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EXHIBIT 10.5
LEASE AGREEMENT
THIS LEASE, dated as of June 20, 1997, is by and between HIGHLAND PARK
VENTURERS, LLC, a Colorado limited liability company ("Landlord") and VERIO
INC., a Delaware corporation ("Tenant").
1. PRINCIPAL TERMS. Capitalized terms, first appearing in quotations in
this Section, elsewhere in the Lease or any Exhibits, are definitions of such
terms as used in the Lease and Exhibits and shall have the defined meaning
whenever used.
1.1 "BUILDING": Waterview One, 0000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000
1.2 "PREMISES": approximately 33,300 rentable square feet,
consisting of approximately 24,415 rentable
square feet which is the entire 2nd floor
and approximately 8,885 rentable square feet
on the Suite #100
1.3 TERM: "Initial Term": 60 calendar months
"Commencement Date": February 1, 1998
"Expiration Date": January 31, 2003 [THE
EXACT COMMENCEMENT AND EXPIRATION DATES TO
BE DETERMINED IN ACCORDANCE WITH SECTION 5.1
AND THE WORK LETTER]
1.4 "BASE RENT": Annual Per Rentable
Period Square Foot Rate Monthly
------ -------------------- -------
Months 1-36 $21.85 $60,633.75
Months 37-60 $22.00 $61,050.00
[SEE ADDENDUM]
1.5 OPERATING EXPENSES: Base Year: 1998 (with Taxes portion based on
$1.80 per rentable square foot) [SEE EXHIBIT
C] Pro Rata Share: 34.1196% [SEE ADDENDUM]
1.6 "DEPOSIT": $60,633.75 [ALSO SEE ADDENDUM RE LETTER OF
CREDIT]
1.7 "PERMITTED USE": General business office as Internet service
provider
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1.8 "GUARANTOR": None
Address:
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1.9 PARKING: 154 surface spaces
6 covered spaces
1.10 LANDLORD'S Xxxxxx Global Properties, LLC,
NOTICE ADDRESS: 0000 X. Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, XX 00000, Attn: Xxxxxx X.
Xxxxxxxxxx, Esq. or Mr. Xxxx Xxxxx
1.11 LANDLORD'S TAX I.D.: 00-0000000
1.12 TENANT'S NOTICE
ADDRESS:
Precommencement Address: 0000 X. Xxxxxxxx Xxxxxx Xxxxx 000
Xxxxxxxxx, XX 00000
Post Commencement Address: 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000
1.13 TENANT'S TAX I.D.: 00-0000000
1.14 LANDLORD'S BROKER: Vector Property Services, LLC
1.15 COOPERATING BROKER: LundeCommercial Corporate Real Estate
Incorporated
1.16 ATTACHMENTS: [check if applicable]
x Addendum
-----
x Work Letters
-----
Option A -- Landlord Performs
----- Work
Option B -- Tenant Performs
----- Work
x Exhibit A-1 - The Premises
-----
x Exhibit A-2 - Right of First
----- Offer Space
x Exhibit B - Real Property
-----
x Exhibit C - Operating Expenses
-----
x Exhibit D - Commencement
----- Certificate
x Exhibit E - Rules and
----- Regulations
x Exhibit F - Signage
-----
x Exhibit G - Letter of Credit
-----
2. GENERAL COVENANTS. Tenant covenants and agrees to pay Rent and perform the
obligations hereafter set forth and in consideration therefor Landlord leases to
Tenant the Premises as depicted on the plat attached as EXHIBIT A-1, together
with a non-exclusive right, subject to the provisions hereof, to use plazas,
common areas, or other areas on the real property legally described on EXHIBIT B
(the "Real Property") designated by Landlord for the exclusive or non-exclusive
use of the tenants of the Building ("Common Areas"). The
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Building, Real Property, Common Areas, and appurtenances are hereinafter
collectively sometimes called the "Building Complex."
3. TERM. The term of the Lease commences at 12:01 a.m. on the Commencement
Date and terminates at 12:00 midnight on the Expiration Date ("Term" as used
herein shall mean the partial month, if any, between the Commencement Date and
the commencement of the Initial Term as determined herein, the Initial Term, and
any extensions thereof.).
4. RENT. Subject to the provisions below, commencing on the Commencement
Date and on the first day of each month thereafter, Tenant shall pay Base Rent
in the amount stated in Section 1.4, in advance without notice (all amounts,
including Base Rent, to be paid by Tenant pursuant to this Lease as the context
requires are sometimes referred to collectively as "Rent(s)"). Rents shall be
paid without set off, abatement, or diminution at such place as Landlord from
time to time designates in writing.
5. COMPLETION OR REMODELING OF THE PREMISES.
5.1 The Premises shall be located in a Building to be constructed by
Landlord. "Base Building" means the Building upon completion by Landlord of the
base building work that Landlord is obligated to complete in accordance with the
Work Letter. All provisions regarding tenant finish work in the Premises beyond
the Base Building (the "Finish Work") are set forth in the Work Letter. Landlord
shall provide a tenant finish allowance to Tenant and, at Tenant's election,
either Landlord shall contract for completion of the Finish Work for the
Premises (in accordance with Option A Work Letter, attached hereto) or Tenant
shall contract for completion of the Finish Work (in accordance with Option B
Work Letter attached hereto). Tenant shall give written notice to Landlord on or
before August 8, 1997, of Tenant's election to utilize either the Option A Work
Letter or Option B Work Letter; if Tenant fails to give notice by such date,
Tenant shall be deemed to have elected to be governed by the Option B Work
Letter ("Work Letter" as used herein means the work letter elected or deemed
elected under this provision). Except as provided in the Work Letter, Landlord
has no obligation for the completion of the Premises. If Landlord is delayed in
delivering the Premises to Tenant in accordance with the Work Letter, then the
Commencement Date will be postponed in accordance with the Work Letter. If the
Commencement Date occurs on other than the first day of the month in accordance
with the provisions of the Work Letter, then the commencement of the Initial
Term will be delayed to the first day of the month following the Commencement
Date but all provisions hereof, including Tenant's obligation to pay Rent at the
monthly rate set forth in Section 1.4 for Month 1 (prorated for a partial
month), will be in effect as of the Commencement Date. The postponement of
Tenant's obligation to pay Rent and Tenant's right to hold over in temporary
premises located in the Solarium Building, which is owned by an affiliate of
Landlord, in accordance with the terms of the lease between Landlord's affiliate
and Tenant (the "Solarium Lease") is in full settlement of all claims which
Tenant may otherwise have by reason of such delay. If the commencement of the
Initial Term is delayed, the Expiration Date shall be extended so that the
Initial Term will continue for the full period set forth in Section 1.3. As soon
as the Commencement Date occurs, Landlord and Tenant agree to execute a
commencement agreement in the form attached as EXHIBIT D, setting forth the
Commencement Date, the date of commencement of the Initial Term and the
Expiration Date.
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5.2 Subject to the punchlist provisions and provisions with regard to
latent defects in the Work Letter, taking possession of the Premises by Tenant
is conclusive evidence that the Premises are in the condition agreed between
Landlord and Tenant and acknowledgment by Tenant of satisfactory completion of
any work which Landlord has agreed to perform.
6. OPERATING EXPENSES. Tenant shall pay additional Rent in accordance with
EXHIBIT C attached hereto.
7. SERVICES.
7.1 Subject to the provisions below, Landlord agrees, without charge, in
accordance with standards determined by Landlord from time to time for the
Building (which standards shall provide for services at least equivalent to
services provided by office buildings of similar size and quality in the
xxxxxxxxx xxxxxxxx Xxxxxx xxxxxxxxxxxx xxxx): (1) to furnish running water at
those points of supply for general use of tenants of the Building; (2) during
Ordinary Business Hours to furnish to interior Common Areas heated or cooled air
(as applicable), electrical current, janitorial services, and maintenance; (3)
during Ordinary Business Hours to furnish heated or cooled air to the Premises
for standard office use provided the recommendations of Landlord's engineer
regarding occupancy and use of the Premises are complied with by Tenant; (4) to
furnish, subject to availability and capacity of building systems, unfiltered
treated chilled water for use in Tenant's packaged HVAC systems provided that
such systems are approved by Landlord, including strainers, pumping systems and
controls; (5) to provide, during Ordinary Business Hours, the general use of
passenger elevators for ingress and egress to and from the Premises (at least
one such elevator shall be available at all times except in the case of
emergencies or repair); (6) to provide janitorial services for the Premises to
the extent of the Finish Work (including window washing of the outside of
exterior windows); and (7) to cause electric current to be supplied to the
Premises for Tenant's Standard Electrical Usage (items (1) through (7) are
collectively called "Services"). "Tenant's Standard Electrical Usage" means
weekly electrical consumption in an amount determined by (i) multiplying 3.5
xxxxx/square foot by 59 hours and (ii) multiplying the product thereof by the
number of rentable square feet in the Premises. "Ordinary Business Hours" means
7:00 a.m. to 6:00 p.m. Monday through Friday and 9:00 a.m. to 12:00 p.m. on
Saturdays, Legal Holidays excepted. "Legal Holidays" mean New Year's Day, Xxxxxx
Xxxxxx Xxxx Day, Presidents' Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day, and such other national holidays hereafter
established by the United States Government.
7.2 "Excess Usage" means any usage of electricity (1) during other than
Ordinary Business Hours; (2) in an amount in excess of Tenant's Standard
Electrical Usage; or (3) for Special Equipment or for standard HVAC services
during other than Ordinary Business Hours. "Special Equipment" means (a) any
equipment consuming more than 0.5 kilowatts at rated capacity, (b) any equipment
requiring a voltage other than 120 volts, single phase, or (c) equipment that
requires the use of self-contained HVAC units. If Tenant desires Excess Usage,
Landlord will use reasonable efforts to supply the same. Tenant shall reimburse
Landlord for all Landlord's actual costs of providing services for Excess Usage,
including costs for materials, additional wear and tear on equipment, utilities,
and labor (including fringe and overhead costs). Computation of such costs will
be made by Landlord's engineer, based on his engineering survey of Tenant's
Excess Usage. Tenant shall also reimburse Landlord for all costs
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of supplementing the Building HVAC System and/or extending or supplementing any
electrical service, as Landlord determines is necessary, as a result of Tenant's
Excess Usage. Prior to installation or use of Special Equipment or operation of
the Premises for extended hours on an ongoing basis, Tenant shall notify
Landlord of such intended installation or use and obtain Landlord's consent. Not
less than 24 hours' prior notice shall be given Landlord of Tenant's request for
such services. Tenant may request that Landlord install at Tenant's cost a check
meter and/or flow meter to determine the cost of Tenant's Excess Usage. Tenant
shall also pay the cost of replacing light bulbs and/or tubes and ballast used
in all lighting in the Premises other than the standard Building fluorescent
lighting provided by Landlord to all tenants of the Building.
7.3 If Tenant requires janitorial services other than those included as
standard Services, Tenant shall separately pay for such services monthly upon
xxxxxxxx by Landlord, or Tenant shall, at Landlord's option, separately contract
for such services with the same company used by Landlord to furnish janitorial
services to the Building.
7.4 Landlord may discontinue, reduce, or curtail Services (either
temporarily or permanently) when necessary due to accident, repairs,
alterations, strikes, lockouts, Applicable Laws, or any other happening beyond
Landlord's reasonable control. Landlord is not liable for damages to Tenant or
any other party as a result of any interruption, reduction, or discontinuance of
Services (either temporary or permanent) nor shall the occurrence of any such
event be construed as an eviction of Tenant, cause or permit an abatement,
reduction or setoff of Rent, or operate to release Tenant from Tenant's
obligations. Notwithstanding the foregoing, Landlord agrees that if there is an
interruption within Landlord's reasonable control (other than an interruption
resulting from a fire or other casualty subject to the provisions of Section 18)
of the services which Landlord is obligated to provide that renders the Premises
unusable for Tenant's normal office operations and continues for a period of 10
or more consecutive days after Landlord receives notice from Tenant (an
"Unauthorized Interruption"), Tenant's Rent will xxxxx in proportion to the
unusable portion of the Premises, except as provided herein, commencing at the
end of such 10-day period and abatement shall continue until such services have
been restored to permit Tenant's normal office operations; no abatement shall
occur, however, if Landlord has commenced and proceeds with due diligence to
cure such cause or remediate such interruption and it cannot be fully cured or
reasonably remediated within such 10-day period. Landlord agrees to use its
reasonable efforts to cause utility companies to restore any interruptions of
the supply of gas, electricity, and water utilities to the Premises.
7.5 Tenant shall promptly notify Landlord of any accidents or defects in
the Building of which Tenant becomes aware, including defects in pipes, electric
wiring, and HVAC equipment, and of any condition which may cause injury or
damage to the Building or any person or property therein.
8. QUIET ENJOYMENT. So long as an Event of Default has not occurred,
Tenant is entitled to the quiet enjoyment and peaceful possession of the
Premises subject to the provisions of this Lease.
9. DEPOSIT. Tenant has deposited and will keep on deposit at all times
during the Term with Landlord the Deposit as security for the payment and
performance of Tenant's
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obligations under this Lease. If, at any time, Tenant is in default, Landlord
has the right to use the Deposit, or so much thereof as necessary, in payment of
Rent, in reimbursement of any expense incurred by Landlord, and in payment of
any damages incurred by Landlord by reason of such default. In such event,
Tenant shall on demand of Landlord forthwith remit to Landlord a sufficient
amount in cash to restore the Deposit to the original amount. If the entire
Deposit has not been utilized, the remaining amount will be refunded to Tenant
or to whoever is then the holder of Tenant's interest in this Lease, without
interest, within 60 days after the later of the expiration of this Lease or
vacation of the Premises by Tenant. Landlord may commingle the Deposit with
other funds of Landlord. Landlord may deliver the Deposit to any purchaser of
Landlord's interest in the Premises and Landlord shall be discharged from
further liability therefor upon notice to Tenant that such purchaser has
received the Deposit and Letter of Credit. Tenant agrees that if a Mortgagee
succeeds to Landlord's interest in the Premises by reason of foreclosure or deed
in lieu of foreclosure, Tenant has no claim against the Mortgagee for the
Deposit or any portion thereof unless such Mortgagee has actually received the
same from Landlord and Landlord shall take all action required to ensure that
the Deposit (or the portion not utilized in accordance with this Lease) and the
Letter of Credit (to the extent not presented in accordance with this Lease) are
available to any Mortgagee who succeeds to Landlord's interest in the Premises
by reason of foreclosure or deed in lieu of foreclosure. If claims of Landlord
exceed the Deposit, Tenant shall remain liable for the balance.
10. CHARACTER OF OCCUPANCY. Tenant shall occupy the Premises for the
Permitted Use and for no other purpose, and use it in a careful, safe, and
proper manner and pay on demand for any damage to the Premises caused by misuse
or abuse by Tenant, Tenant's agents or employees, or any other person entering
upon the Premises under express or implied invitation of Tenant (collectively,
"Tenant's Agents"). Tenant, at Tenant's expense, shall comply with all
applicable federal, state, city, quasi-governmental and utility provider laws,
codes, rules, and regulations now or hereafter in effect ("Applicable Laws")
which impose any duty upon Landlord or Tenant with respect to the occupation or
alteration of the Premises; provided, however, that Tenant shall not be required
to make any structural changes to the Premises or changes in the mechanical
systems of the Building unless arising from Tenant's specific use of the
Premises (as distinguished from office use generally) or from Tenant's
Alterations. Tenant shall not commit or permit waste or any nuisance on or in
the Premises. Tenant agrees not to store, keep, use, sell, dispose of or offer
for sale in, upon or from the Premises any article or substance prohibited by
any insurance policy covering the Building Complex nor shall Tenant keep, store,
produce or dispose of on, in or from the Premises or the Building Complex any
substance which may be deemed an infectious waste or hazardous substance under
any Applicable Laws, except customary office and cleaning supplies.
11. MAINTENANCE, ALTERATIONS AND REENTRY BY LANDLORD.
11.1 Landlord will (i) make repairs and replacements to HVAC,
mechanical, life safety and electrical systems in the Premises (to the extent
such systems are Building standard) deemed necessary by Landlord for normal
operations of the Building Complex consistent with operations in office
buildings of similar size and quality in the southeast suburban Denver
metropolitan area; and (ii) provide upkeep, maintenance, and repairs to all
Common Areas, including repairs to structural and mechanical components, as
required in order to maintain the existing structure and systems in good, safe
and working condition and consistent
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with standards for upkeep, maintenance and repairs in office buildings of
similar size and quality in the southeast suburban Denver metropolitan area.
Except as provided in this Section or otherwise expressly required in this
Lease, Landlord is not required to make improvements or repairs to the Premises
during the Term.
11.2 After giving Tenant at least 24 hours prior notice (except no
notice shall be required in an emergency or for janitorial services), Landlord
or Landlord's agents or contractors may at any time enter the Premises for
examination and inspection, or to perform, if Landlord elects, any obligations
of Tenant which Tenant fails to perform or such cleaning, maintenance,
janitorial services, repairs, replacements, additions, or alterations as
Landlord deems necessary for the safety, improvement, or preservation of the
Premises or other portions of the Building Complex or as required by Applicable
Laws. After giving Tenant at least 24 hours prior notice, Landlord or Landlord's
agents may also show the Premises to prospective tenants, purchasers and
Mortgagees (provided, however, Landlord shall not show the Premises to
prospective tenants until the last 12 months of the Term, as it may be extended,
or until an Event of Default). Any such reentry does not constitute an eviction
or entitle Tenant to abatement of Rent. Landlord may make such alterations or
changes in other portions of the Building Complex as Landlord desires so long as
such alterations and changes do not unreasonably interfere with Tenant's normal
business operations in the Premises and permit reasonable access to the
Premises. Landlord may use the Common Areas and one or more street entrances to
the Building Complex as may be necessary in Landlord's judgment to complete such
work, provided that Tenant shall have reasonable access to the Premises.
12. ALTERATIONS AND REPAIRS BY TENANT.
12.1 Tenant shall not make any alterations to the Premises during the
Term, including installation of equipment or machinery which requires
modifications to existing electrical outlets or increases Tenant's usage of
electricity beyond Tenant's Standard Electrical Usage (collectively
"Alterations") without in each instance first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld, delayed or
conditioned. Landlord's consent or approval of the plans, specifications and
working drawings for any Alterations shall not constitute any warranty or
representation by Landlord (and shall not impose any liability on Landlord) as
to their completeness, design sufficiency, or compliance with Applicable Laws.
Tenant shall at its cost: pay all reasonable engineering and design costs
incurred by Landlord as to all Alterations, obtain all governmental permits and
approvals required, and cause all Alterations to be completed in compliance with
Applicable Laws and requirements of Landlord's insurance. All such work relating
to Alterations shall be performed in a good and workmanlike manner, using new
materials and equipment at least equal in quality to the Finish Work. All
Alterations, repair and maintenance work performed by Tenant shall be done at
Tenant's expense by Landlord's employees or, with Landlord's prior consent
(which consent shall not be unreasonably withheld or delayed) and subject to any
conditions imposed by Landlord, by other persons requested by Tenant; however,
if such work is not performed by Landlord's employees, Tenant shall pay Landlord
a reasonable supervisory fee upon receipt of an invoice. If Landlord authorizes
such persons to perform work, Tenant shall deliver to Landlord prior to
commencement certificates issued by insurance companies qualified to do business
in the State of Colorado, evidencing that worker's compensation, public
liability insurance, and property damage insurance (in amounts, with companies
and on forms satisfactory to Landlord) are in
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force and maintained by all contractors and subcontractors engaged to perform
such work. All liability policies shall name Landlord, Building Manager, and
Mortgagee as additional insureds. Each certificate shall provide that the
insurance may not be cancelled or modified without 10 days' prior written notice
to Landlord and Mortgagee. Landlord also has the right to post notices in the
Premises in locations designated by Landlord stating that Landlord is not
responsible for payment for such work and containing such other information as
Landlord deems necessary. All such work shall be performed in a manner which
does not unreasonably interfere with Landlord or other tenants of the Building,
or impose additional expense upon Landlord in the operation of the Building
Complex (unless Tenant agrees to pay such additional cost).
