease.
6B(1). Building Operating Costs shall not include any cost to the extent
reimbursed to Landlord by insurance.
6D. Notwithstanding the foregoing, Landlord agrees to give Tenant one notice
during each calendar year of nonreceipt of Rent before the late charge(s) shall
be imposed, and in that one event the late charges shall be imposed if the Rent
is not received by Landlord within 5 days and 10 days after that notice is
given. Notice given under Section 29A(1) shall constitute notice under this
paragraph.
7B. Tenant will locate its customer service department on the second floor of
the Building and will require and Landlord shall provide 24 hour, 7 days a week
HVAC and electrical service to that space and to its computer room ("Computer
Room") on the third floor. It is anticipated that these areas will have a
separate meter. Tenant shall pay each month without any markup by Landlord
either to Landlord or directly to the utility company (at Landlord's election)
the cost of these services which are provided outside the Building hours
referred to in Section 7A.
9A. Provided, however, that except in the event of an emergency (in which event
Landlord agrees, when possible, to call the internal security telephone number
provided by Tenant), landlord shall not enter the Computer Room without prior
notice to Tenant and allowing Tenant to have an employee or representative
present during the time Landlord is in the Computer Room.
16A. Restoration; Termination of Lease. If the Leased Premises or the Building
---------------------------------
are destroyed or damaged (collectively called "Damage") by fire, earthquake or
other casualty then subject to the next sentence landlord shall elect and give
notice to Tenant within 45 days after such occurrence, to rebuild and restore
the Leased Premises or such portion as may be destroyed or damaged, or not to
rebuild and restore the Building and Leased Premises.
If the Damage renders 40% or more of the Rentable Area of the Premises
untenantable and if the Premises can be rebuilt and restored within 90 days from
the date that the rebuilding and restoration begins, then, unless landlord
elects to terminate as provided herein, this Lease shall remain in effect with
an abatement of Rent as provided herein; otherwise Tenant shall have the option
to terminate this Lease as to that portion of the Premises which cannot be so
rebuilt and restored by giving notice to Landlord within 30 days after the
occurrence of the Damage. If Landlord elects to rebuild and restore any portion
of the Building or Leased Premises which may be destroyed or damaged, it shall
complete the repairs and restoration within 120 days after (a) if less than 40%
of the Rentable Area of the Premises is untenantable, the date the notice is
given, and (b) if 40% or more of the Rentable Area of the Premises is
untenantable, the date the work begins, which shall be within a reasonable time
after the occurrence of the Damage. If Landlord elects to rebuild and restore as
provided herein (subject to Tenant's right to terminate as provided above), then
during the period of rebuilding and restoration this Lease shall remain in full
force and effect, but Rent shall be abated in proportion to which the Leased
Premises are untenantable. Subject to Tenant's right to terminate above, if
Landlord elects not to rebuild and restore, Landlord shall notify Tenant within
45 days after the occurrence of such Damage and in that event, this Lease shall
be deemed to have been terminated on the date of occurrence of such Damage.
18H(5). Other Tenants in the Building. Landlord agrees to include provisions
-----------------------------
similar to or more restrictive on the tenants than this Section 18 in other
leases in the Building which are entered into prior to or during the Lease Term.
21A. Assignment by Tenant. Provided Tenant is not then in default under this
--------------------
Lease, Tenant shall have the right with Landlord's prior written consent, not to
be unreasonably withheld,
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to assign this Lease (1) to an entity which is and continues either to control
Tenant, to be controlled by Tenant, or to be under the control of another entity
which controls both Tenant and the assignee (control and controlled meaning the
ownership of at lease 50% of the voting stock or voting interest in Tenant, in
that entity or in both Tenant and that entity, whichever is applicable), and (2)
provided the controlling entity's most current financial statements are equal to
or better than the most current financial statements of Tenant, copies of which
shall be provided to Landlord. In the event of such an assignment. Tenant shall
deliver a true and correct copy of the assignment to Landlord within five days
after it is signed, and under which the assignee agrees to assume all of
Tenant's obligations and agreements under this Lease and agrees to be bound by
all of the terms and provisions of this Lease.
24. Sign. Tenant shall have the right to one monument sign to be located at
----
the Building's entrance in accordance with the Denver Technological Center
Architectural Control Committee regulations. The location, size, design, and
type of signage is subject to Landlord's sole approval. Tenant shall be
responsible for all costs associated with the sign, including design,
fabrication, installation, permitting, maintenance and removal as appropriate.
In the event Tenant subleases and/or vacates 50% or more of the Rentable area of
the Premises or is in default under this Lease, all signage rights may be
terminated by Landlord without affecting Tenant's obligation under this Lease.
26D. Unavoidable Delay by Tenant shall not include or apply to the payment of
Rent or other monetary obligations of Tenant, but with respect to other
Unavoidable Delay by Tenant, its obligations under this Lease shall be subject
to and extended by Unavoidable Delay as long as Tenant exercises reasonable
diligence to effect performance of its obligations when and as soon possible.