12.2 Tenant shall keep the Premises in as good order, condition, and
repair and in an orderly state, as on the Commencement Date, loss by fire or
other casualty or ordinary wear excepted.
12.3 All Alterations, including partitions, paneling, carpeting, drapes
or other window coverings, and light fixtures (but not including movable office
furniture not permanently attached to the Building and Tenant's equipment and
trade fixtures), are deemed a part of the real estate and the property of
Landlord and remain upon and be surrendered with the Premises at the end of the
Term, whether by lapse of time or otherwise, unless Landlord notifies Tenant no
later than 15 days prior to the end of the Term that it elects to have Tenant
remove all or part of such Alterations, and in such event, Tenant shall at
Tenant's expense promptly remove the Alterations specified and restore the
Premises to its prior condition, reasonable wear and tear excepted. If requested
by Tenant in connection with Tenant's request for Landlord's consent to any
Alterations proposed by Tenant, Landlord shall inform Tenant whether Landlord
will require the removal of such Alterations pursuant to this Section 12.3 and,
if Landlord does not so inform Tenant, Tenant shall not be required to remove
such Alterations at the end of the Term.
13. MECHANICS' LIENS. Tenant shall pay for all work done on the Premises by
Tenant or at its request (subject to the provisions applicable to the Finish
Work) of a character which may result in liens on Landlord's or Tenant's
interest and Tenant will keep the Premises free of all mechanics' liens, and
other liens on account of such work. Tenant indemnifies, defends, and saves
Landlord harmless from all liability, loss, damage, or expenses, including
attorneys' fees, on account of any claims of laborers, materialmen or others for
work performed or for materials or supplies furnished to Tenant or persons
claiming under Tenant. If any lien is recorded against the Premises or Building
or any suit affecting title thereto is commenced as a result of such work, or
supplying of materials, Tenant shall cause such lien to be removed of record
within 5 days after notice from Landlord. If Tenant desires to contest any
claim, Tenant must furnish Landlord adequate security of at least 150% of the
amount of the claim, plus estimated costs and interest and, if a final judgment
establishing the validity of any lien is entered, Tenant shall immediately pay
and satisfy the same. If Tenant fails to proceed as aforesaid, Landlord may pay
such amount and any costs, and the amount paid, together with reasonable
attorneys' fees incurred, shall be immediately due Landlord upon notice.
14. SUBLETTING AND ASSIGNMENT.
14.1 Tenant shall not sublet any part of the Premises nor assign or
otherwise transfer this Lease or any interest herein (sometimes referred to as
"Transfer," and the subtenant
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or assignee may be referred to as "Transferee") without the consent of Landlord
first being obtained, which consent will not be unreasonably withheld provided
that: (1) Tenant complies with the provisions of Section 14.4; (2) Landlord
declines to exercise its rights under Section 14.3; (3) the Transferee is
engaged in a business and the portion of the Premises will be used in a manner
which is in keeping with the then standards of the Building and does not
conflict with any exclusive use rights granted to any other tenant of the
Building Complex; (4) the Transferee has reasonable financial worth in light of
the responsibilities involved; (5) Tenant is not in default at the time it makes
its request; (6) the Transferee is not a governmental or quasi-governmental
agency; (7) the Transferee is not a tenant or currently negotiating a lease with
Landlord in any Building owned by Landlord in or its affiliates in the Denver
metropolitan area (including the Building Complex). Transfer includes a sale by
Tenant of substantially all of its assets or stock if Tenant is a publicly
traded corporation, a merger of Tenant with another corporation (if Tenant is
not the surviving corporation), the transfer of 25% or more of the stock in a
corporate tenant whose stock is not publicly traded, or transfer of 25% or more
of the beneficial ownership interests in a partnership or limited liability
company tenant.
14.2 Following any Transfer in accordance with this Section 14,
Landlord may, after default by Tenant, collect rent from the Transferee or
occupant and apply the net amount collected to the Rent, but no Transfer or
collection will be deemed an acceptance of the Transferee or occupant as Tenant
or release Tenant from its obligations. Consent to a Transfer shall not relieve
Tenant from obtaining Landlord's consent to any other Transfer. Notwithstanding
Landlord's consent to a Transfer, Tenant shall continue to be primarily liable
for its obligations. If Tenant collects any rent or other amounts from a
Transferee in excess of the Rent for any monthly period, Tenant shall pay
Landlord the excess monthly, as and when received.
14.3 Notwithstanding the above, if Tenant requests Landlord's consent
to sublet 25% or more of the Premises, Landlord may refuse to grant such consent
in its sole discretion and terminate this Lease as to the portion of the
Premises with respect to which such consent was requested; provided, however, if
Landlord does not consent and elects to terminate the Lease as to such portion,
Tenant may within 15 days after notice from Landlord to this effect withdraw
Tenant's request for consent. If such termination occurs, it shall be effective
on the date designated in a notice from Landlord and shall not be more than 30
days following such notice and, upon such termination, Tenant shall be released
from all further obligations under this Lease with respect to the portion of the
Premises as to which the Lease is terminated (except for Rent attributable to
the period prior to such termination) and the Rent and Tenant's obligation to
pay Operating Expenses shall be reduced in proportion to the portion of the
Premises as to which this Lease is terminated.
14.4 Tenant must notify Landlord at least 30 days prior to the desired
date of the Transfer ("Tenant's Notice"). Tenant's Notice shall describe the
portion of the Premises to be transferred and the terms and conditions. Landlord
has, without obligation, 30 days following receipt of Tenant's Notice to sublet
the space on Tenant's behalf (subject to Tenant's reasonable approval of the
proposed use by the subtenant and such subtenant's financial ability to perform
its obligations under the proposed sublease) or to exercise its rights pursuant
to Section 14.3 if Tenant's Notice discloses that 25% or more of the Premises is
involved. If the space covered by Tenant's Notice is subleased by Landlord, rent
and other sums due from the subtenant will be
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paid to Tenant directly and Landlord has no responsibility for the performance
by such subtenant of its obligations under its sublease with Tenant. If Landlord
is unwilling or unable to locate a subtenant (and, if applicable, declines to
exercise its rights under Section 14.3), Landlord will notify Tenant not later
than 60 days after receipt of Tenant's Notice and Tenant shall be free to sublet
the specified portion of the Premises to any third party on terms substantially
identical to those described in Tenant's Notice, subject to Landlord's consent
as set forth above. If Tenant does not sublet such portion of the Premises
within 30 days following Landlord's notice to Tenant, Tenant must reoffer the
Premises to Landlord in accordance with the provisions hereof prior to
subleasing to a third party.
14.5 All documents utilized by Tenant to evidence a Transfer are
subject to reasonable approval by Landlord. Tenant shall pay Landlord's
reasonable expenses, including reasonable attorneys' fees, of determining
whether to consent and in reviewing and approving the documents. Tenant shall
provide Landlord with such information as Landlord reasonably requests regarding
a proposed subtenant, including financial information.
14.6 If a trustee or debtor in possession in bankruptcy is entitled to
assume control over Tenant's rights under this Lease and assigns such rights to
any third party notwithstanding the provisions hereof, the rent to be paid by
such party shall be increased to the current Base Rent (if greater than that
being paid for the Premises) which Landlord charges for comparable space in the
Building as of the date of such third party's occupancy. If Landlord is entitled
under the Bankruptcy Code to "Adequate Assurance" of future performance of this
Lease, the parties agree that such term includes the following:
(1) Any assignee must demonstrate to Landlord's reasonable satisfaction
a net worth (as defined in accordance with generally accepted accounting
principles consistently applied) at least as large as the net worth of Tenant on
the Commencement Date increased by 7%, compounded annually, for each year
thereafter through the date of the proposed assignment. Tenant's financial
condition was a material inducement to Landlord in executing this Lease.
(2) The assignee must assume and agree to be bound by the provisions of
this Lease.
15. DAMAGE TO PROPERTY. Tenant agrees Landlord is not liable for any injury
or damage, either proximate or remote, occurring through or caused by fire,
water, steam, or any repairs, alterations, injury, accident, or any other cause
to the Premises, to any furniture, fixtures, Tenant improvements, or other
personal property of Tenant kept or stored in the Premises, or in other parts of
the Building Complex, whether by reason of the negligence or default of
Landlord, other occupants, any other person, or otherwise; and the keeping or
storing of all property of Tenant in the Premises and Building Complex is at the
sole risk of Tenant. Tenant's liability for any injury or damage to the Building
or personal property of Landlord kept or stored in the Building Complex shall be
limited in accordance with Section 18.6.
16. INDEMNITY TO LANDLORD.
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16.1 Tenant agrees to indemnify, defend, and hold Landlord and Building
Manager harmless from all liability, costs, or expenses, including attorneys'
fees, on account of damage to the person or property of any third party,
including any other tenant in the Building Complex, to the extent caused by the
negligence or breach of this Lease by the Tenant or Tenant's Agents.
16.2 Tenant shall maintain throughout the Term a commercial general
liability policy, including protection against death, personal injury and
property damage, issued by an insurance company qualified to do business in the
State of Colorado, with a single limit of not less than $1,000,000.00 Such
policy shall name Landlord, Building Manager, and Mortgagee as additional
insureds, be primary to any other similar insurance of such additional insureds,
and provide that it may not be cancelled or modified without at least 20 days'
prior notice to Landlord and Mortgagee. The minimum limits of such insurance do
not limit the liability of Tenant hereunder. Prior to occupancy of the Premises,
and prior to expiration of the then-current policy, Tenant shall deliver
certificates evidencing that insurance required under this Lease is in effect.
16.3 Landlord agrees to indemnify, defend, and hold Tenant harmless
from all liability, costs, or expenses, including attorneys' fees, on account
of damage to the person or property of any third party (excluding Tenant's
Agents), including any other tenant in the Building Complex, to the extent
caused by the negligence or breach of this Lease by Landlord or Building
Manager.
17. SURRENDER AND NOTICE. Upon the expiration or other termination of
this Lease, Tenant shall immediately quit and surrender to Landlord the
Premises broom clean, in good order and condition, ordinary wear and tear and
loss by fire or other casualty excepted, and Tenant shall remove all of its
movable furniture and other effects, all telephone cable and related equipment
in the Building installed for Tenant, and such Alterations, as Landlord
requires. If Tenant fails to timely vacate the Premises as required, Tenant is
responsible to Landlord for all resulting costs and damages of Landlord,
including any amounts paid to third parties who are delayed in occupying the
Premises.
18. INSURANCE, CASUALTY, AND RESTORATION OF PREMISES. 18.1 Landlord
shall maintain property insurance for the Building Complex, the shell and core
of the Building and the Premises in such amounts, from such companies, and on
such terms and conditions, including insurance for loss of Rent as Landlord
deems appropriate, from time to time, consistent with amounts and coverages
retained by reasonably prudent landlords in office buildings of similar size
and quality in the southeast suburban Denver metropolitan area. Landlord
acknowledges that as of the Commencement Date Landlord is retaining all risk
property insurance in amounts not less than 90% of the replacement cost value,
which coverage is subject to change in the future.
18.2 Tenant shall maintain throughout the Term insurance coverage at
least as broad as ISO Special Form Coverage against risks of direct physical
loss or damage (commonly known as "all risk") for the full replacement cost of
Tenant's property and betterments in the Premises, including tenant finish in
excess of the Finish Work.
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18.3 If the Building is damaged by fire or other casualty which renders
the Premises wholly unusable for Tenant's normal office operations or the damage
is so extensive that an architect selected by Landlord certifies in writing to
Landlord and Tenant within 60 days of said casualty that the Premises cannot,
with the exercise of reasonable diligence, be made fit for Tenant's normal
office operations within 180 working days from the happening thereof, then, at
the option of Landlord or Tenant exercised in writing to the other within 30
days of such determination, this Lease shall terminate as of the occurrence of
such damage. In the event of termination, Tenant shall pay Rent duly apportioned
up to the time of such casualty and forthwith surrender the Premises and all
interest. If Tenant fails to do so, Landlord may reenter and take possession of
the Premises and remove Tenant. If, however, the damage is such that the
architect certifies that the Premises can be made usable for Tenant's normal
office operations within such 180-day period or neither Landlord or Tenant
elects to terminate the Lease despite the extent of damage, then the provisions
below apply.
18.4 If the Premises are damaged by fire or other casualty that does
not render it wholly unusable for Tenant's normal office operations or require a
repair period in excess of 180 days, Landlord shall with reasonable promptness
except as hereafter provided repair the Premises to the extent of the Finish
Work.
18.5 If the Building is damaged (though the Premises may not be
affected, or if affected, can be repaired within 180 days) and within 60 days
after the damage Landlord decides not to reconstruct or rebuild the Building,
then, notwithstanding anything contained herein, upon notice to that effect from
Landlord within said 60 days, Tenant shall pay the Rent apportioned to such
date, this Lease shall terminate from the date of such notice, and both parties
discharged from further obligations except as otherwise expressly provided.
18.6 Landlord and Tenant waive all rights of recovery against the other
and its respective officers, partners, members, agents, representatives, and
employees for loss or damage to its real and personal property kept in the
Building Complex which is capable of being insured against under ISO Special
Form Coverage, or for loss of business revenue or extra expense arising out of
or related to the use and occupancy of the Premises. Tenant also waives all such
rights of recovery against Building Manager. Each party shall, upon obtaining
the property damage insurance required by this Lease, notify the insurance
carrier that the foregoing waiver is contained in this Lease and use reasonable
efforts to obtain an appropriate waiver of subrogation provision in the
policies.
18.7 Rent shall xxxxx during any period of repair and restoration in
the same proportion that the part of the Premises rendered unusable for Tenant's
normal office operations bears to the whole; provided, however, if the casualty
is the fault of Tenant or Tenant's Agents, then the Rent will xxxxx during any
such period of repair and restoration but only to the extent of any recovery by
Landlord under its rental insurance related to the Premises.
19. CONDEMNATION. If the Premises or any material portion that renders the
Premises unusable for Tenant's normal office operations or any portion of the
Building Complex which renders the Premises unusable for Tenant's normal office
operations is taken by right of eminent domain, or by condemnation (which
includes a conveyance in lieu of a taking), this Lease, at the option of either
Landlord or Tenant exercised by notice to the other within 30 days
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after the taking, shall terminate and Rent shall be apportioned as of the date
of the taking. Tenant shall forthwith surrender the Premises and all interest in
this Lease, and, if Tenant fails to do so, Landlord may reenter and take
possession of the Premises. If this Lease is not terminated in accordance with
this Section, Landlord shall promptly repair the Premises as nearly as possible
to its condition immediately prior to the taking, unless Landlord elects not to
rebuild under Section 18.5, and the Rent shall xxxxx during the period of repair
in the same proportion that the part of the Premises taken or rendered unusable
for Tenant's normal office operations bears to the whole. Landlord shall receive
the entire award or consideration for the taking, except Tenant may claim and
prove in any such proceeding and receive any award, or seek a separate award,
made to Tenant specifically for damages for trade fixtures, equipment and moving
or relocation expenses so long as such award does not reduce Landlord's award.
20. DEFAULT BY TENANT.
20.1 Each of the following events is an "Event of Default":
(1) Any failure by Tenant to pay Rent on the due date unless such
failure is cured within 5 business days after notice by Landlord; however,
Tenant is not entitled to more than 2 notices of delinquent payments during any
calendar year and, if thereafter during such calendar year any Rent is not paid
when due, an Event of Default shall automatically occur;
(2) Tenant abandons the Premises;
(3) This Lease or Tenant's interest is transferred whether voluntarily
or by operation of law except as permitted in Section 14;
(4) This Lease or any part of the Premises is taken by process of law
and is not released within 15 days after a levy;
(5) Commencement by Tenant of a proceeding under any provision of
federal or state law relating to insolvency, bankruptcy, or reorganization
("Bankruptcy Proceeding");
(6) Commencement of a Bankruptcy Proceeding against Tenant, unless
dismissed within 60 days after commencement;
(7) The insolvency of Tenant or execution by Tenant of an assignment
for the benefit of creditors; the convening by Tenant of a meeting of its
creditors or any significant class thereof for purposes of effecting a
moratorium upon or extension or composition of its debts; or the failure of
Tenant generally to pay its debts as they mature;
(8) The admission in writing by Tenant (or any general partner of
Tenant if Tenant is a partnership), that it is unable to pay its debts as they
mature or it is generally not paying its debts as they mature;
(9) Tenant fails to take possession of the Premises within 15 days
after the Commencement Date;
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(10) Tenant fails to perform any of its other obligations and
non-performance continues for 30 days after notice by Landlord or, if such
performance cannot be reasonably had within such 30 day period, Tenant does not
in good faith commence performance within such 30 day period and diligently
proceed to completion; provided, however, Tenant's right to cure shall not
exceed the period provided by Applicable Law;
(11) An event of default (not cured within any applicable cure period)
under the terms of the Solarium Lease shall be deemed an Event of Default
hereunder; and
(12) Any event which is expressly defined as or deemed an Event of
Default under this Lease.
20.2 Remedies of Landlord. If an Event of Default occurs, Landlord may then
or at any time thereafter, either:
(1) (a) Without further notice except as required by Applicable Laws,
reenter and repossess the Premises or any part and expel Tenant and those
claiming through or under Tenant and remove the effects of both without being
deemed guilty of any manner of trespass and without prejudice to any remedies
for arrears of Rent or preceding breach of this Lease. Should Landlord reenter
or take possession pursuant to legal proceedings or any notice provided for by
Applicable Law, Landlord may, from time to time, without terminating this Lease,
relet the Premises or any part, either alone or in conjunction with other
portions of the Building Complex, in Landlord's or Tenant's name but for the
account of Tenant, for such periods (which may be greater or less than the
period which would otherwise have constituted the balance of the Term) and on
such conditions and upon such other terms (which may include concessions of free
rent and alteration and repair of the Premises) as Landlord, in its sole
discretion, determines and Landlord may collect the rents therefor but Landlord
is not in any way responsible or liable for failure to relet the Premises, or
any part thereof, or for any failure to collect any rent due upon such
reletting; however, Landlord shall use reasonable efforts to mitigate its
damages. No such reentry or repossession or notice from Landlord shall be
construed as an election by Landlord to terminate this Lease unless specific
notice of such intention is given Tenant. Landlord reserves the right following
any reentry and/or reletting to exercise its right to terminate this Lease by
giving Tenant notice, in which event this Lease will terminate as specified in
the notice.
(b) If Landlord takes possession of the Premises without
terminating this Lease, Tenant shall pay Landlord (i) the Rent which would be
payable if repossession had not occurred, less (ii) the net proceeds, if any, of
any reletting of the Premises after deducting all of Landlord's reasonable
expenses incurred in connection with such reletting, including all repossession
costs, brokerage commissions, attorneys' fees, expenses of employees,
alteration, and repair costs (collectively "Reletting Expenses"), however,
Landlord shall use reasonable efforts to mitigate its damages. If, in connection
with any reletting, the new lease term extends beyond the Term or the premises
covered thereby include other premises not part of the Premises, a fair
apportionment of the rent received from such reletting and the Reletting
Expenses, will be made in determining the net proceeds received from the
reletting. In determining such net proceeds, rent concessions will also be
apportioned over the term of the new lease. Tenant shall pay such amounts to
Landlord monthly on the days on which the Rent
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would have been payable if possession had not been retaken, and Landlord is
entitled to receive the same from Tenant on each such day; or
(2) Give Tenant notice of termination of this Lease on the date
specified and, on such date, Tenant's right to possession of the Premises shall
cease and the Lease will terminate except as to Tenant's liability as hereafter
provided as if the expiration of the term fixed in such notice were the end of
the Term. If this Lease terminates pursuant to this Section, Tenant remains
liable to Landlord for damages in an amount equal to the Rent which would have
been owing by Tenant for the balance of the Term had this Lease not terminated,
less the net proceeds, if any, of reletting of the Premises by Landlord
subsequent to termination after deducting Reletting Expenses, however, Landlord
shall use reasonable efforts to mitigate its damages. Landlord may collect such
damages from Tenant monthly on the days on which the Rent would have been
payable if this Lease had not terminated and Landlord shall be entitled to
receive the same from Tenant on each such day. Alternatively, if this Lease is
terminated, Landlord at its option may recover forthwith against Tenant as
damages for loss of the bargain and not as a penalty an amount equal to the
worth at the time of termination of the excess, if any, of the Rent reserved in
this Lease for the balance of the Term over the then Reasonable Rental Value of
the Premises for the same period plus all Reletting Expenses. "Reasonable Rental
Value" is the amount of rent Landlord can obtain for the remaining balance of
the Term.
20.3 Cumulative Remedies. Suits to recover Rent and damages may be
brought by Landlord, from time to time, and nothing herein requires Landlord to
await the date the Term would expire had there been no Event of Default or
termination, as the case may be. Each right and remedy provided for in this
Lease is cumulative and non-exclusive and in addition to every other right or
remedy now or hereafter existing at law or equity, including suits for
injunctive relief and specific performance. The exercise or beginning of the
exercise by Landlord of one or more rights or remedies shall not preclude the
simultaneous or later exercise by Landlord of other rights or remedies. All
costs incurred by Landlord to collect any rent and damages or to enforce this
Lease are also recoverable form Tenant. If any suit is brought because of an
alleged breach of this Lease, the prevailing party is also entitled to recover
from the other party all reasonable attorneys' fees and costs incurred in
connection therewith.
20.4 No Waiver. No failure by Landlord to insist upon strict
performance of any provision or to exercise any right or remedy upon a breach
thereof, and no acceptance of full or partial Rent during the continuance of any
breach constitutes a waiver of any such breach or such provision, except by
written instrument executed by Landlord. No waiver shall affect or alter this
Lease but each provision hereof continues in effect with respect to any other
then existing or subsequent breach thereof.
20.5 Bankruptcy. Nothing contained in this Lease limits Landlord's
right to obtain as liquidated damages in any bankruptcy or similar proceeding
the maximum amount allowed by law at the time such damages are to be proven,
whether such amount is greater, equal to, or less than the amounts recoverable,
either as damages or Rent, referred to in any of the preceding provisions of
this Section. Notwithstanding anything in this Section to the contrary, any
proceeding described in Section 20.1(5),(6),(7) and (8) is an Event of Default
only when such proceeding is brought by or against the then holder of the
leasehold estate under this Lease.
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20.6 Late Payment Charge. Any Rent not paid within 5 days after the due
date shall thereafter bear interest at 5 percentage points above the Prime Rate
or the highest rate permitted by law, whichever is lower, until paid. Further,
if such Rent is not paid within 5 days after notice, Tenant agrees Landlord will
incur additional administrative expenses, the amount of which will be difficult
to determine; Tenant therefore shall also pay Landlord a late charge for each
late payment of 5% of such payment. Any amounts paid by Landlord to cure a
default of Tenant which Landlord has the right but not the obligation to do,
shall, if not repaid by Tenant within 5 days of demand by Landlord, thereafter
bear interest at 5 percentage points above the Prime Rate until paid. "Prime
Rate" means that rate announced by Xxxxx Fargo Bank, N.A. in Denver as its prime
rate on the date closest to the date interest commences.
20.7 Waiver of Jury Trial. Tenant and Landlord waive any right to a
trial by jury in suits arising out of or concerning the provisions of this
Lease.
21. DEFAULT BY LANDLORD. In the event of any alleged default on the part of
Landlord, Tenant shall give notice to Landlord and afford Landlord a reasonable
opportunity to cure such default. Such notice shall be ineffective unless a copy
is simultaneously also delivered in the manner required in this Lease to any
holder of a mortgage and/or deed of trust affecting all or any portion of the
Building Complex (collectively, "Mortgagee"), provided that prior to such notice
Tenant has been notified (by way of notice of Assignment of Rents and Leases, or
otherwise), of the address of a Mortgagee. If Landlord fails to cure such
default within the time provided, then Mortgagee shall have an additional 30
days following a second notice from Tenant or, if such default cannot be cured
within that time, such additional time as may be necessary provided within such
30 days, Mortgagee commences and diligently pursues a cure (including
commencement of foreclosure proceedings if necessary to effect such cure).
Tenant's sole remedy will be equitable relief or actual damages but in no event
is Landlord or any Mortgagee responsible for consequential damages or lost
profit incurred by Tenant as a result of any default by Landlord. If a
Mortgagee, or transferee under such Mortgage (hereafter defined), succeeds to
Landlord's interest as a result of foreclosure or otherwise, such party shall
not be: (i) liable for any default, nor subject to any setoff or defenses that
Tenant may have against Landlord, for a default occurring prior to such transfer
or succession; (ii) bound by any amendment (including an agreement for early
termination) without its consent made at any time after notice to Tenant that
such Mortgage requires such consent; and (ii) bound by payment of Rent in
advance for more than 30 days. Tenant agrees to pay Rent (and will receive
credit under this Lease) as directed in any Mortgagee's notice of Landlord's
default under the Mortgage reciting that Mortgagee is entitled to collect Rent.
22. SUBORDINATION AND ATTORNMENT.
22.1 This Lease at Landlord's option will be subordinate to any
mortgage, deed of trust and related documents now or hereafter placed upon the
Building Complex (including all advances made thereunder), and to all
amendments, renewals, replacements, or restatements thereof (collectively,
"Mortgage"), provided, however, that the subordination by Tenant to any such
future mortgage, deed of trust or related documents shall be subject to Tenant
obtaining a non-disturbance agreement, on such lender's standard form agreement,
whereby such lender agrees, provided Tenant is not then in default under this
Lease, that Tenant's occupancy of the Premises and rights and privileges under
this Lease shall not be disturbed or impaired with in
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connection with any proceeding to enforce or foreclose any such mortgage, trust
indenture or other lien and if such party succeeds to the interests of Landlord
by reason of such proceedings or conveyance in lieu thereof, Tenant shall attorn
hereunder directly to such party; provided, however, such party shall not be (i)
liable for any act or omission of any prior landlord or (ii) subject to any
offsets or defenses which Tenant might have against any prior landlord
(including Landlord); or (iii) bound by any rental which Tenant might have paid
for more than one (1) month in advance to any prior landlord; or (iv) bound by
any amendment or modification of the Lease made without its consent. Landlord
shall deliver to Tenant, within 10 days after the date this Lease is executed by
both Landlord and Tenant, a nondisturbance agreement from the holder of any
Mortgage existing as of the execution hereof.
22.2 If any Mortgagee elects to have this Lease superior to the lien of
its Mortgage and gives notice to Tenant, this Lease will be deemed prior to such
Mortgage whether this Lease is dated prior or subsequent to the date of such
Mortgage of the date or recording thereof.
22.3 In confirmation of subordination or superior position, as the case
may be, Tenant will execute such documents as may be required by Mortgagee
(consistent with the provisions of Section 22.1 above) and if it fails to do so
within 10 days after demand, such failure shall be deemed an Event of Default
hereunder.
22.4 Tenant hereby attorns to all successor owners of the Building,
whether such ownership is acquired by sale, foreclosure of a Mortgage, or
otherwise.
23. REMOVAL OF TENANT'S PROPERTY.
23.1 All movable personal property of Tenant not removed from the
Premises upon vacation, abandonment, or termination of this Lease shall be
conclusively deemed abandoned and may be sold, or otherwise disposed of by
Landlord without notice to Tenant and without obligation to account; Tenant
shall pay Landlord's expenses in connection with such disposition, less any
proceeds received from disposition of such personal property, if any.
24. HOLDING OVER: TENANCY MONTH-TO-MONTH. If, after the expiration or
termination of this Lease, Tenant remains in possession of the Premises and
continues to pay rent without a written agreement as to such holding over, even
though Landlord accepts such rent, such possession is a tenancy from
month-to-month, subject to all provisions hereof but at a monthly rent
equivalent to 150% of the monthly Rent paid by Tenant immediately prior to such
expiration or termination. Rent shall continue to be payable in advance on the
first day of each calendar month. Such tenancy may be terminated by either party
upon 10 days' notice prior to the end of any monthly period. Nothing contained
herein obligates Landlord to accept rent tendered after the expiration of the
Term or relieves Tenant of its liability under Section 17.
25. PAYMENTS AFTER TERMINATION. No payments by Tenant after expiration or
termination of this Lease or after any notice (other than a demand for payment
of money) by Landlord to Tenant reinstates, continues, extends the Term, or
affects any notice given to Tenant prior to such payments. After notice,
commencement of a suit, or final judgment granting
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Landlord possession of the Premises, Landlord may collect any amounts due or
otherwise exercise Landlord's remedies without waiving any notice or affecting
any suit or judgment.
26. STATEMENT OF PERFORMANCE. Tenant and Landlord each agree at any time
upon not less than 10 days' notice to execute and deliver to the other party a
written statement certifying that this Lease is unmodified and in full force and
effect (or, if there have been modifications, that the same is in full force and
effect as modified stating the modifications); that there have been no defaults
by Landlord or Tenant (or, if there have been defaults, setting forth the nature
thereof); the date to which Rent has been paid in advance and such other
information as the requesting party reasonably requests. Such statement may be
relied upon by a prospective purchaser of Landlord's interest or Mortgagee.
Either party's failure to timely deliver such statement is conclusive upon such
party that: (i) this Lease is in full force and effect without modification
except as may be represented by the requesting party; (ii) there are no uncured
defaults in the other party's performance; and (iii) not more than 1 month's
Rent has been paid in advance. Upon request, Tenant and Landlord will furnish to
the other party an appropriate resolution confirming that the party signing the
statement is authorized to do so.
27. MISCELLANEOUS.
27.1 Transfer by Landlord. The term "Landlord" means so far as
obligations of Landlord are concerned, only the owner of the Building at the
time in question and, if any transfer of the title occurs, Landlord herein named
(and in the case of any subsequent transfers, the then grantor) is automatically
released from and after the date of such transfer of all liability as respects
performance of any obligations of Landlord thereafter to be performed provided
that such successor assumes the obligations of Landlord to be performed
thereafter during such party's ownership. Any funds in Landlord's possession at
the time of transfer in which Tenant has an interest as well as the Deposit (or
the portion not utilized in accordance with this Lease) and the Letter of Credit
(to the extent not presented in accordance with this Lease) will be turned over
to the grantee and any amount then due Tenant under this Lease will be paid to
Tenant.
27.2 No Merger. The termination or mutual cancellation of this Lease
will not work a merger, and such termination or cancellation will at the option
of Landlord either terminate all subleases or operate as an automatic assignment
to Landlord of such subleases.
27.3 Common Area Use. Landlord may use any of the Common Areas for the
purposes of completing or making repairs or alterations in any portion of the
Building Complex provided that such repairs or alterations shall not
unreasonably interfere with Tenant's normal business office operations and
reasonable access is permitted to the Premises and parking (subject to the
provisions of Section 29).
27.4 Independent Covenants. This Lease is to be construed as though the
covenants between Landlord and Tenant are independent and not dependent and
Tenant is not entitled to any setoff of the Rent against Landlord if Landlord
fails to perform its obligations; provided, however, the foregoing does not
impair Tenant's right to commence a separate suit against Landlord for any
default by Landlord so long as Tenant complies with Section 21.
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27.5 Validity of Provisions. If any provision is invalid under present
or future laws, then it is agreed that the remainder of this Lease is not
affected and that in lieu of each provision that is invalid, there will be added
as part of this Lease a provision as similar to such invalid provision as may be
possible and is valid and enforceable.
27.6 Captions. The caption of each Section is added for convenience
only and has no effect in the construction of any provision of this Lease.
27.7 Construction. The parties waive any rule of construction that
ambiguities are to be resolved against the drafting party. Any words following
the words "include," "including," "such as," "for example," or similar words or
phrases shall be illustrative only and are not intended to be exclusive, whether
or not language of non-limitation is used.
27.8 Applicability. Except as otherwise provided, the provisions of
this Lease are applicable to and binding upon Landlord's and Tenant's respective
heirs, successors and assigns. Such provisions are also considered to be
covenants running with the land to the fullest extent permitted by law.
27.9 Authority. Tenant and the party executing this Lease on behalf of
Tenant represent to Landlord that such party is authorized to do so by requisite
action of Tenant and agree, upon request, to deliver Landlord a resolution or
similar document to that effect. Landlord and the party executing this Lease on
behalf of Landlord represent to Tenant that such party is authorized to do so by
requisite action of Landlord and agree, upon request, to deliver Tenant a
resolution or similar document to that effect.
27.10 Severability. If there is more than one party which is the
Tenant, the obligations imposed upon Tenant are joint and several.
27.11 Acceptance of Keys, Rent or Surrender. No act of Landlord or its
representatives during the Term, including any agreement to accept a surrender
of the Premises or amend this Lease, is binding on Landlord unless such act is
by a partner, member or officer of Landlord, as the case may be, or other party
designated in writing by Landlord as authorized to act. The delivery of keys to
Landlord or its representatives will not operate as a termination of this Lease
or a surrender of the Premises. No payment by Tenant of a lesser amount than the
entire Rent owing is other than on account of such Rent nor is any endorsement
or statement on any check or letter accompanying payment an accord and
satisfaction. Landlord may accept payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy available to Landlord.
27.12 Building Name and Size. Landlord may as it relates to the
Building and Building Complex: change the name, increase the size by adding
additional real property, construct other buildings or improvements, change the
location and/or character, or make alterations or additions provided that such
changes shall not unreasonably interfere with Tenant's normal business office
operations and reasonable access is permitted to the Premises and parking
(subject to the provisions of Section 29). If additional buildings are
constructed or the size is increased, Landlord and Tenant shall execute an
amendment which incorporates any necessary
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modifications to Tenant's Pro Rata Share. Tenant may not use the Building's name
for any purpose other than as part of its business address.
27.13 Diminution of View. Tenant agrees that no diminution of light,
air, or view from the Building entitles Tenant to any reduction of Rent under
this Lease, results in any liability of Landlord, or in any way affects Tenant's
obligations.
27.14 Limitation of Liability. Notwithstanding anything to the contrary
contained in this Lease, Landlord's liability is limited to Landlord's interest
in the Building.
27.15 Non-Reliance. Tenant confirms it has not relied on any
statements, representations, or warranties by Landlord or its representatives
except as set forth herein.
27.16 Written Modification. No amendment or modification of this Lease
is valid or binding unless in writing and executed by the parties.
27.17 Lender's Requirements. Tenant will make such modifications to
this Lease as may hereafter be reasonably required to conform to any lender's
requirements, so long as such modifications do not increase Tenant's obligations
or materially alter its rights.
27.18 Effectiveness. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option to lease and
it is not effective unless and until execution and delivery by both Landlord and
Tenant.
27.19 Survival. This Lease, notwithstanding expiration or termination,
continues in effect as to any provisions requiring observance or performance
subsequent to termination or expiration.
27.20 Time of Essence. Time is of the essence herein.
27.21 Rules and Regulations. If rules and regulations are attached
hereto, they are a part of this Lease and Tenant agrees that Tenant and Tenant's
Agents shall at all times abide by such rules and regulations.
27.22 Recording. Tenant will not record this Lease. Recording of the
Lease by or on behalf of Tenant is an Event of Default.
28. AUTHORITIES FOR ACTION AND NOTICE.
28.1 Unless otherwise provided, Landlord may act through Landlord's
Building Manager or other designated representatives from time to time.
28.2 All notices or other communications required or desired to be
given to Landlord must be in writing and shall be deemed received when delivered
personally to any officer, partner, or member of Landlord (depending upon the
nature of Landlord) or the manager of the Building (the "Building Manager")
whose office is in the Building, or when deposited in the United States mail,
postage prepaid, certified or registered, return receipt requested, addressed as
set forth in Section 1.11. All notices or communications required or desired to
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be given to Tenant shall be in writing and deemed duly served when delivered
personally to any officer, employee, partner, or member of Tenant (depending
upon the nature of Tenant), individually if a sole proprietorship, or manager of
Tenant whose office is in the Building, or when deposited in the United States
mail, postage prepaid, certified or registered, return receipt requested,
addressed to the appropriate address set forth in Section 1.12. Either party may
designate in writing served as above provided a different address to which
notice is to be mailed. The foregoing does not prohibit notice from being given
as provided in Rule 4 of Colorado Rules of Civil Procedure, as amended from time
to time.
29. PARKING. Landlord will make available the number of parking spaces set
forth in Section 1.9, in surface parking areas or covered parking areas,
respectively. All parking spaces shall be in and out, non-assigned parking
spaces in the designated areas for the respective spaces and Tenant shall pay
for all such spaces at the rates as provided below ("Parking Rate"). Tenant will
be billed monthly for all spaces. Notwithstanding the above, the right granted
to Tenant to use such spaces is a license only and Landlord's inability to make
such spaces available at any time for reasons beyond Landlord's reasonable
control is not a material breach by Landlord of its obligations hereunder and
Tenant has no rights to use the covered parking spaces except as provided in
this Section. The abatement of Tenant's obligation to pay for unavailable spaces
during any period of unavailability constitutes Tenant's sole remedy. If Tenant
fails to timely pay a parking xxxx within 5 business days after notice from
Landlord, Landlord shall have its right to exercise remedies for an Event of
Default under Section 20. All vehicles parked in the parking areas and the
personal property therein shall be at the sole risk of Tenant, Tenant's Agents
and the users of such spaces and Landlord shall have no liability for loss or
damage thereto for whatever cause. The monthly Parking Rate for the surface
spaces during the Initial Term is $0 (there being no obligation to pay any fee
for the use of such spaces) and the monthly Parking Rate for each covered
parking space during the Initial Term shall be as follows: $40 during Months 1
through 12; $50 during Months 13 through 24; and $60 during Months 25 through
60.