29B(i) Mitigation. Notwithstanding anything to the contrary contained
----------
elsewhere in this Section 29B, Landlord shall use reasonable efforts to relet
the Premises so as to mitigate its damages pursuant to this Section 29B(1) (b),
provided, however, that so long as Landlord uses such reasonable efforts
Landlord shall in no way be responsible or liable for any failure to relet the
Premises, or any part thereof, or for any failure to collect any Rent due upon
such reletting; and Landlord shall not be required to spend its own funds, to
give priority (or even equal opportunity) to the Premises over other facilities
owned by Landlord or its affiliates or other space available for rent in the
Building or to compromise in any way the terms, uses or credit worthiness of a
tenant upon or to which it would customarily lease space such as the Premises;
and Landlord shall be entitled, in its sole discretion, to seek a single tenant
for the entire Premises, even though it may take a substantially longer period
to obtain such a tenant and its efforts may be unsuccessful; and this
requirement shall not affect in any way Tenant's obligation to obtain Landlord's
consent under Section 21.
52. Option to Expand
----------------
A. The DTC Space. Tenant shall have the option to lease the Denver
-------------
Technological Center's space in the Building, consisting of approximately 13,000
square feet located on the first floor (the "DTC Space"), for a term to begin at
any time after the second year of the Lease Term and ending at the end of the
Lease Term (subject to Section 54), provided (1) Tenant gives Landlord at least
12 months prior notice of its election to exercise this option, (2) at least
four years remain (and will remain on the effective date of the amendment to
this Lease to include the DTC Space), and (3) Tenant is not in default under
this Lease on the date it exercises this option or on the date its lease of the
DTC Space is to take effect. Time is of the essence. The lease of the DTC
Space shall be "as is" (except that DTC shall have the right to remove its
furniture, furnishings, equipment and build-in shelving, kitchen, desks and
other improvements) and without any allowance for tenant improvements, and shall
be at the Fair Rental Value Base Rent (with a Base year or Expense Stop for the
most current year) as determined in this Addendum 54 (Renewal Option).
B. Other Space in the Building. If at any time when there are (and will be
---------------------------
from the effective date of the amendment to include the Other Space) at least
four years remaining on the Lease Term, any other office space in the Building
becomes available for lease (the "Other Expansion Space"), Landlord shall notify
Tenant of the size and location of the space and the rental rate for that space
(which shall be the then market rate for the remainder of this Lease Term for
similar space in the Building or in comparable buildings in the Denver
Technological Center and its vicinity as determined in good faith by Landlord)
and other terms
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on which Landlord wants to lease the Other Expansion Space (the "Other Expansion
Space Terms"). Tenant shall have the option to lease the Other Expansion Space
on the Other Expansion Space Terms by delivering to Landlord notice of its
election to exercise this option within five days after the date Landlord's
notice is given. Time is of the essence.
C. Lease Amendment. If Tenant so exercises either or both of these
---------------
options, then within 10 days thereafter, Landlord and Tenant shall enter into an
amendment to this Lease to add the DTC Space or Other Expansion Space, as
applicable as a part of the Leased Premises and Tenent's Pro Rates Portion of
the Building. Operating Costs shall be increased accordingly. If Tenant does not
so exercise the applicable option, then Landlord shall have the right to lease
all or part of the DTC Space or Other Expansion Space, whichever is applicable,
to one or more other persons or entities.
53. Right of First Refusal to Purchase. If during the Lease Term Landlord
----------------------------------
decides to accept a written offer to sell all of its interest in the Building to
an unrelated person or entity, Landlord shall notify Tenant of its intent to
sell the Building and of the price (which will be the price Landlord is willing
to accept, less any real estate commissions) and terms on which it is willing to
sell the Building (the "First Refusal"). If the Building is one of a number of
buildings offered for sale, the price of the Building shall be separately stated
and the First Refusal shall apply only to the Building. Tenant shall have five
days after Landlord gives notice of the First Refusal to Tenant in which to
deliver to Landlord notice of its election to exercise this right on the terms
stated in the First Refusal. Time is of the essence. If Tenant so exercises
this right, then the sale of the Building shall be closed in accordance with the
terms stated in the First Refusal; otherwise, landlord shall have the right to
sell the Building within one year after the end of Tenant's option to any one or
more other persons or entities at a price not less than 95% of the price stated
in, and on substantially the same as the other terms stated in, the First
Refusal. If Landlord does not so sell the Building within this one year period,
then this Section 53 shall thereafter apply to any other offer which falls under
this Section 53. If the Building is sold in accordance with this Section 53, the
First Refusal shall terminate and shall not apply to any further sale.
54. Renewal Option. Providing Tenant is not in default under this Lease,
--------------
Tenant shall have the option to renewal this Lease for two consecutive five (5)
year periods. The Base Rent for the option period will be the Fair Rental Value
Base Rent (as determined below) in the competitive rental market in which the
Building is located at the time of the renewal. In the event Tenant fails to
give notice to Landlord of Tenant's exercise of the first renewal option at
least 180 days prior to the expiration or termination of the initial Lease Term,
both of these options shall expire and Tenant's option to renew this Lease shall
terminate. If Tenant timely exercises the first option and is not in default
under this Lease, Tenant may exercise the second option by giving notice to
Landlord at least 180 days prior to the expiration or termination of the first
renewal term, and the second option shall expire and Tenant's option to renew
this Lease shall terminate if it fails to timely exercise the option. Time is of
the essence.