30. SUBSTITUTE PREMISES. [Section 30 intentionally deleted.]
31. BROKERAGE. Tenant represents it has not employed any broker with
respect to this Lease and has no knowledge of any broker's involvement in this
transaction except those listed in Sections 1.14 and 1.15 (collectively, the
"Brokers"). Tenant and Landlord shall each indemnify the other against any
expense incurred by other as a result of any claim for commissions or fees by
any other broker, finder, or agent, whether or not meritorious, employed by the
other or claiming by, through, or under the other, other than the Brokers.
Tenant acknowledges Landlord is not liable for any representations by the
Brokers regarding the Premises, Building, Building Complex, or this Lease.
32. COUNTERPARTS. This Lease may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Any one or more counterpart signature
pages may be removed from one counterpart of the Lease and annexed to
counterpart of the Lease to form a completely another executed original
instrument without impairing the legal effect of the signature thereon.
33. ADDENDUM. See the Addendum attached hereto and incorporated herein.
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IN WITNESS WHEREOF, the parties have executed this Lease as of the day and
year first above written and it is effective upon delivery of a fully-executed
copy to Tenant.
VERIO INC., a Delaware corporation HIGHLAND PARK VENTURERS, LLC,
a Colorado limited liability company
By: /s/ Xxx Xxxxx By: /s/ illegible
------------------------------------ ---------------------------------
Print Name: Xxx Xxxxx Authorized Signatory
----------------------------
Print Title: Vice President
---------------------------
Finance and Administration
---------------------------
"Landlord"
ATTEST:
By:
----------------------------------
Print Name:
--------------------------
Print Title:
-------------------------
"Tenant"
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ADDENDUM
THIS ADDENDUM is to that certain lease agreement (the "Lease") by and
between HIGHLAND PARK VENTURERS, LLC, a Colorado limited liability company
("Landlord"), and VERIO INC., a Delaware corporation ("Tenant"), with respect to
approximately 33,300 rentable square feet of space (the "Premises") in the
building known as Waterview One. In the event of any conflict between the terms
and provisions of the Lease and the terms and provisions of this Addendum, the
terms and provisions of this Addendum shall control.
1. The Rentable Area, the Base Rent, Tenant's Pro Rata Share, the Allowance
(as referred to in the Work Letter) and the Parking Spaces are subject to
adjustment in accordance with the following provisions:
A. Landlord and Tenant agree that, upon completion of Landlord's
Drawings and the Final Drawings for the Premises, Landlord shall have Landlord's
Architect (as defined in the Work Letter) remeasure the Building and the
Premises to determine and certify to Landlord and Tenant the Rentable Area and
the rentable square footage of the Premises (in accordance with The Standard for
Measuring Floor Area of the Building Owners and Managers Association, ANSI/BOMA
Z65.1-1996) and, if such measurement differs from the square footages set forth
herein, the Rentable Area, the Base Rent, Tenant's Pro Rata Share, the Allowance
(as referred to in the Work Letter) and the Parking Spaces shall be revised to
reflect such calculation and such revised numbers shall be set forth in an
amendment to this Lease. The total number of parking spaces reflected in Section
1.9 being based on a ratio of 4.8 spaces per 1,000 rentable square feet with the
number of covered parking spaces is based on a ratio of 1 space per 5,425
rentable square feet and the remainder of parking spaces being uncovered surface
parking spaces; the foregoing ratios shall be used for recalculating the number
of parking spaces in the event of such remeasurement.
B. At the time the commencement agreement in the form attached as
EXHIBIT D is executed, such remeasurements and changes shall be included in the
commencement agreement.
2. Landlord grants Tenant a one-time right of first offer (the "Right of
First Offer") to lease approximately 5,600 rentable square feet of space located
on the first floor of the Building (the "Right of First Offer Space") as
depicted on EXHIBIT A-2 attached hereto on the following basis:
A. Tenant has 3 business days after being notified by Landlord of
Landlord's desire to deliver a proposal to a third party to lease all or any
portion of the Right of First Offer Space ("Landlord's Notice") within which to
notify Landlord of its election to exercise its Right of First Offer as to such
space. Landlord will determine the exact square footage of the Right of First
Offer Space in accordance with subparagraph E below at the time such space or
any portion thereof is offered to Tenant. Tenant must take all of the Right of
First Offer Space offered by Landlord (the "Offered Space") and may not elect to
lease only a portion thereof.
B. If Tenant does not timely notify Landlord, it will be conclusively
presumed that Tenant has waived its Right of First Offer as to the space set
forth in Landlord's
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Notice, Landlord shall be free to lease the Right of First Offer Space to anyone
whom it desires and Tenant will have no further rights to the Right of First
Offer Space; provided, however, that if Landlord does not enter into a binding
agreement to lease such space within 3 months following Landlord's Notice,
Tenant shall again have a Right of First Offer as to such space under this
provision.
C. During any period prior to the Commencement Date, Right of First
Offer Space will be offered to Tenant for a term coterminous with the Term and
upon all terms and provisions of the Lease. For periods on or after the
Commencement Date, Right of First Offer Space will be offered to Tenant for a
term coterminous with the Term on the terms that Landlord intends to include in
Landlord's proposal (as referred to in Paragraph A above) provided that any
allowances or monetary concessions may be prorated to the extent that the term
being proposed to such third party would be longer than a term coterminous with
the Term, but in no event shall the rental rate be less than the rental rate
that Tenant is paying for the Premises. Such provisions will include, among
other things, escalations and pass-throughs. Upon exercise of the Right of First
Offer, the Offered Space will be deemed added to the Premises and Tenant will
accept such space as may be provided in Landlord's Notice, subject to the
provisions set forth therein regarding any tenant finish allowance or completion
of tenant finish work. After exercise of the Right of First Offer, the parties
will execute an amendment to the Lease evidencing the addition of such space.
D. Tenant's right to exercise the Right of First Offer is conditioned
on: (i) Tenant not being in default under the Lease at the time it exercises the
Right of First Offer or on the date that Tenant's occupancy of the Offered Space
is scheduled to commence; (ii) Tenant not having vacated or subleased more than
25% of the Premises or assigned its interest in the Lease at the time it
exercises the Right of First Offer or on the date that Tenant's occupancy of the
Offered Space is scheduled to commence; and (iii) there being at least one year
remaining in the Term. This Right of First Offer is personal to Tenant and may
not be assigned. Upon an assignment of the Lease, this Paragraph is null and
void.
E. If Landlord has entered into lease negotiations with a third party
for space which is greater than but includes the Right of First Offer Space,
then to exercise the Right of First Offer, Tenant will be obligated to take all
space the third party would lease under such negotiations.
F. All notifications contemplated by this Paragraph, whether from Tenant
to Landlord, or from Landlord to Tenant, must be in writing and given in the
manner provided in this Lease.
G. Notwithstanding anything to the contrary set forth above, Landlord
has the right, at any time prior to offering the Right of First Offer Space to
Tenant, to substitute up to approximately 5,600 rentable square feet of space on
the 3rd floor of the Building in place of a like amount of the Right of First
Offer Space, so long as the total of the substituted space and the first floor
Right of First Offer Space being offered totals approximately 5,600 rentable
square feet. Upon receipt of notice from Landlord of such substitution
identifying the substituted space and the remaining unsubstituted Right of First
Offer Space on the first floor, such substituted space and the remaining
unsubstituted Right of First Offer Space on the first floor shall be
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deemed the Right of First Offer Space under this Section (and the space for
which substitution has been made shall no longer be subject to Tenant's rights
under this Section).
3. In accordance with the Work Letter, as part of the Finish Work, Tenant
shall have the right to have signage as depicted on the attached EXHIBIT F
installed on a monument to be constructed by Landlord at Tenant's cost, subject
to approval by Landlord of the details for such monument and signage. Further,
the monument and Tenant's signage on the monument are subject to approval by
Arapahoe County and under the declaration of protective covenants applicable to
the Real Property. The monument is intended also for general building signage
and shall not be exclusively for Tenant's signage. The costs for the design,
fabrication and installation of such monument and Tenant's signage shall be
borne by Tenant (subject to the allowance provisions of the Work Letter);
provided, however, if Landlord elects to include any other tenants' names on
such monument sign, the costs of such monument sign shall be prorated between
Tenant and such other tenants and Tenant shall have a right to receive payment
for the costs prorated to such other tenants to the extent that Tenant has
already paid all costs for the monument signage. Tenant will bear the costs of
removal of any signage at the termination or expiration of the Lease, including
restoring or repairing damages to the monument caused by such removal to the
condition at the time of installation. Landlord shall have the right to remove
Tenant's name/signage from the monument in the event that Tenant subleases an
amount of space such that Tenant is occupying less than 25,000 rentable square
feet or if Tenant assigns the Lease (except in conjunction with a merger in
which Tenant is the surviving corporation). In addition, if Landlord is required
at any time to remove any signage, including any approved signage, due to any
Applicable Law which may now or hereafter exist or if Tenant elects to remove or
change the signage at any time, Tenant shall bear the costs and expenses of any
change or removal. Tenant will be responsible at its cost and expense to
maintain the signage in a condition acceptable to Landlord at Landlord's sole
discretion. Tenant shall not affix signage to the outside of the Building and no
signage shall be affixed to the inside of the Building without the approval of
Landlord, in Landlord's sole discretion. The rights granted to Tenant pursuant
to this Section are personal to Tenant and any assignees or subtenants of Tenant
have no rights under this Section.
4. Tenant shall provide to Landlord, at the time of execution hereof by
Tenant, a clean, unconditional, irrevocable letter of credit from a lending
institution reasonably acceptable to Landlord in the form attached hereto as
EXHIBIT G (the "Letter of Credit") as a guaranty and security for the
performance of Tenant's obligations under this Lease on the following terms and
conditions:
A. It is understood and agreed that the Letter of Credit, or a
renewal or substitute therefor approved by Landlord, shall be kept in effect
from the date of execution of this Lease through the Initial Term of the Lease.
The initial Letter of Credit shall be in the amount of $1,148,850.00. The Letter
of Credit amount shall be redetermined in the event of remeasurement of the
Premises in accordance with Paragraph 1 of the Addendum or addition of space in
accordance with Paragraph 2 of this Addendum, which amount shall equal the
product of multiplying the rentable square footage of the Premises by $34.50
(such readjusted total is hereinafter referred to an the "LC Maximum"). If the
LC Maximum, as determined as a result of such readjustment, is more than
$1,148,850.00, Tenant shall deliver to Landlord a replacement or amended Letter
of Credit in the amount of the LC Maximum within ten (10) business days of
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receipt of notice from Landlord of such remeasurement; if the LC Maximum is less
than $1,148,850.00, Tenant shall have a right to deliver a replacement or
amended Letter of Credit in the reduced amount of the LC Maximum. So long as no
Event of Default has occurred under the Lease, the LC Maximum and the amount of
any substitute or renewal Letter of Credit to be provided by Tenant hereunder
shall decline by 1/60th of the LC Maximum effective as of the first day of each
month commencing with the second full month of the Initial Term. If the Letter
of Credit would otherwise expire prior to the expiration of the Term of the
Lease, Tenant shall present Landlord with an extension or renewal of the initial
Letter of Credit, or a substitute Letter of Credit in the same form as EXHIBIT
G, no later than ten (10) business days prior to the expiration date of such
initial Letter of Credit, from a lending institution subject to Landlord's
reasonable approval; such extension, renewal or substitute Letter of Credit
shall be effective no later than the day prior to the expiration of the initial
Letter of Credit and shall continue in effect for not less than six months
through the Term of the Lease and shall be in the amount provided above. Tenant
agrees that in an Event of Default by Tenant (as defined in Section 20),
Landlord shall have a right to present the Letter of Credit (or the renewal,
extension or substitute) for payment, with amounts received to be held and
applied in accordance with subparagraph B below. Any failure of Tenant to
provide Landlord with an extension, renewal or substitute Letter of Credit, as
required hereunder, shall be deemed an Event of Default under the Lease and
Landlord shall have a right to present the Letter of Credit in accordance with
the foregoing provision; if following such presentment Tenant obtains a
substitute Letter of Credit meeting the requirements of this Paragraph and there
is no Event of Default (other than Tenant's failure to provide the renewal or
substitute Letter of Credit which resulted in such presentment) and Landlord has
not already applied the amounts received under the presented Letter of Credit to
cure an Event of Default, Landlord shall return such funds upon Landlord's
receipt of such substitute Letter of Credit. If the Letter of Credit has not
been presented for payment in accordance with this Section on or before the end
of the Term of the Lease, Landlord shall return the Letter of Credit to Tenant
within thirty (30) days after the expiration of the Term of the Lease. The
Letter of Credit shall be transferable and assignable to any person or entity
who or which is the successor or assignee of Landlord's interest under the Lease
and Tenant shall cooperate in effecting any such transfer or assignment from
time to time, including obtaining a substitute Letter of Credit (at Landlord's
cost and expense), if the existing Letter of Credit is not capable of further
transfer or assignment. Landlord shall give written notice to Tenant of transfer
of Landlord's interest resulting in transfer of the Letter of Credit. Landlord
shall deliver the then-current effective Letter of Credit to Tenant upon receipt
of any conforming renewal or substitute Letter of Credit provided in accordance
with this Paragraph and cooperate with the issuing bank to effect the release of
such then-current effective Letter of Credit. Landlord hereby approves Norwest
Bank Colorado, N.A. as the issuing lender for the initial Letter of Credit.
B. If an Event of Default occurs or this Lease is terminated
pursuant to Section 20, Landlord may use, apply or retain all or any portion of
the amounts received under the Letter of Credit, if any, for the payment of any
rent or other charge in default or for the payment of any other sum to which
Landlord may become obligated by reason of Tenant's default, or to compensate
Landlord for any loss or damage which Landlord may suffer thereby in accordance
with Section 20 of the Lease. By the later of 60 days following the later of the
expiration of the Lease or Tenant's vacation of the Premises, any amounts drawn
upon the Letter of Credit that are not applied for payment of amounts in
accordance with the foregoing provision
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shall be returned to Tenant, without payment of interest. Neither the Letter of
Credit nor the amounts received under the Letter of Credit shall be deemed a
security deposit under the Lease.
C. Landlord and Tenant agree that the annual fees charged by the lending
institution issuing the Letter of Credit (or any renewal, extension, or
substitute therefor) shall be paid by Tenant.
5. Landlord grants Tenant an option (the "Option") to extend the term of
the Lease for one (1) additional term of five (5) years (the "Option Term"). The
Option applies only to the Premises (including the Right of Offer Space if
leased by Tenant pursuant to paragraph 2 above) and is on the following
conditions:
A. Notice of Tenant's interest in exercising the Option must be given to
Landlord no earlier than 14 months and no later than 12 months prior to the
Expiration Date ("Tenant's Notice"). Not later than thirty (30) days after
receiving Tenant's Notice, Landlord will notify Tenant of the Base Rent
applicable during the Option Term in accordance with subparagraph E below
("Landlord's Notice").
B. Tenant has 15 days after receipt of Landlord's Notice to exercise the
Option by delivering notice of exercise to Landlord. If Tenant timely exercises
the Option, the Term will be deemed extended on the terms of this Section and
the parties will execute an amendment evidencing the extension.
C. Unless Landlord is timely notified by Tenant in accordance with
subparagraphs A and B above, it will be conclusively deemed that Tenant has not
exercised the Option and the Lease will expire in accordance with its terms on
the Expiration Date.
D. Tenant's rights pursuant to this Paragraph are personal to Tenant and
may not be assigned. Tenant's right to exercise the Option is conditioned on:
(i) Tenant not being in default at the time of exercise or at the time of
commencement of the Option Term; and (ii) Tenant not having subleased or vacated
more than 25% of the Premises or assigned its interest under the Lease as of the
commencement of the Option Term. Upon an assignment of the Lease, this Paragraph
is null and void.
E. The Option granted hereunder will be upon the terms of the Lease,
except that the Base Rent during the Option Term will be the rate that Landlord
would quote to third parties for space in the Building comparable to the
Premises if such space were available for leasing for a lease term paralleling
the Option Term, but in no event will the Base Rent be less than the Rent in
effect immediately prior to commencement of the Option Term.
F. After exercise or failure to exercise the Option, Tenant shall have
no further rights to extend the Term.
6. If requested by Tenant and subject to approval under Applicable Laws and
the Declaration, Landlord agrees to enter into a license agreement with Tenant
on Landlord's standard form license agreement to grant Tenant a non-exclusive,
revocable license for the term of the Lease, for the purpose of installing,
maintaining and operating two (2) non-penetrating microwave dishes, not to
exceed 18 inches in circumference (the "Dish") on a portion of the roof
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of the Building ("Roof"), the actual location to be designated by Licensor, in
Licensor's sole discretion ("Roof Space"). Licensee will not use the Roof Space
for any purpose other than operation of a microwave dish.
IN WITNESS WHEREOF, the parties hereto execute this Addendum.
VERIO INC., a Delaware corporation HIGHLAND PARK VENTURERS, LLC,
a Colorado limited liability company
By: /s/ Xxx Xxxxx
------------------------------------
Print Name: Xxx Xxxxx By: /s/ illegible
---------------------------- --------------------------------
Print Title: Vice President Authorized Signatory
---------------------------
Finance and Administration
---------------------------
ATTEST: "Landlord"
By:
---------------------------------
Print Name:
-------------------------
Print Title:
------------------------
"Tenant"
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EXHIBIT A-1 TO LEASE
THE PREMISES
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EXHIBIT B TO LEASE
REAL PROPERTY
Xxx 0, Xxxxx 0,
Xxxxxxxx Xxxx, 0xx Xxxxxxxxx
County of Arapahoe
State of Colorado.
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EXHIBIT C TO LEASE
OPERATING EXPENSES
6.1 Definitions. The additional terms below have the following meanings in
this Lease:
(1) "Base Operating Expenses" means an amount equal to the Operating
Expenses for the calendar year set forth in Section 1.5, as determined by
Landlord in accordance with this Exhibit C. Tenant acknowledges Landlord has not
made any representations or warranties that the Base Operating Expenses will
equal any specified amounts (any estimates provided by Landlord are non-binding
estimates only).
(2) "Landlord's Accountants" means that individual or firm employed by
Landlord from time to time to keep the books and records for the Building
Complex, and/or to prepare the federal and state income tax returns for Landlord
with respect to the Building Complex, which books and records shall be certified
to by a representative of Landlord. All determinations made hereunder shall be
made by Landlord's Accountants unless otherwise stated.
(3) "Rentable Area" means 97,598 rentable square feet of space. If
there is a significant change in the aggregate Rentable Area as a result of an
addition, partial destruction, modification to building design, or similar cause
which causes a reduction or increase in the Rentable Area on a permanent basis
or, if Landlord remeasures the Building and a change in Rentable Area occurs (in
accordance with the Addendum), Landlord's Accountants shall make such
adjustments in the computations as are necessary to provide for such change.
(4) "Tenant's Pro Rata Share" means the percentage set forth in
Section 1.5. If Tenant, at any time during the Term, leases additional space in
the Building or if the Rentable Area is adjusted, Tenant's Pro Rata Share shall
be recomputed by dividing the total rentable square footage of space then leased
by Tenant (including any additional space) by the Rentable Area and the
resulting figure shall become Tenant's Pro Rata Share.
(5) "Operating Expense Year" means each calendar year during the Term,
except that the first Operating Expense Year begins on the Commencement Date and
ends on December 31 of such year and the last Operating Expense Year begins on
January 1 of the calendar year in which this Lease expires or is terminated and
ends on the date of such expiration or termination. If an Operating Expense Year
is less than twelve (12) months, Operating Expenses for such year shall be
prorated.