If either or both of these options are properly exercised, then the term of
that renewal period shall be included in the definition of Lease Term and,
except for the adjustment of Rent and Base Year as provided below, all of the
provisions of this Lease shall apply to the renewal term(s).
If Tenant properly exercises one or both of the renewal options, then
within 20 days thereafter, Landlord shall deliver to Tenant its computation of
the fair rental value Base Rent for the Leased Premises for that renewal five-
year period and the Base Year or Expense Stop that applies to it, which shall be
determined without any allowance or reduction for brokerage commissions or
leasing fees, tenant improvements, free rent or other rental concessions and
without regard to the condition of or tenant improvements in the Leased Premises
("Fair Rental Value Base Rent"). Tenant shall notify Landlord within 15 days
after it receives Landlord's computation of Fair Rental Value Base Rent if it
disagrees with Landlord's proposal for the Fair Rental Value Base Rent for the
applicable five-year period. If Tenant gives such a notice and Landlord and
Tenant cannot agree upon the Fair Rental Value Base Rent within 15 days
thereafter, then Landlord and Tenant shall select a commercial real estate
broker who specializes in leasing commercial office space in the market area of
the Building and who has leased commercial office space in the Denver
metropolitan area for at least the preceding 10 years ("Commercial Broker") to
determine the Fair Rental Value Base Rent (as defined above), and if they cannot
agree upon a single Commercial Broker within 10
-F-1-
days, then Landlord and Tenant shall each designate a Commercial Broker. If
Landlord and Tenant each select a different Commercial Broker, those brokers
shall make their determination of the Fair Rental Value Base Rent (as defined
above) independently and shall deliver their determination in writing to both
Landlord and Tenant within 15 days of their selection. If the two Commercial
Brokers' Fair Rental Value Base Rent is within a 4% variation, then the average
of their two number shall be the Fair Rental Value Base Rent. If their numbers
vary by more than 4%, then the two Commercial Brokers shall select a third
Commercial Broker who shall make his determination of Fair Rental Value Base
Rent (as defined above) and the average of the two closest numbers of the three
shall be the Fair Rental Value Base Rent. The Fair Rental Value Base Rent so
determined shall be binding on Landlord and Tenant for the applicable five year
period, unless the Fair Rental Value Base Rent is less than the Base Rent for
the current Base Rent, in which case the current Base Rent shall continue as the
Base Rent for the next five-year period. The consulting fee, if any, charged by
the Commercial Broker shall be paid as follows: (a) if the parties agree on one
Commercial Broker or if the two Commercial Brokers select a third, each party
will pay one-half of the fee, if any, they mutually agree to pay that broker;
and (b) if they each select a Commercial Broker, the party who selects the
broker shall be responsible for paying that broker's fee, if any.
55. Confidentiality. Tenant shall maintain in confidence the terms of this
---------------
Lease and any offer or other information provided to Tenant under Sections 53 or
54, except with respect to any attorneys, accountants and governmental
authorities who have a need to know that information and who, except for
governmental authorities, agreed to maintain that information in confidence.
56. Tenant's Equipment. Landlord acknowledges and agrees that all personal
------------------
property, equipment, apparatus, fittings, building fixtures and trade fixtures
installed or stored on the Premises by the Tenant constitute personal property,
not real property, and shall continue to be the personal and exclusive property
of Tenant, including, without limitation, all telecommunication equipment,
towers, switches, cables, wiring and associated equipment or personal property
(collectively, the "Equipment"). The Equipment shall remain at all times the
personal property of Tenant, and neither Landlord nor any person claiming by,
through or under Landlord shall have any right, title or interest (including
without limitation a security interest) in the Equipment. Tenant, and Tenant's
successors in interest, shall have the right to remove the Equipment at any time
during the Term of this Lease or its earlier termination. With respect to the
holder of any mortgage, deed of trust or other lien affecting Landlord's
interest in the Premises, whether existing as of the date hereof or arising
hereafter, Landlord and Tenant hereby agree, acknowledge and declare that the
Equipment is now and shall at all times hereafter remain the personal and
exclusive property of Tenant. The parties further acknowledge and agree that
Landlord shall have no right or authority to xxxxx x xxxx upon or security
interest in any of the Equipment.
57. Roof Antenna. Notwithstanding anything to the contrary contained in this
------------
Lease, Landlord agrees that Tenant shall have the right to install the following
antennas on the roof of the Building, and to install connecting cables thereto
subject to prior approval by Landlord of the location on the roof and the color
of such antennas and subject to prior approval by the Denver Technological
Center Architectural Control Committee ("ACC"):
1 - 9" satellite antenna
1 - 18" satellite antenna
1 - 4 foot microwave antenna
The installation of such antennas shall be subject to paragraph 12.A and
structurally designed by a licensed structural engineer with complete plans and
specifications which shall be subject to the approval of Landlord which will not
be unreasonably withheld.
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