(6) "Operating Expenses" means all operating expenses of any kind or
nature which are in Landlord's reasonable judgment necessary, appropriate, or
customarily incurred in connection with the operation and maintenance of the
Building Complex. Operating Expenses include:
(a) All real property taxes and assessments levied against the
Building Complex by any governmental or quasi-governmental authority,
including taxes,
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assessments, surcharges, or service or other fees of a nature not presently in
effect which are hereafter levied on the Building Complex as a result of the
use, ownership or operation of the Building Complex or for any other reason,
whether in lieu of or in addition to, any current real estate taxes and
assessments. However, any taxes which are levied on the rent of the Building
Complex will be determined as if the Building Complex were Landlord's only
real property. In no event do taxes and assessments include any federal or
state income taxes levied or assessed on Landlord. Expenses for tax
consultants to contest taxes or assessments are also included as Operating
Expenses (all of the foregoing are collectively referred to herein as
"Taxes"). Taxes also include special assessments, license taxes, business
license fees, business license taxes, commercial rental taxes, levies,
charges, penalties or taxes, imposed by any authority against the Premises,
Building Complex or any legal or equitable interest of Landlord. Special
assessments are deemed payable in such number of installments permitted by
law, whether or not actually so paid, and include any applicable interest on
such installments. Taxes (other than special assessments) are computed on an
accrual basis based on the year in which they are levied, even though not paid
until the following Operating Expense Year. For purposes of calculating Base
Operating Expenses hereunder, the Taxes for the Base Year shall be deemed to
be $1.80 per rentable square foot (without further adjustment under this
Exhibit for Building occupancy or status of completion);
(b) Costs of supplies, including costs of relamping and replacing
ballasts in all Building standard tenant lighting;
(c) Costs of energy for the Building Complex, including costs of
propane, butane, natural gas, steam, electricity, solar energy and fuel oils,
coal or any other energy sources;
(d) Costs of water and sanitary and storm drainage services;
(e) Costs of janitorial and security services;
(f) Costs of general maintenance, repairs, and replacements
including costs under HVAC and other mechanical maintenance contracts; and
repairs and replacements of equipment used in maintenance and repair work;
(g) Costs of maintenance, repair and replacement of landscaping,
and assessments and expenses under the declaration of protective covenants;
(h) Insurance premiums for the Building Complex, including
all-risk or multi-peril coverage, together with loss of rent endorsement; the
part of any claim paid under the deductible portion of any insurance policy
carried by Landlord; public liability insurance; and any other insurance
carried by Landlord on any component parts of the Building Complex;
(i) All labor costs, including wages, costs of worker's
compensation insurance, payroll taxes, fringe benefits, including pension,
profit-sharing and health, and legal fees and other costs incurred in
resolving any labor dispute;
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(j) Professional building management fees, costs and expenses,
including costs of office space and storage space required by management for
performance of its services;
(k) Legal, accounting, inspection, and other consulting fees
(including fees for consultants for services designed to produce a reduction
in Operating Expenses or improve the operation, maintenance or state of repair
of the Building Complex);
(l) Costs of capital improvements and structural repairs and
replacements to the Building Complex to conform to changes subsequent to the
date of issuance of the shell and core certificate of occupancy for the
Building in any Applicable Laws (herein "Required Capital Improvements"); and
the costs of any capital improvements and structural repairs and replacements
designed primarily to reduce Operating Expenses (herein "Cost Savings
Improvements"). Expenditures for Required Capital Improvements and Cost
Savings Improvements will be amortized at a market rate of interest over the
useful life of such capital improvement (as determined by Landlord's
Accountants); however, the amortized amount of any Cost Savings Improvement in
any year will be equal to the estimated resulting reduction in Operating
Expenses; and
(m) Costs incurred for Landlord's Accountants including costs of
any experts and consultants engaged to assist in making the computations;
"Operating Expenses" do not include:
(i) Costs of work, including painting and decorating, which
Landlord performs for any tenant other than work of a kind and scope which
Landlord is obligated to furnish to all tenants, including Tenant, without
further (other than as an Operating Expense) or separate charge;
(ii) Costs of repairs or other work occasioned by fire,
windstorm or other insured casualty to the extent of insurance proceeds
received;
(iii) Leasing commissions, advertising expenses, and other
costs incurred in leasing space in the Building;
(iv) Costs of repairs or rebuilding necessitated by
condemnation;
(v) Interest on borrowed money or debt amortization, except
as specifically set forth above;
(vi) Depreciation on the Building Complex;
(vii) Costs of a capital nature as determined all in
accordance with generally-accepted accounting principles consistently applied,
except as provided in subsection (1) above;
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(viii) Repair and replacement for which Landlord is
reimbursed by insurers or that are covered under warranties, including
warranties applicable to the initial construction of the Building;
(ix) Attorneys' fees, costs and disbursements and other
expenses incurred in connection with negotiations or disputes with tenants;
(x) Costs incurred due to the violation by Landlord or any
tenant of the terms and conditions of any lease or agreement pertaining to the
Building or of any Applicable law or incurred due to the Building being in
violation of any such Applicable Law, except as provided in subsection (1)
above;
(xi) Amounts paid to affiliates of Landlord for services on
or to the Building, to the extent that such amounts exceed competitive costs
for such services rendered by persons or entities of similar skill, competence
and experience;
(xii) Costs of Landlord's general administrative and
accounting expenses that would not be chargeable to operating expenses of the
Building in accordance with generally-accepted accounting principles,
consistently applied;
(xiii) Ground lease rental;
(xiv) Costs arising from or related to, in, on or about the
Building or the Real Property of any substance which may be deemed an
infectious waste or hazardous substance under any Applicable Laws, except as
provided in subsection (1) above; and
(xv) Expenses in connection with services or other benefits
which are not offered to Tenant, or for which Tenant is charged directly
(other than as Operating Expenses), but which are provided to another tenant
or occupant of the Building, or for which Landlord is reimbursed as separate
charge by another occupant or tenant.
If any lease entered into by Landlord with any tenant in the Building is on a
so-called "net" basis, or provides for a separate basis of computation for any
Operating Expenses with respect to its leased premises, Landlord's Accountants
may modify the computation of Base Operating Expenses, Rentable Area, and
Operating Expenses for a particular Operating Expense Year to eliminate or
modify any expenses which are paid for in whole or in part by such tenant. If
the Rentable Area is not fully occupied during any particular Operating Expense
Year, Landlord's Accountants may adjust those Operating Expenses which are
affected by occupancy for the particular Operating Expense Year to reflect 100%
occupancy; if the Rentable Area is not fully occupied during the Base Year,
Landlord's Accountants shall make such adjustment to reflect 100% occupancy in
determining the Operating Expenses for the Base Year. Furthermore, in making any
computations contemplated hereby, Landlord's Accountants may make such other
modifications to the computations as are required in their judgment to achieve
the intention of the parties hereto.
6.2 Additional Payment. If any increase occurs in Operating Expenses for
any Operating Expense Year during the Term in excess of the Base Operating
Expenses, Tenant shall
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pay Landlord Tenant's Pro Rata Share of the amount of such increase (less
Estimated Payments, if any, previously made by Tenant for such year).
6.3 Estimated Payments. During each Operating Expense Year beginning with
the first month of the second Operating Expense Year and continuing each month
thereafter throughout the Term, Tenant shall pay Landlord, at the same time as
Base Rent is paid, an amount equal to 1/12 of Landlord's estimate of Tenant's
Pro Rata Share of any projected increases in Operating Expenses for the
particular Operating Expense Year in excess of Base Operating Expenses, taking
into account the credit for Taxes, if any, applicable under Section 6.4(1) below
("Estimated Payment").
6.4 Annual Adjustments.
(1) Within 120 days following the end of each Operating Expense Year
(subject to extension as may be reasonably required in making such
calculations), including the first Operating Expense Year, Landlord shall submit
to Tenant a statement setting forth the exact amount of Tenant's Pro Rata Share
of the increase, if any, of the Operating Expenses for the Operating Expense
Year just completed over the Base Operating Expenses. Beginning with the
statement for each Operating Expense Year, each statement shall set forth the
difference, if any between Tenant's actual Pro Rata Share of the increase in
Operating Expenses for the Operating Expense Year just completed and the
estimated amount for such Operating Expense Year. Each statement shall also set
forth the projected increase, if any, in Operating Expenses for the new
Operating Expense Year over Base Operating Expenses and the corresponding
increase or decrease in Tenant's monthly Rent for such new Operating Expense
Year above or below the Rent paid by Tenant for the immediately preceding
Operating Expense Year. If the actual Taxes payable for 1998 are determined to
be less than $1.80 per rentable square foot (without adjustment for Building
occupancy or status of completion), Tenant shall have a right to receive a
credit from Landlord (against the Rent next to be paid following receipt of the
statement for the first Operating Expense Year) equal to such difference
multiplied by the rentable square footage of the Premises (prorated in
accordance with Paragraph 6.1(5) above if the first Operating Expense Year is
less than 12 months). Further, Tenant shall have a right to receive a similar
per rentable square foot credit annually thereafter against the Rent next to be
paid following the receipt of the statement for each Operating Expense Year or
against amounts, if any, to be paid under such statement (prorated in accordance
with Paragraph 6.1(5) above in the last Operating Expense Year if it is less
than 12 months). For example, assuming the first Operating Expense Year is 1998,
if the actual Taxes for 1998 are $1.75 per rentable square foot, then Tenant
shall have no obligation to make a payment for increases in Operating Expenses
under this provision for such Operating Expense Year but Tenant shall receive a
credit based on $0.05 per rentable square foot (prorated in accordance with
Paragraph 6.1(5) above), which credit shall also be given in subsequent
Operating Expense Years; if the actual Taxes for 1998 are $1.85 per rentable
square foot, Tenant shall pay $0.05 per rentable square foot (prorated in
accordance with Paragraph 6.1(5) above for the period, if applicable) as its Pro
Rata Share of increases in Operating Expenses for such Operating Expense Year
and no Taxes credit shall be given for that year or thereafter.
(2) To the extent that Tenant's Pro Rata Share of the increase in
Operating Expenses for the period covered by a statement is different from the
Estimated Payment during
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the Operating Expense Year just completed, Tenant shall pay Landlord the
difference within 30 days following receipt by Tenant of the statement or
receive a credit against the next due Rent, as the case may be. Until Tenant
receives a statement, Tenant's Estimated Payment for the new Operating Expense
Year shall continue to be paid at the prior Estimated Payment, but Tenant shall
commence payment of Rent based on the new Estimated Payment beginning on the
first day of the month following the month in which Tenant receives the
statement. Tenant shall also pay Landlord or deduct from the Rent, as the case
may be, on the date required for the first payment, as adjusted, the difference,
if any, between the Estimated Payment for the new Operating Expense Year set
forth in the statement and the Estimated Payment actually paid during the new
Operating Expense Year. If, during any Operating Expense Year, there is a change
in the information on which Tenant is then making its Estimated Payments so that
the prior estimate is no longer accurate, Landlord may revise the estimate and
there shall be such adjustments made in the monthly Rent on the first day of the
month following notice to Tenant as shall be necessary by either increasing or
decreasing, as the case may be, the amount of monthly Rent then being paid by
Tenant for the balance of the Operating Expense Year.
6.5 Miscellaneous. In no event will any decrease in Rent pursuant to any
provision hereof result in a reduction of Rent below the Base Rent. Delay by
Landlord in submitting any statement for any Operating Expense Year does not
affect the provisions of this Section or constitute a waiver of Landlord's
rights for such Operating Expense Year or any subsequent Operating Expense
Years.
6.6 Dispute. If Tenant disputes an adjustment submitted by Landlord or a
proposed increase or decrease in the Estimated Payment, Tenant shall give
Landlord notice of such dispute within 30 days after Tenant's receipt of the
adjustment. If Tenant does not give Landlord timely notice, Tenant waives its
right to dispute the particular adjustment. If Tenant timely objects, Tenant may
engage its own certified public accountants ("Tenant's Accountants") to verify
the accuracy of the statement complained of or the reasonableness of the
estimated increase or decrease. If Tenant's Accountants determine that an error
has been made, Landlord's Accountants and Tenant's Accountants shall endeavor to
agree upon the matter, failing which such matter shall be submitted to an
independent certified public accountant selected by Landlord with Tenant's
reasonable approval, for a determination which will be conclusive and binding
upon Landlord and Tenant. All costs incurred by Tenant for Tenant's Accountants
shall be paid for by Tenant unless Tenant's Accountants disclose an error,
acknowledged by Landlord's Accountants (or found to have occurred through the
above independent determination), of more than 25% in the computation of the
total amount of Operating Expenses, in which event Landlord shall pay the
reasonable costs incurred by Tenant to obtain such audit. Notwithstanding the
pendency of any dispute, Tenant shall continue to pay Landlord the amount of the
Estimated Payment or adjustment determined by Landlord's Accountants until the
adjustment has been determined to be incorrect. If it is determined that any
portion of the Operating Expenses were not properly chargeable to Tenant, then
Landlord shall promptly credit or refund the appropriate sum to Tenant and the
Estimated Payments shall be adjusted, if required.
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EXHIBIT D TO LEASE
COMMENCEMENT CERTIFICATE
____________________, 19__
VERIO INC., a Delaware corporation
----------------------------
----------------------------
----------------------------
RE: Lease dated as of the June 20, 1997 (the "Lease"), by and between
HIGHLAND PARK VENTURERS, LLC, a Colorado limited liability company, as
Landlord, and VERIO INC., a Delaware corporation, as Tenant
Dear Tenant:
With regard to the referenced Lease, Landlord and Tenant acknowledge the
following (initially capitalized words not otherwise defined have the same
meaning set forth in the Lease):
1. In accordance with Section 5 of the Lease, the Commencement Date is
12:01 a.m., ________________, the Initial Term commenced _____________________,
and the Expiration Date is 12:00 midnight, _________.
2. [In accordance with Paragraph 1 of the Addendum, Landlord and Tenant
agree that the rentable square footage of the Premises and the Rentable Area of
the Building have been remeasured and, based on such remeasurement, the terms
set forth in Section 1 of the Lease are amended as follows:
1.2 "PREMISES" approximately ________ rentable square feet
1.4 "BASE RENT":
Annual Per Rentable
Period Square Foot Rate Monthly
------ ------------------- -------
Months 1-36 $21.85 $_____________
Months 37-60 $22.00 $_____________
1.4 "OPERATING EXPENSES" Base Year: 1998
Pro Rata Share: ____%
1.6 "DEPOSIT": $____________________
1.9 PARKING: ____ surface spaces
____ covered spaces
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Addendum: LETTER OF CREDIT: $__________________
Work Letter ALLOWANCE: $__________________]
Please acknowledge the foregoing by having an authorized officer sign in the
space provided below and return to our office. This document may be executed in
counterparts, each of which shall constitute the original.
Facsimile signatures shall be binding as original signatures.
HIGHLAND PARK VENTURERS, LLC, a
Colorado limited liability company
By:
------------------------------------------
Authorized Signatory
"Landlord"
ACKNOWLEDGED AND AGREED this ___ day
of ______________________:
VERIO INC., a Delaware corporation
By:
-----------------------------------
Print Name:
---------------------------
Print Title:
-------------------------
ATTEST:
By:
-----------------------------------
Print Name:
--------------------------
Print Title:
-------------------------
"Tenant"
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EXHIBIT E TO LEASE
RULES AND REGULATIONS
1. The Landlord may refuse admission to the Building outside of ordinary
business hours to any person not known or not properly identified and may
require all persons admitted to or leaving the Building outside of ordinary
business hours to register. Any person whose presence in the Building at any
time shall, in the judgment of the Landlord, be prejudicial to the safety,
character, reputation and interests of the Building or its Tenants may be denied
access to the Building or may be ejected therefrom. In case of invasion, riot,
public excitement or other commotion, the Landlord may prevent all access to the
Building during the continuance of the same, by closing the doors or otherwise,
for the safety of the Tenants, the Building and protection of property in the
Building. The Landlord may require any person leaving the Building with any
package or other object to exhibit a pass from the Tenant from whose Premises
the package or object is being removed, but the establishment and enforcement of
such requirement shall not impose any responsibility on the Landlord for the
protection of any Tenant against the removal of property from the Premises or
the Tenant. The Landlord shall in no way be liable to any Tenant for damages or
loss arising from the admission, exclusion or election of any person to or from
the Tenant's Premises or the Building under the provisions of this rule.
2. Landlord reserves the right to exclude or expel from the Building any
person who in the judgment of Landlord is intoxicated or under the influence of
liquor or drugs or who shall in any manner do any act in violation of these
Rules and Regulations.
3. Tenants shall not sell or permit the sale at retail or wholesale, of
newspapers, magazines, periodicals or theater tickets in or from their Premises,
nor shall Tenants carry on or permit or allow any employee or other person to
carry on the business of stenography, typewriting, telephone answering service,
or any similar business in or from their Premises for the service or
accommodation of the occupants of any other portion of the Building, or the
business of a xxxxxx shop, beauty shop, tobacco or pipe shop, liquor store,
employment bureau. or a manicuring or chiropodist business, except with the
prior written approval of Landlord. Tenants shall not occupy or permit any
portion of their Premises to be occupied as an office or facility for the
possession, storage, manufacture or sale of narcotics of any form or kind,
without the prior written approval of Landlord.
4. Tenant shall not manufacture any commodity or prepare or dispense any
foods or beverages in their Premises, other than that prepared by employees of
Tenant, using microwave ovens and coffee makers for their own consumption, so
long as food odors are not allowed to escape from the Premises, or use the same
as sleeping apartments, unless the Premises are expressly leased for such
purposes.
5. Tenants shall not conduct directly or indirectly any auction upon their
Premises, or permit any other person to conduct an auction upon the Premises.
Tenants are not to conduct malodorous activities in or about their Premises or
the Building. Tenants will not permit gambling to be conducted in or upon their
Premises.
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6. No noise, including the playing of any musical instruments, radio or
television, which, in the judgment of the Landlord, might disturb other Tenants
in the Building, shall be made or permitted by any Tenants, and no cooking shall
be done in their Premises or the Building except as expressly approved by
Landlord. If cooking is permitted by Landlord, Tenant shall not permit any
cooking or food odors emanating within the Building to seep into other portions
of the Building. All electrical equipment used by Tenants shall be U.L.
approved. Nothing shall be done or permitted in Tenant's Premises, and nothing
shall be brought into or kept in the Premises which would impair or interfere
with any of the Building services or the proper and economic heating, cooling,
cleaning or other servicing of the Building or the Premises or the use or
enjoyment by any other Tenant within the Building, nor shall there be installed
by Tenants any ventilating, air-conditioning, electrical or other equipment of
any kind, which, in the judgment of the Landlord, might cause any such
impairment or interference.
7. Tenants shall not install or operate any steam or gas engine or boiler,
or carry on any mechanical business, in the Building. The use of oil, gas or
inflammable liquids for heating, lighting or any other purpose is expressly
prohibited. Explosives or other articles deemed extra hazardous shall not be
brought into the Building. Tenants shall not use any other method of heating
than that supplied by the Landlord.
8. Tenants shall give Landlord prompt notice of all accidents to or defects
in air-conditioning equipment, plumbing, electric facilities or any part or
appurtenance of their Premises.
9. Tenants shall not cause unnecessary labor by reason of carelessness and
indifference to the preservation of good order and cleanliness in their Premises
and in the Building. Waste and unnecessary use of electricity and other
utilities is prohibited.
10. Tenants shall use electric, gas and any other form of energy only from
such sources of supply as is furnished in the Building.
11. All deliveries to the Building for or by any Tenant are to be made
through the service entrance to Building as designated by Landlord, unless
special permission is granted by Landlord for the use of other Building
entrances. The Landlord reserves the right to inspect all freight to be brought
into the Building and to exclude from the Building all freight which violates
any of these Rules and Regulations or the lease of which these Rules and
Regulations are a part. Landlord further reserves the right to change the
Building entrance to be utilized for deliveries.
12. Furniture, equipment or supplies shall be moved in or out of the
Building only upon the elevator designated by Landlord and then only during such
hours and in such manner as may be prescribed by Landlord. Landlord shall have
the absolute right to approve or disapprove the movers or moving company
employed by Tenants and Tenants shall cause said movers to use only the loading
facilities and elevator designated by Landlord. Movers will be required to
adhere to the current moving rules and regulations (to be distributed upon
Tenant's request for mover's approval).
13. If any Tenant desires to place in the Building any unusually heavy
equipment, including large files, safes and electronic data processing
equipment, it shall first obtain written
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approval of Landlord for such placement within the Building including the
location, and for the use of the Building elevators. The Landlord shall have the
power to prescribe the weight and position of any equipment that may exceed the
weight load limits for the building structure, and may further require, at the
Tenant's expense, the reinforcement of any flooring on which such equipment may
be placed, and/or to have an engineering study performed to determine such
weight and position of equipment, to determine added reinforcement required,
and/or determine whether or not such equipment can be safely placed within the
Building. Landlord shall not be responsible for the loss of or damage to such
furniture or equipment from any cause. There shall not be used in any space, or
in the public halls of the Building, either by Tenants or by jobbers or others,
in the delivery or receipt of merchandise, any hand trucks, except those
equipped with rubber tires and side guards.
14. Tenants shall not place additional locks or bolts of any kind upon any
of the doors or windows of their Premises and no lock on any door therein shall
be changed or altered in any respect. Duplicate keys for Tenant's Premises and
toilet rooms (if applicable) shall be procured only from Landlord, which may
make a reasonable charge therefor. Upon the termination of a Tenant's lease, all
keys of the Premises shall be delivered to the Landlord.
15. At the option of the Landlord the workmen of the Landlord must be
employed by Tenants for repairs, remodeling, renovation, lettering, interior
moving of furniture and equipment, and other similar work that may be done on or
in their Premises, such work being performed by Landlord or Landlord's
contractors at Tenant's expense, including a reasonable xxxx-up, not to exceed
5%, for Landlord's overhead expense and profit for work or service performed.
16. Tenants shall permit the janitor of the Landlord to clean their
Premises. Landlord will not be responsible for lost or stolen personal property,
equipment, money or any article taken from the Premises or Building, regardless
of how or when loss occurs.
17. In the event Tenant must dispose of crates, boxes, etc., which will not
fit into office wastepaper baskets, it will be the responsibility of the Tenant
to dispose of same. In no event shall Tenants leave any refuse in the public
hallways or other areas of the Building (excepting Tenant's own Premises) for
disposal.
18. Tenants shall not place showcases or other articles in front of or
affixed to any part of the exterior of the Building, nor placed in the hall,
corridors or vestibules without the prior written consent of the Landlord.
19. Landlord may prohibit any advertising by Tenants which, in Landlord's
opinion, tends to impair the reputation of the Building. Upon written notice
from the Landlord, Tenant shall refrain from or discontinue such advertising.
20. If a Tenant employs laborers or others outside of the Building, such
Tenant shall not have its employees paid in the Building, but shall arrange to
pay their payrolls elsewhere. Tenant shall not advertise for laborers, giving an
address at the Building.
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21. Bicycles or other vehicles shall not be permitted in the offices,
halls, stairwells, corridors, lobbies, public walkways, and elevators of the
Building, nor shall any obstruction of sidewalks or entrances of the Building by
such be permitted.
22. The sidewalks, entries, passages, elevators and staircases shall not be
obstructed or used by Tenants, their servants, agents or visitors for any other
purpose than ingress and egress to and from the respective offices.
23. Canvassing, soliciting and peddling in the Building are prohibited and
Tenants shall cooperate to prevent the same.
24. No animals, birds, or pets of any kind, excluding seeing eye dogs,
shall be allowed in Tenant's Premises or Building.
25. The water closets, urinals, waste lines, vents or flues of the Building
shall not be used for any purpose other than those for which they were
constructed, and no rubbish, acids, vapors, newspapers or other such substances
of any kind shall be thrown into them. The expense caused by any breakage,
stoppage or damage resulting from a violation of this rule by any Tenant, its
employees, visitors, guests or licensees, shall be paid by Tenant.
26. All contractors and/or technicians performing work for Tenants within
the Building shall be referred to Landlord for approval before performing such
work. This shall apply to all work including but not limited to, installation of
telephone or telegraph equipment, electrical devices and attachments, and all
installations affecting floors, walls, windows, doors, ceilings, equipment or
any other physical feature of the Building. None of this work shall be done by
Tenants without Landlord's prior written approval, which approval shall not be
unreasonably withheld or delayed.
27. If any Tenant desires radio signal, communication, alarm or other
utility or service connection installed or changed, such work shall be done at
the expense of Tenant, with the prior written approval (which approval shall not
be unreasonably withheld or delayed) and under the direction of Landlord. No
wiring shall be installed in any part of the Building without Landlord's
approval and direction. Landlord reserves the right to disconnect any radio,
signal or alarm system when, in Landlord's opinion, such installation or
apparatus interferes with the proper operation of the Building or systems within
the Building.
28. Except as permitted by Landlord, Tenant shall not xxxx upon, paint
signs upon, cut, drill into, drive nails or screws into, or in any way deface
the walls, ceilings, partitions or floors of the Premises except in connection
with the installation of Tenant's equipment and furniture and except for hanging
pictures and other wall hangers, or the Building, and the repair cost of any
damage caused by any Tenant or Tenant's Agents shall be paid for by Tenant.
29. All glass, lighting fixtures, locks and trimmings in or upon the doors
and windows of the Tenant's Premises shall be kept whole and whenever any part
thereof shall be broken through cause attributable to any Tenant, its agents,
guests or employees, the same shall immediately be replaced or repaired at
Tenant's expense, and put in order under the direction and to the satisfaction
of Landlord and shall be left whole or in good repair, together with the same
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number and kind of keys as may be received by Tenants on entering upon
possession of any part of said Building or during the tenancy.
30. The cost of repairing any damage to the public portions of the Building
or the public facilities or to any facilities used in common with other Tenants,
caused by any Tenant or the employees, licensees, agents or invitees of the
Tenant, shall be paid by such Tenant.
31. Tenants shall not install any resilient tile or floor covering in the
Premises except in a manner approved by Landlord. Tenants shall not remove any
carpet or wall coverings, window blinds, window draperies, or anything affixed
to or in their Premises without the prior written approval from Landlord.
32. No awnings or other projections shall be attached to the outside of the
Building or on or around the windows of the Premises by Tenants without the
prior written consent of the Landlord. No curtains, blinds, draperies, shades or
screens shall be attached or hung in, or used in connection with, any window or
door of the Tenant's Premises by Tenants, without the prior written consent of
the Landlord. Such awnings, projections, curtains, blinds, draperies, shades,
screens or other fixtures must be of a quality, type, material and color, and
attached in the manner approved by Landlord.
33. The sashes, sash doors, windows, side glass, glass floors and any
lights or skylights that reflect or admit light into the halls or other places
of the Building shall not be covered or obstructed by Tenants without the prior
written approval from Landlord.
34. Tenants shall not have access to the roof of the Building, nor make any
installations upon or through the roof or walls of the Building, without the
prior written consent of Landlord.
35. Tenant shall cooperate fully with the life safety plans of the Building
established and administered by the Landlord. This includes participation by
Tenant and employees of the Tenant in exit drills, fire inspections, life safety
orientations and other programs relating to fire safety that may be promulgated
by the Landlord.
36. No furniture shall be placed in front of the Building or in any lobby
or corridor, without the prior written consent of Landlord. Landlord shall have
the right to remove all non-permitted signs and furniture, without notice to
Tenant, and at the expense of Tenant.
37. If any Tenant desires telegraphic, telephonic or other electric
connections, Landlord, or its agents, will direct the electricians as to where
and how the wires may be introduced, and without such direction, no boring or
cutting for wires will be permitted. Any such installation and connection shall
be made at Tenant's expense.
38. Tenant shall not unduly obstruct such pipes, conduits and ducts in the
Leased Premises so as to prevent reasonable access thereto.
39. Tenant agrees to use chair pads to be furnished by Tenant under all
rolling and ordinary desk chairs in the carpeted areas throughout the term of
this lease.
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40. Smoking is not allowed in the Premises or the Building.
41. Corridor doors when not in use, shall be kept closed.
42. Any and all furniture, equipment, plants, planters, or anything else
that Tenant desires to place on the balcony must have the prior written consent
of Landlord.
43. Signs, advertisements, graphics or notices visible in or from public
corridors or from outside the Building shall be subject to Landlord's prior
written approval.
44. All Tenant modifications resulting from remodeling in or to its
Premises must conform to the City of Englewood Building and Fire Codes, as well
as the Building Codes for Waterview One. Tenants shall obtain approval from
Landlord of any such modifications and shall deliver "as-built" plans therefor
to Landlord upon completion. Modifications shall also comply with all state and
federal codes and restrictions, including, without limitation, the Americans
With Disabilities Act.
45. No Tenant shall tamper with or attempt to adjust temperature control
thermostats in its Premises. Landlord shall adjust thermostats as required to
maintain the building standard temperature. Tenant will be billed for damage in
the event that thermostats have been tampered with.
46. It is recommended that all window blinds remain down and tilted at a
forty-five (45) degree angle toward the street to help maintain comfortable room
temperatures and conserve energy.
47. All requests for overtime air conditioning or heating must be submitted
in writing to Landlord by 2:00 p.m. on the business day prior to the day a
Tenant desires such service.
48. Tenants are required to lock all office doors leading to corridors and
to turn out all lights at the close of their working day.
49. Landlord reserves the right to rescind any of these rules and
regulations and to make such other and further rules and regulations as in its
judgment shall from time to time be required for the safety, protection, care
and cleanliness of the Building, the operation thereof, the preservation of good
order therein, and the protection and comfort of the Tenants and their agents,
employees and invitees, and the rules and regulations shall apply with equal
force to similar types of tenants. Such rules and regulations, when made and
written notice thereof given to a Tenant, shall be binding upon such Tenant in
like manner as if originally herein prescribed.
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EXHIBIT G TO LEASE
FORM OF LETTER OF CREDIT
____________________, 1997
HIGHLAND PARK VENTURERS, LLC
Waterview One
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
RE: Letter of Credit No. _____________
Gentlemen:
We hereby issue in your favor, at the request and for the account of
Verio Inc., our irrevocable Letter of Credit in the amount of
$___________________ which is available against presentation of your sight
draft. The amount of the credit shall automatically reduce without amendment by
$_________________ on the first day of each month commencing _________________,
1997. The draft must be accompanied by:
1. This Letter of Credit No. _______________; and
2. Certification signed by the manager of Highland Park
Venturers, LLC, or an officer (or partner, if such entity is
a partnership) of its transferee or assignee, stating
essentially as follows:
"The undersigned Beneficiary is the owner of the property
described in the Office Lease dated __________, 1997 by and
between Highland Park venturers, LLC, as Landlord, and Verio
Inc., as Tenant (the "Lease"). The amount requested by the
draft accompanying this statement is the amount to which
Beneficiary is entitled under the terms of the Lease as a
result of an Event of Default under the Lease and Beneficiary
requests payment of the enclosed draft under the enclosed
Letter of Credit."
This Letter of Credit shall be subject to the Special Conditions set
forth on Exhibit 1, such exhibit being considered a part hereof and incorporated
herein by reference.
We hereby agree that all drafts drawn under and in compliance with the
terms of this credit shall meet with honor upon presentation and delivery of
documents on or before 5:00 p.m., Denver time, _______________, as specified to
the drawee.
-------------------------------------
By:
----------------------------------
Title:
-------------------------------
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EXHIBIT 1
To Letter of Credit No. ___________
The Letter of Credit shall be governed by the following Special
Conditions:
1. This Letter of Credit shall be governed by and construed in
accordance with the laws of the State of Colorado, including specifically, but
not limited to, C.R.S. 4-5-101, et seq., entitled Uniform Commercial Code --
Letters of Credit, as amended. The provisions of Uniform Customs and Practice
for Documentary Credits, I.C.C. Publication No. 500, 1983 Revision, 290,
effective October 1, 1975, shall not be applicable to this Letter of Credit.
2. Issuer agrees that it may not defer honor beyond the close of the
first banking day after presentment of a sight draft drawn hereunder and
accompanying documents.
3. This Letter of Credit shall be transferable and assignable to any
person or entity who is the successor or assignee of Beneficiary's interest
under the Lease entered into on or about _________________, 1997, between
HIGHLAND PARK VENTURERS, LLC, a Colorado limited liability company and VERIO
INC., a Delaware corporation. Such transfer shall be accomplished by providing
Norwest Bank Colorado, N.A. with the appropriate transfer form and the original
letter of credit for endorsement; provided, however, that such transfer shall
not be subject to the approval of Norwest Bank Colorado, N.A.
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WORK LETTER - OPTION A
LANDLORD PERFORMS WORK
June 20, 1997
Verio Inc.
0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Re: Tenant: Verio Inc., a Delaware corporation
Premises: Approximately 33,300 rentable square feet of
space on the 1st and 2nd floors (the "Premises")
Address: 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000
Gentlemen:
Concurrently herewith, you as Tenant and the undersigned as Landlord have
executed a Lease (the "Lease") covering the Premises (the provisions of the
Lease are hereby incorporated by reference as if fully set forth herein). In
consideration of the execution of the Lease, Landlord and Tenant mutually agrees
as follows:
I. Space Planning, Engineering, and Planning Allowance
1.1 Landlord has provided to Tenant the architectural and engineering
drawings for the base building improvements to be completed by Landlord, which
drawings are listed on the attached EXHIBIT _ ("Landlord's Drawings"), and
prepared by Xxxxxxx Xxxxxx Architecture (such architectural firm or its
replacement, if replaced by Landlord prior to completion of construction, is
referred to as the "Landlord's Architect") and engineers selected and retained
by Landlord (the "Engineers"). Landlord shall have the right to make changes and
modifications in the base building improvements during construction and Landlord
shall provide copies to Tenant of modifications to Landlord's Drawings as and
when available to reflect such modifications for portions of the drawings
applicable to the Premises. The work to be completed by Landlord in accordance
with the Landlord's Drawings as modified is hereinafter referred to as the "Base
Building Work." Landlord shall complete the Base Building Work in a good and
workmanlike manner in accordance with Applicable Laws.
1.2 Tenant has retained W.E. Kieding Associates as Tenant's architect
("Tenant's Architect") and has also separately retained the Engineers
(independent of Landlord's contractual relationship) as its engineers to assist
Tenant's Architect in preparation of plans for finish work in the Premises.
Tenant shall provide to Landlord the Tenant-approved space plans for the
Premises (collectively referred to herein as "Space Plans") prepared by Tenant's
Architect by August 1, 1997; Tenant shall also have the Engineers review the
Space Plans on
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Tenant's behalf for conformity to the design specifications for the base
building structure and systems. The Space Plans shall contain information
specified in EXHIBIT A and shall be sufficiently complete to permit Landlord and
the Engineers to review such drawings for the purpose of determining conformity
with the base building specifications for the Building and for the purposes
described in Section 1.3 below. The Space Plans shall be prepared by Tenant's
Architect at Tenant's sole cost and expense, subject to Landlord's payment of
the Allowance as hereinafter provided.
1.3 Within five (5) business days after receipt by Landlord of the Space
Plans, Landlord shall review the Space Plans and confer with Tenant covering
such review. The Engineers shall advise Landlord and Tenant whether the base
building structure and systems will have to be supplemented or modified in order
to allow installation of work shown on the Space Plans. If Landlord or the
Engineers reasonably determine that the Space Plans (i) are inconsistent with
the base building specifications for the Building; (ii) do not contain all of
the information specified in Exhibit A or are not sufficiently complete to
permit Landlord to review them for the purposes set forth therein; or (iii)
indicates space usages inconsistent with the Lease, Tenant shall revise the
Space Plans accordingly and resubmit them to Landlord and the review procedure
and time frames set forth above shall be repeated. In addition to the foregoing,
Landlord may review the Space Plans to determine if Landlord, in Landlord's
discretion, will require the removal of any of such work at the expiration or
earlier termination of the Lease; if Landlord does not so inform Tenant, Tenant
shall not be required to remove any of such work at the end of the Term. All
time required for Tenant to resubmit the Space Plans and for Landlord's review
thereof after Landlord's initial review period, shall be deemed "Tenant Delay."
Tenant shall pay all costs and expenses incurred by Landlord in connection with
review and approval of the Space Plans by the Engineers, subject to Landlord's
payment of the Allowance as hereinafter provided. When approved by Landlord and
Tenant, the Space Plans shall be acknowledged as such by Landlord and Tenant
signing each sheet therefor and such approved drawings shall be deemed the
"Approved Space Plans."
1.4 On or before September 18, 1997, Tenant shall provide Landlord with
architectural working drawings prepared by Tenant's Architect (the
"Architectural Working Drawings") and structural, plumbing, fire protection,
mechanical controls, electrical and life safety engineering drawings prepared by
the Engineers ("Engineering Working Drawings") for the Premises approved by
Tenant for review by Landlord substantially in the form provided in EXHIBIT A.
The Architectural Working Drawings shall be coordinated by the Architect with
the Engineering Working Drawings prepared by the Engineers pursuant to Paragraph
1.3 above. The Architectural Working Drawings and the Engineering Working
Drawings shall be a logical extension of the Approved Space Plans. Tenant's
Architect shall be responsible for any conflicts between the Architectural
Working Drawings and field conditions. Tenant shall be responsible for the
consistency between the Architectural Working Drawings and the Engineering
Working Drawings, conflicts with the base building drawings and field conditions
and for the Architectural Working Drawings and the Engineering Working Drawings
complying with building code provisions. Landlord is obligated to notify
Tenant's architect of significant changes in Landlord's drawings. Any problems
caused by any inconsistency of the drawings shall be Tenant's sole
responsibility. If the review by Landlord uncovers design errors, Landlord shall
give notice thereof within five (5) business days after Landlord's receipt of
Architectural Working Drawings and the Engineering Working Drawings submitted by
Tenant. If Landlord
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does not reply within such period, it shall be presumed that Landlord has no
objection thereto. However, such approval shall not limit Landlord's right to
request changes in the future in the event design errors are discovered. If
Landlord notifies Tenant of design errors, Tenant shall revise the Architectural
Working Drawings and the Engineering Working Drawings accordingly and resubmit
them to Landlord and the review procedure set forth above shall be repeated.
Delay caused by such revisions shall be deemed Tenant Delay. When approved by
Landlord and Tenant, the Engineering Working Drawings and the Architectural
Working Drawings shall be acknowledged as such by Tenant and Landlord signing
each sheet thereof and such approved drawings shall be deemed the "Final Working
Drawings." The Final Working Drawings shall be sufficiently complete and
accurate so as to permit Landlord to submit the Final Working Drawings for bid
in accordance with Section 2.1 below.
1.5 Changes to the Final Working Drawings may be made only upon prior
written approval of Landlord, which approval shall not be unreasonably withheld.
Landlord shall respond to all written requests for changes within seven (7)
business days of Landlord's receipt of the same. If Landlord does not respond
within such period, Landlord shall be deemed to have consented to the requested
changes. Any delay in completion of the Finish Work which results from any such
changes or the process of approval or disapproval shall be deemed Tenant Delay.
Landlord's review of the Space Plans, Architectural Working Drawings,
Engineering Working Drawings or Final Working Drawings shall not imply approval
by Landlord for their completeness, design sufficiency, or as to compliance with
the requirements of applicable codes, rules, or regulations of any governmental
agencies having jurisdiction thereof now in effect or which may hereafter be in
effect.
II. Finish Work and Allowance
2.1 Prior to the commencement of the Finish Work, Landlord will provide
Tenant with a cost proposal for completing such Work in accordance with the
Final Working Drawings. The proposal shall include a tentative schedule and all
estimated costs of Landlord's Contractor. Tenant shall have ten (10) calendar
days to respond to such proposal and schedule, in writing. Unless Landlord
receives Tenant's written rejection within such period, the proposal and
schedule shall be deemed accepted by Tenant. If within such period Landlord
receives Tenant's written rejection of the proposal, and schedule, then Tenant
and Tenant's Architect shall forthwith meet with Landlord's representative to
revise the Final Working Drawings and/or Landlord's Contractor's pricing. All
costs of such revisions including engineering, estimating, coordination, layout
and printing of drawings and any other incidental expenses shall be borne by
Tenant (subject to Landlord's payment of the Allowance as hereinafter provided)
and any delays resulting therefrom shall be deemed Tenant Delay, except for
delays caused by revisions in Landlord's Contractor's pricing as a result of
errors by Landlord's Contractor in failing to submit a bid consistent with the
Final Working Drawings. Following approval of the Final Working Drawings,
Landlord's tenant finish contractor and subcontractors (herein referred to
collectively as "Landlord's Contractor") shall diligently perform all finish
work in the Premises, including, but not limited to, those millwork items and
all cabinetry work which are permanently attached to walls and form a part of
the Premises, substantially in accordance with the Final Working Drawings (the
"Finish Work"). The Commencement Date will be the date that Landlord delivers
the Premises to Tenant Ready for Occupancy. "Ready for Occupancy" means the date
that Landlord substantially completes the Base Building Work (subject only to
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landscaping, cosmetic and other items, the incompletion of which does not
interfere with Tenant's ability to commence Tenant's normal business office use
of the Premises) and substantially completes the Finish Work, subject only to
punchlist items as referred to in Section 2.3 below, as certified by Landlord's
Architect. If the delivery of the Premises is delayed beyond the scheduled
Commencement Date, the commencement date of the Initial Term will be delayed in
accordance with Section 5 of the Lease.
2.2 Landlord shall pay the cost of all Finish Work completed in accordance
with the Final Working Drawings (including the cost of preparation of the
Approved Space Plans and Working Drawings and the Engineer's review thereof, all
labor, materials, permits, fees and contractors and subcontractors charges) up
to a maximum calculated on the basis of Twenty Dollars ($20.00) per rentable
square foot of the Premises (the "Allowance"). Notwithstanding the foregoing,
Landlord shall have no obligation to expend more than Fifty Cents per rentable
square foot of the Premises for preparation of the Final Working Drawings prior
to commencement of construction of the Finish Work; if Tenant's Architect or the
Engineers require payment in excess of such amount, Tenant shall pay such excess
when required to be paid and later receive reimbursement from the Allowance to
the extent that Allowance is not expended for other purposes as of the
Commencement Date. The Allowance is to be expended solely for the benefit of
Landlord; that is, the Allowance will be expended only to pay for design,
engineering, installation, and construction of the Finish Work which under the
Lease becomes the property of Landlord upon installation and not for movable
furniture, equipment, cabling, and trade fixtures not physically attached to the
Premises. The cost of all Finish Work in excess of the Allowance to which Tenant
is entitled as set forth above shall be at Tenant's expense. Tenant shall pay
all such expenses in full prior to the commencement of the work by Landlord.
Landlord shall not include in costs of Finish Work a supervisory fee or
construction management fee for Landlord's personnel.
2.3 Landlord shall give notice to Tenant when Landlord anticipates that the
Finish Work has been sufficiently completed so that Tenant may enter the
Premises prior to the Commencement Date for the purpose of installing Tenant's
fixtures and equipment. During such period Tenant shall cooperate with
Landlord's contractor so as not to interfere with completion of the Finish Work.
Following preparation of the punchlist, Tenant is responsible for repair of
damage caused by Tenant's Contractors in the Building or Premises. If Tenant
takes possession of all or any part of the Premises prior to the scheduled
Commencement Date or the date the Premises are Ready for Occupancy for the
purpose of conducting its usual business therein, all terms and provisions of
the Lease shall apply as of the date Tenant commences its business, including
the obligation for the payment of all rent and other amounts owing hereunder.
Following receipt of such notice and prior to Tenant's installation of its
fixtures and equipment, the representatives of Landlord and Tenant shall jointly
inspect the Premises with Landlord's Architect and develop a punchlist of items
of the Finish Work that have not been completed, distinguishing between those
items which must be completed prior to the Premises being deemed Ready for
Occupancy for Tenant to conduct its business and those items that can be
completed by Landlord's Contractor after Tenant takes occupancy for the purpose
of conducting its business; in the event of a dispute, Landlord's Architect and
Tenant's Architect shall mutually resolve such dispute and if the Architects
cannot agree upon a resolution, the Architects shall jointly appoint an
independent architect whose determination shall be binding on the parties. No
items which are incomplete due to Tenant Delay shall be included on the
punchlist. Taking
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possession of the Premises by Tenant shall be conclusive evidence as against
Tenant that the Premises were in the condition agreed upon between Landlord and
Tenant and acknowledgment of satisfactory completion of the Finish Work except
for the punchlist items and except for latent defects of which Tenant gives
notice to Landlord within 11 months following the date the Premises are deemed
Ready for Occupancy. Landlord shall complete the punchlist items with reasonable
diligence and shall remedy latent defects of which Tenant gives notice to
Landlord in accordance with the foregoing provision.
2.4 Notwithstanding any provision herein or in the Lease to the contrary,
the Commencement Date and Tenant's rental obligations and other obligations will
not be delayed or extended by any Tenant Delay. The term "Tenant Delay", as
referred to above, shall include, but not be limited to, delay: (i) in the
preparation, finalization or approval of the Approved Space Plans or Final
Working Drawings caused by Tenant (or its agents or employees); (ii) caused by
modifications, revisions and changes to the Approved Space Plans or Final
Working Drawings due to changes requested by Tenant (or its agents or
employees); (iii) in the delivery, installation or completion of any
non-standard items specified by Tenant; (iv) in soliciting and approving
subcontractor bids; or (v) of any other kind or nature in the completion of the
Finish Work caused by Tenant (or its agents or employees). All delay other than
Tenant Delay shall be deemed Landlord Delay. If the Premises are not Ready for
Occupancy by April 30, 1998 (which date shall be subject to extension for Tenant
Delay) (the "Termination Date"), Tenant shall have a right to terminate this
Lease by written notice delivered to Landlord within fifteen (15) days following
such date but prior to the Premises being made Ready for Occupancy; provided,
however, that Landlord shall have a right to delay the Termination Date until
Landlord then estimates the Premises will be Ready for Occupancy (not in any
event to exceed 3 months) (the "Estimated Completion Date") by either (1)
arranging for Tenant to remain in Tenant's existing space (the space subject to
the Solarium Lease and the space located at 0000 Xxxx Xxxxxxxx Xxxxxx;
collectively, the "Existing Premises") and Landlord paying the portion of such
holdover rental that is in excess of the rentals being paid under such leases
prior to such holdover, or (2) making temporary substitute space of reasonably
comparable quality to the Existing Premises in the southeast suburban
metropolitan Denver area available for occupancy by Tenant until the Estimated
Completion Date at a cost to Tenant not to exceed the rentals attributable to
the Existing Space being substituted, with Landlord being responsible for all
rental costs in excess of such rentals and all costs of relocating Tenant and of
preparing the temporary substitute space for occupancy by Tenant and making it
reasonably suitable for the conduct of Tenant's business. In the event Landlord
is able to make such space available in accordance with clauses (1) or (2)
above, the Termination Date shall be extended to the Estimated Completion Date.
If the Premises are not Ready for Occupancy by the extended Termination Date,
Landlord (if Landlord has been unable to meet the Delivery Date deadline for
reasons beyond Landlord's reasonable control) or Tenant shall have the right to
terminate the Lease within fifteen (15) days of the extended Termination Date.
In the event this Lease is terminated in accordance with the foregoing
provisions, the Lease shall be deemed terminated effective as of Tenant's
delivery of its notice of termination and Landlord and Tenant shall be relieved
of all obligations arising thereafter under the Lease, as if it had expired in
accordance with its terms and Landlord shall return the Deposit and the Letter
of Credit to Tenant.
2.5 Tenant has designated Xxxxxxx Xxxxx as its sole representative with
respect to the matters set forth in this Work Letter, who shall have full
authority and responsibility to act on
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behalf of the Tenant as required in this Work Letter. Tenant has the right by
written notice to Landlord to change its designated representative.
2.6 Landlord has designated Xxxx Xxxxx as its representative with respect
to Landlord's responsibilities under this Work Letter, who shall have full
authority and responsibility to act on behalf of the Landlord as required in
this Work Letter. Landlord shall have the right, by written notice to Tenant, to
change its designated representative.
2.7 Any and all notices required to be given hereunder shall be in writing
in accordance with the terms and provisions of Section 28 of the Lease. However,
in all cases notices shall also be given to those individuals to be specified
pursuant to Paragraph 2.5 and 2.6 above.
Very truly yours,
HIGHLAND PARK VENTURERS, LLC, a
Colorado limited liability company
By:
-----------------------------------
Authorized Signature
"Landlord"
ACCEPTED AND APPROVED this
____ day of ____________. 19__.
VERIO INC., a Delaware corporation
By:
--------------------------------
Print Name:
------------------------
Print Title:
----------------------
ATTEST:
By:
--------------------------------
Print Name:
------------------------
Print Title:
----------------------
"Tenant"
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LIST OF EXHIBITS
Exhibit A Space Plan and Working Drawings Requirements
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EXHIBIT A TO OPTION A WORK LETTER
SPACE PLANS AND WORKING DRAWINGS REQUIREMENTS
I. Space Plans
Tenant's submission of Space Plans to Landlord shall comply in all
respects to the following requirements and standards. The intent of this listing
is not to be exhaustive in all details; rather, to assist Tenant and Tenant's
Architect in defining all information required Landlord's review of the space
usages and evaluation of general improvements required thereby.
1. All Space Plans shall be drawn to 1/8" scale and may be produced on
CAD equipment.
2. Tenant shall submit one (1) reverse mylar sepia and seven (7)
blueprints of all Space Plans with notes describing the general
intent of the usage and the improvement requirements.
3. The Space Plans and the notes thereon shall depict the quality of
the work to be furnished and performed, which quality level shall be
not less than the quality of the existing Building improvements.
4. Such Space Plans and notes shall include: (a) partition layout and
door locations; (b) depiction of electrical and communication
equipment requirements other than for normal office equipment,
including modifications required to floor or main telephone or
electric closets; (c) reflected ceiling plan showing non-standard
lighting and ceiling construction or constraints which will affect
mechanical, electrical, fire protection or life safety systems; (d)
Tenant's anticipated special mechanical and plumbing requirements;
(e) Tenant's anticipated special floor loading requirements; (f)
Tenant's anticipated requirements for floor penetrations, including
but not limited to special stairs, dumbwaiters, conveyors, pneumatic
systems, elevators or architectural features; and (g) approximate
information regarding anticipated structural and mechanical,
electrical, fire protection, controls and life safety system design
requirements.
II. Working Drawings
Tenant's submission of Working Drawings (construction documents
inclusive of one (1) reverse mylar and seven (7) blueprints of
Architectural and Engineering Drawings and Specifications) to Landlord
shall comply in all respects to the following requirements and
standards. The intent of this listing is not to be exhaustive in all
details; rather, to assist Tenant and Tenant's Architect in defining
all information required by Landlord to complete the Landlord's review
of the space usages and the quality and extent of the proposed
construction and its effect upon the building and building systems.
Tenant, upon receipt of Space Plan Approvals from Landlord, shall
coordinate same with the Working Drawings prepared by Tenant's
Architect, it being understood that the Working Drawings shall be
consistent with a logical extension of the Space Plans. Tenant shall be
responsible for consistency between Working Drawings and the Space
Plans.
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The Working Drawings shall depict the quality of the work to be
performed (the Tenant Improvements) and shall indicate a quality level
equal to (as determined by Landlord) or exceeding the requirements set
forth by the base building core and shell construction contract
documentation.
The Working Drawings shall include but not be limited to the following:
(a) partition layout and door locations; (b) electrical outlets,
including the location and usage thereof; (c) telephone outlets,
including description of system, size of conduit servicing each outlet,
power and mechanical requirements for system and any requirements
affecting base building construction, including modifications required
to floor or main telephone rooms; (d) reflected ceiling plan showing
standard and non-standard lighting, switching requirements and ceiling
construction or constraints which will affect mechanical, electrical,
fire protection or life safety systems and shall include all necessary
specification information and details of items or construction; (e)
Tenant's occupancy capacity, usage equipment loads for all spaces (all
specifications on usage or equipment therein, including BTU per hour
output on all equipment and parameters to the extent of special work
required), particularly special usage rooms, including but not limited
to conference rooms, lounges, coffee rooms, copy rooms, computer
terminal or keypunch rooms, audio-visual rooms and reproduction or
print rooms which require special heating, ventilating, air
conditioning or fire protection (all specifications on usage or
equipment therein, including BTU per hour output of all equipment and
parameters as to extent of special work required); (f) Tenant's floor
loading for all spaces (all specifications, weight, vibration and
vibration isolation for each item sufficiently complete for structural
engineering design), particularly special usage rooms, including, but
not limited to file rooms, storage rooms, computer rooms and
reproduction or print rooms; (g) floor penetrations, including but not
limited to special stairs, dumbwaiters, conveyors, pneumatic systems,
elevators or architectural features; (h) requirements of security,
music and paging systems, including specific locations and system
design specifications; and (i) all structural and mechanical,
electrical, fire protection, controls and life safety systems
requirements.
The Working Drawings shall include the following as well: (1) all
millwork and equipment which shall be part of the Finish Work and
become part of the Premises; (2) a complete finish schedule for all
floors, walls, ceilings, including millwork, door frames, etc; (3)
keying schedules; (4) special blocking requirements as may be required
to support wall or ceiling hung furniture or equipment; and (5) all
other information necessary to complete construction of the Premises,
including the architect's stamp if required by the Building Department.
Said Working Drawings when approved by Landlord and Tenant shall be
acknowledged as such by Tenant and Landlord signing each sheet of the
Working Drawings. These drawings shall be referred to hereinafter as
"Final Working Drawings."
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WORK LETTER -- OPTION B
TENANT PERFORMS WORK
June 20, 1997
Verio Inc.
-------------------
-------------------
-------------------
Re: Tenant: Verio Inc., a Delaware corporation
Premises: Approximately 33,300 rentable square feet of
space on the 1st and 2nd floors (the "Premises")
Address: 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000
Gentlemen:
Concurrently herewith, you ("Tenant") and the undersigned ("Landlord") have
executed a Lease (the "Lease") covering the Premises (the provisions of the
Lease are hereby incorporated by reference as if fully set forth herein and
initially capitalized words not defined have the same meaning set forth in the
Lease). In consideration of the execution of the Lease, Landlord and Tenant
mutually agree as follows:
1. Space Planning and Engineering
1.1 Landlord has provided to Tenant the architectural and engineering
drawings for the base building improvements to be completed by Landlord, which
drawings are listed on the attached EXHIBIT __ ("Landlord's Drawings"), and have
been prepared by Xxxxxxx Xxxxxx Architecture (such architectural firm or its
replacement, if replaced by Landlord prior to completion of construction, is
referred to as the "Landlord's Architect") and engineers selected and retained
by Landlord (the "Engineers"). Landlord shall have the right to make changes and
modifications in the base building improvements during construction and Landlord
shall provide copies to Tenant of modifications to Landlord's Drawings as and
when available to reflect such modifications for portions of the drawings
applicable to the Premises. The work to be completed by Landlord in accordance
with the Landlord's Drawings as modified is hereinafter referred to as the "Base
Building Work." Landlord shall complete the Base Building Work in a good and
workmanlike manner in accordance with Applicable Laws.
1.2 Tenant has retained W.E. Kieding Associates as Tenant's architect
("Tenant's Architect") and has also separately retained the Engineers
(independent of Landlord's contractual relationship) as its engineers to assist
Tenant's Architect in preparation of plans for finish work in the Premises.
Tenant shall provide to Landlord the Tenant-approved space plans for the
Premises (collectively referred to herein as "Space Plans") prepared by W.E.
Kieding Associates ("Tenant's Architect") by August 1, 1997; Tenant shall also
have the Engineers
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review the Space Plans on Tenant's behalf for conformity to the design
specifications for the base building structure and systems. The Space Plans
shall contain information specified in EXHIBIT A and shall be sufficiently
complete to permit Landlord and the Engineers to review such drawings for the
purpose of determining conformity with the base building specifications for the
Building and for the purposes described in Section 1.3 below. The Space Plans
shall be prepared by Tenant's Architect at Tenant's sole cost and expense,
subject to Landlord's payment of the Allowance as hereinafter provided.
1.3 Within five (5) business days after receipt by Landlord of the Space
Plans, Landlord shall review the Space Plans and confer with Tenant concerning
such review. The Engineers shall advise Landlord and Tenant whether the base
building structure and systems will have to be supplemented or modified in order
to allow installation of work shown on the Space Plans. If Landlord or the
Engineers reasonably determine that the Space Plans (i) are inconsistent with
the base building specifications for the Building; (ii) do not contain all of
the information specified in Exhibit A or are not sufficiently complete to
permit Landlord to review them for the purposes set forth therein; or (iii)
indicate space usages inconsistent with the Lease, Tenant shall revise the Space
Plans accordingly and resubmit them to Landlord and the review procedure and
time frames set forth above shall be repeated. In addition to the foregoing,
Landlord may review the Space Plans to determine if Landlord, in Landlord's
discretion, will require the removal of any of such work at the expiration or
earlier termination of the Lease; if Landlord does not so inform Tenant, Tenant
shall not be required to remove any of such work at the end of the Term. All
time required for Tenant to resubmit the Space Plans and for Landlord's review
thereof after Landlord's initial review period, shall be deemed "Tenant Delay."
Tenant shall pay all costs and expenses incurred by Landlord in connection with
review and approval of the Space Plans by the Engineers, subject to Landlord's
payment of the Allowance as hereinafter provided. When approved by Landlord and
Tenant, the Space Plans shall be acknowledged as such by Landlord and Tenant
signing each sheet therefor and such approved drawings shall be deemed the
"Approved Space Plans."
1.4 On or before September 18, 1997, Tenant shall provide Landlord with
architectural working drawings prepared by Tenant's Architect (the
"Architectural Working Drawings") and structural, plumbing, fire protection,
mechanical controls, electrical and life safety engineering drawings prepared by
the Engineers ("Engineering Working Drawings") for the Premises approved by
Tenant for review by Landlord substantially in the form provided in EXHIBIT A.
The Architectural Working Drawings shall be coordinated by the Architect with
the Engineering Working Drawings prepared by the Engineers pursuant to Paragraph
1.3 above. The Architectural Working Drawings and the Engineering Working
Drawings shall be a logical extension of the Approved Space Plans. Tenant's
Architect shall be responsible for any conflicts between the Architectural
Working Drawings and field conditions. Tenant shall be responsible for the
consistency between the Architectural Working Drawings and the Engineering
Working Drawings, conflicts with the base building drawings and field conditions
and for the Architectural Working Drawings and the Engineering Working Drawings
complying with building code provisions. Landlord is obligated to notify
Tenant's Architect of significant changes in Landlord's drawings. Any problems
caused by any inconsistency of the drawings shall be Tenant's sole
responsibility. If the review by Landlord uncovers design errors, Landlord shall
give notice thereof within five (5) business days after Landlord's receipt of
Architectural Working Drawings and the Engineering Working Drawings submitted by
Tenant. If Landlord
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does not reply within such period, it shall be presumed that Landlord has no
objection thereto. However, such approval shall not limit Landlord's right to
request changes in the future in the event design errors are discovered. If
Landlord notifies Tenant of design errors, Tenant shall revise the Architectural
Working Drawings and the Engineering Working Drawings accordingly and resubmit
them to Landlord and the review procedure set forth above shall be repeated.
Delay caused by such revisions shall be deemed Tenant Delay. When approved by
Landlord and Tenant, the Engineering Working Drawings and the Architectural
Working Drawings shall be acknowledged as such by Tenant and Landlord signing
each sheet thereof and such approved drawings shall be deemed the "Final Working
Drawings."
1.5 Changes to the Final Working Drawings may be made only upon prior
written approval of Landlord, which approval shall not be unreasonably withheld.
Landlord shall respond to all written requests for changes within seven (7)
business days of Landlord's receipt of the same. If Landlord does not respond
within such period, Landlord shall be deemed to have consented to the requested
changes. Any delay in completion of the Finish Work which results from any such
changes or the process of approval or disapproval shall be deemed Tenant Delay.
Landlord's review of the Space Plans, Architectural Working Drawings,
Engineering Working Drawings or Final Working Drawings shall not imply approval
by Landlord for their completeness, design sufficiency, or as to compliance with
the requirements of applicable codes, rules, or regulations of any governmental
agencies having jurisdiction thereof now in effect or which may hereafter be in
effect.
2. Finish Work and Finish Allowance
2.1 Tenant agree to execute a contract for design and construction services
to complete the Finish Work (the "Contract") with contractors and subcontractors
reasonably satisfactory to Landlord (collectively, "Tenant's Contractors").
Tenant and Tenant's Contractors will be required to adhere to the requirements
set forth on Exhibit B and such other requirements as Landlord imposes
(collectively, "Requirements"). The Contract will incorporate the provisions of
the Requirements. Prior to execution of the Contract, Tenant will provide a copy
to Landlord. Landlord will review the Contract for compliance with the
Requirements within two business days thereafter and advise further in writing.
Following approval, Tenant will promptly commence and proceed diligently to
complete the Finish Work.
2.2 Landlord has no obligation to Tenant's Contractors except for the
provision of those services which Landlord provides to other tenant finish
contractors in the Building without preference or privileges, and Landlord
agrees to provide such services. Tenant's Contractors will be obligated to
cooperate with contractors employed by Landlord who are completing work in the
Building ("Landlord's Contractors") and such Contractors will each conduct its
respective work in an orderly fashion and manner so as not to unreasonably
interfere with the other. Notwithstanding the foregoing, Tenant's subcontractors
with respect to all mechanical, electrical, fire protection and controls work in
the Premises will be the subcontractors used by Landlord for such work in the
Building.
2.3 Tenant assumes full responsibility for Tenant's Contractor's
performance of all work including compliance with Applicable Laws, and for all
Tenant's Contractors' property, equipment, materials, tools or machinery placed
or stored in the Premises during the completion
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thereof. All such work is to be performed in a good and workmanlike manner
consistent with first class standards.
2.4 Landlord shall give notice to Tenant when Landlord has determined that
all or any portion of the Base Building Work has been sufficiently completed
that Tenant's Contractors can commence completion of the Finish Work in the
Premises. Following receipt of such notice and prior to Tenant's Contractors
commencing the Finish Work, the representatives of Landlord and Tenant shall
jointly inspect the Premises with Landlord's Architect and develop a punchlist
of items of Base Building Work that have not been completed, distinguishing
between those items which must be completed prior to Tenant having Tenant's
Contractors commence work and those items that can be completed by Landlord's
Contractor while Tenant's Contractors are completing Finish Work in the
Premises; in the event of a dispute, Landlord's Architect and Tenant's Architect
shall mutually resolve such dispute and if the Architects cannot agree upon a
resolution, the Architects shall jointly appoint an independent architect whose
determination shall be binding on the parties. The date on which a portion of
the Premises is made available by Landlord to Tenant for completion of the
Finish Work subject only to punchlist items that can be completed by Landlord's
Contractor while Tenant's Contractors are completing Finish Work in the
Premises, is referred to as the "Delivery Date" for such portion of the
Premises; following the Delivery Date, Landlord shall complete the punchlist
items with reasonable diligence. Following preparation of the punchlist, Tenant
is responsible for repair of damage caused by Tenant's Contractors in the
Building or Premises. Following the Delivery Date, Tenant is responsible for the
diligent completion of all finish work substantially in accordance with the
Final Drawings (the "Finish Work"), at its sole cost and expense, subject to
Landlord's payment of the Allowance. Tenant's use and occupancy of the Premises
prior to the Commencement Date is subject to all of the terms and provisions of
the Lease, except for Tenant's obligation to pay Base Rent and its Pro Rata
Share of increases in Operating Expenses. Landlord shall not charge a
supervisory fee or construction management fee for Landlord's personnel, but
Tenant shall pay Landlord's reasonable charges for hoisting, electricity, water
and other services provided to Tenant and Tenant's Contractors between the
Delivery Date and the Commencement Date. Tenant will cause Tenant's Contractors
to: (i) conduct work so as not to unreasonably interfere with any other
construction occurring in the Building (including punchlist items in the
Premises) or any other tenants of the Building; (ii) comply with the
Requirements and all other rules and regulations relating to construction
activities in the Building promulgated from time to time by Landlord for the
Building; (iii) reach agreement with Landlord's Contractors as to the terms and
conditions for hoisting, systems interfacing, and use of temporary utilities;
and (iv) delivery to Landlord such evidence of compliance with the provisions of
this paragraph as Landlord may reasonably request.
2.5 Landlord will pay the cost of the Finish Work completed in accordance
with the Final Drawings (including the cost of preparation of the Space Plan and
Final Drawings and Landlord's review thereof) calculated on the basis of $20.00
per rentable square foot of the Premises (the "Allowance"). The cost of all
Finish Work in excess of the Allowance will be at Tenant's expense.
2.6 The Allowance is to be expended solely for the benefit of Landlord;
that is, the Allowance will be expanded only to pay for design, engineering,
installation, and construction of the Finish Work which under the Lease becomes
the property of Landlord upon installation and
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not for movable furniture, equipment, cabling, and trade fixtures not physically
attached to the Premises. Any of Landlord's costs and expenses required to be
paid by Tenant will also be paid out of the Allowance. Prior to Tenant
commencing construction of the Finish Work, Tenant shall provide Landlord with
notice of the total estimated cost of all Finish Work. Landlord shall not be
obligated to disburse any of the Allowance until Tenant shall have paid for, and
provided evidence of completion and payment for, such portion of the Finish Work
as reflects in total the amount of the estimated costs of the Finish Work in
excess of the Allowance; Landlord's disbursement of the Allowance shall be for
other Finish Work thereafter completed and paid for by Tenant. As design,
engineering, and construction work is completed and Tenant receives invoices
therefor, Tenant will submit requests for payment to Landlord not more
frequently than monthly, along with appropriate lien waivers (substantially in
the forms attached hereto as Exhibit C) and such other documentation as Landlord
requires. Following receipt of such documentation, Landlord will pay the amounts
requested by delivery to Tenant of Landlord's check(s) payable to Tenant or, at
Landlord's option, payable to Tenant and Tenant's Contractors jointly; provided,
however, to the extent that the costs set forth in Tenant's Contract plus the
costs of preparing the Final Working Drawings are estimated to exceed the
Allowance, the Allowance shall be disbursed by Landlord only for costs other
than, and after payment by Tenant for, such excess amounts. Notwithstanding the
foregoing, Landlord shall have no obligation to expend more than Fifty Cents per
rentable square foot of the Premises for preparation of the Final Working
Drawings prior to commencement of construction of the Finish Work; if Tenant's
Architect or the Engineers require payment in excess of such amount, Tenant
shall pay such excess when required to be paid and later receive reimbursement
from the Allowance to the extent that the Allowance is not expended for other
purposes as of the Commencement Date. Unless otherwise agreed by Landlord and
Tenant in writing and subject to delays beyond Tenant's reasonable control, if
any portion of the costs to be reimbursed by the Allowance has not been
requested by Tenant on or before December 31, 1998, such amount will be
forfeited by Tenant to Landlord.
2.7 Landlord will, during completion of the Finish Work and immediately
thereafter, reasonably cooperate in the balancing of the Building HVAC system
serving the Premises at Tenant's sole cost and expense. Tenant will pay all such
expenses within 10 days after billing from Landlord.
2.8 Tenant will indemnify, defend and hold harmless Landlord, Building
Manager, and Landlord's Contractors from and against liability, costs or
expenses, including attorney's fees on account of damage to the person or
property of any third party arising out of, or resulting from the performance of
the Finish Work, including, but not limited to, mechanics' or other liens or
claims (and all costs associated therewith). Tenant will also repair or cause to
be repaired at its expense all damage caused to the Premises or the Building by
Tenant's Contractors or its subcontractors. Further, Landlord will have the
right as described in Section 12.1 of the Lease to post and maintain notices of
non-liability.
2.9 Tenant agrees to submit to Landlord upon completion of all work one
reverse mylar sepia and two blueprint copies of the as built drawings (the Final
Drawings showing all changes thereon).
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2.10 Notwithstanding anything to the contrary in the Lease, the actual
"Commencement Date" will be the later of (i) the scheduled Commencement Date set
forth in Section 1 of the Lease or (ii) the 69 days after the Delivery Date.
Notwithstanding any provision herein or in the Lease to the contrary, the
Commencement Date and Tenant's Rent obligations and other obligations will not
be delayed or extended by any delay in completion of the Finish Work unless such
delay is caused by "Net Landlord Delay." The term "Landlord Delay" means any
delay in the preparation, finalization or approval of the Approved Plan or Final
Drawings or completion of the Finish Work caused by Landlord's failure to
perform its obligations under this Work Letter within the time limits set forth
herein. All delays other than Landlord Delay are deemed "Tenant Delay." "Net
Landlord Delay" means the number of days, if any, by which Landlord Delay
exceeds Tenant Delay and the Commencement Date will be delayed by a number of
days equal to the number of days of Net Landlord Delay, if any. If the Delivery
Date does not occur by February 1, 1998 (which date shall be subject to
extension for Tenant Delay) (the "Termination Date"), Tenant shall have a right
to terminate this Lease by written notice delivered to Landlord within fifteen
(15) days following such date but prior to the Delivery Date; provided, however,
that Landlord shall have a right to delay the Termination Date until Landlord
then estimates the Delivery Date will occur (not in any event to exceed 3
months) (the "Estimated Delivery Date") by either (1) arranging for Tenant to
remain in Tenant's existing space (the space subject to the Solarium Lease and
the space located at 0000 Xxxx Xxxxxxxx Xxxxxx; collectively, the "Existing
Premises") and Landlord paying the portion of such holdover rental that is in
excess of the rentals being paid under such leases prior to such holdover, or
(2) making temporary substitute space of reasonably comparable quality to the
Existing Premises in the southeast suburban metropolitan Denver area available
for occupancy by Tenant until 90 days following the Estimated Delivery Date at a
cost to Tenant not to exceed the rentals attributable to the Existing Premises
being substituted, with Landlord being responsible for all rental costs in
excess of such rentals and all costs of relocating Tenant and of preparing the
temporary substitute space for occupancy by Tenant and making it reasonably
suitable for the conduct of Tenant's business. In the event Landlord is able to
make such space available in accordance with clauses (1) or (2) above, the
Termination Date shall be extended to the Estimated Delivery Date. If the
Delivery Date does not occur on the extended Termination Date, Landlord (if
Landlord has been unable to meet the Delivery Date deadline for reasons beyond
Landlord's reasonable control) or Tenant shall have the right to terminate the
Lease within fifteen (15) days of the extended Termination Date. In the event
this Lease is terminated in accordance with the foregoing provisions, the Lease
shall be deemed terminated effective as of Tenant's delivery of its notice of
termination and Landlord and Tenant shall be relieved of all obligations arising
thereafter under the Lease, as if it had expired in accordance with its terms
and Landlord shall return the Deposit and the Letter of Credit to Tenant.
2.11 Tenant designates and authorizes Xxxxxxx Xxxxx to act for Tenant in
this Work Letter. Tenant has the right by written notice to Landlord to change
its designated representative.
2.12 Landlord designates and authorizes Xxxx Xxxxx to act for Landlord in
this Work Letter. Landlord has the right by written notice to Tenant to change
its designated representative.
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2.13 All notices required hereunder will be in writing in accordance with
Section 28 of the Lease.
Very truly yours,
HIGHLAND PARK VENTURERS, LLC, a
Colorado limited liability company
By:
------------------------------------
Authorized Signatory
"Landlord"
ACCEPTED AND APPROVED this
____ day of ____________. 19__.
VERIO INC., a Delaware corporation
By:
--------------------------------
Print Name:
-----------------------
Print Title:
-----------------------
ATTEST:
By:
--------------------------------
Print Name:
-----------------------
Print Title:
-----------------------
"Tenant"
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LIST OF EXHIBITS
Exhibit A Space Plan and Drawings Requirements
Exhibit B Landlord's Requirements of Tenant the Contractors
Exhibit C Form of Lien Waivers
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EXHIBIT A TO OPTION B WORK LETTER
SPACE PLANS AND ARCHITECTURAL DRAWINGS REQUIREMENTS
I. Space Plans
Tenant's Space Plans will comply with the following requirements which are
intended to assist Tenant and Tenant's Architect in defining all information
required for Landlord's review of the space usages and evaluation of the
improvements contemplated thereby.
1. All Space Plans will be drawn to 1/8" scale and may be produced on
CAD equipment.
2. Tenant will submit one reverse mylar sepia and two blue prints of
all Space Plans with notes describing the general intent of the
usage and the improvement requirements.
3. The Space Plans and the notes thereon will depict the quality of
the work which will be not less than the quality of the existing
Building improvements.
4. The Space Plans and notes shall include: (a) partition layout and
door locations; (b) depiction of electrical and communication
equipment requirements other than for normal office equipment,
including modifications required to floor or main telephone or
electric closets; (c) reflected ceiling plan showing non-standard
lighting and ceiling construction or constraints which will affect
mechanical, electrical, fire protection or life safety systems;
(d) Tenant's special mechanical and plumbing requirements; (e)
Tenant's special floor loading requirements; (f) Tenant's
requirements for floor penetrations, including but not limited to
special stairs, dumbwaiters, conveyors, pneumatic systems,
elevators or architectural features; and (g) approximate
information regarding anticipated structural and mechanical,
electrical, fire protection, controls and life safety systems
design requirements.
II. Architectural Drawings
Tenant's submission of Architectural Drawings (construction documents
inclusive of one reverse mylar and two blueprints of Architectural
Drawings and Specifications) to Landlord will comply with the following
requirements which are intended to assist Tenant and Tenant's Architect
in defining all information required by Landlord to complete Landlord's
review of space usages and the quality and extent of the proposed
construction and its effect upon the building and building systems.
Tenant, upon receipt of the Approved Space Plan from Landlord, will
coordinate them with the Architectural Drawings prepared by Tenant's
Architect, it being understood that the Architectural Drawings will be
consistent with and a logical extension of the Approved Space Plans.
Tenant is responsible for consistency between the Architectural
Drawings and the Approved Space Plans.
The Architectural Drawings will depict the quality of the work to be
performed (the "Finish Work") and must provide for a quality level
equal to (as determined by Landlord)
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or exceeding the requirements of the base building core and shell
construction contract documentation.
The Architectural Drawings will include but not be limited to: (a)
partition layout and door locations; (b) electrical outlets, including
the location and usage; (c) telephone outlets, including description of
system, size of conduit servicing each outlet, power and mechanical
requirements for system and any requirements affecting base building
construction, including modifications required to floor or main
telephone rooms; (d) reflected ceiling plan showing standard and
non-standard lighting, switching requirements and ceiling construction
or constraints which will affect mechanical, electrical, fire
protection or life safety systems, and will include all necessary
specifications and details of items or construction; (e) Tenant's
occupancy capacity, usage equipment loads for all spaces, particularly
special usage rooms, including but not limited to conference rooms,
lounges, coffee rooms, copy rooms, computer terminal or keypunch rooms,
audio-visual rooms and reproduction or print rooms which require
special heating, ventilating, air conditioning or fire protection (all
specifications on usage or equipment therein, including BTU per hour
output of all equipment and parameters as to extent of special work
required); (f) Tenant's floor loading for all spaces (all
specifications, weight, vibration and vibration isolation for each item
sufficiently complete for structural engineering design), particularly
special usage rooms, including, but not limited to file rooms, storage
rooms, computer rooms and reproduction or print rooms; (g) floor
penetrations, including but not limited to special stairs, dumbwaiters,
conveyors, pneumatic systems, elevators or architectural features; and
(h) all structural, mechanical, electrical, fire protection, controls
and life safety systems requirements.
The Architectural Drawings will include the following as well: (1) all
millwork and equipment which will be part of the Finish Work and become
part of the Premises; (2) a complete finish schedule for all floors,
walls, ceilings, including millwork, door frames, etc.; (3) keying
schedules; (4) special blocking requirements as may be required to
support wall or ceiling hung furniture or equipment; and (5) all other
information necessary to complete construction of the Premises,
including the architect's stamp if required by the Building Department.
The Architectural Drawings when approved by Landlord and Tenant will be
acknowledged as such by Tenant and Landlord initialing each sheet
thereof. These drawings are referred to hereafter as "Final
Architectural Drawings."
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EXHIBIT B TO OPTION B WORK LETTER
LANDLORD REQUIREMENTS OF THE CONTRACT
The Contract will be subject to review and approval of Landlord and will fully
incorporate the following provisions. In the event of any conflict between any
provisions of the Contract and the provisions below, the provisions below will
control.
1. The Contract will be in writing and will cover all aspects of the Finish
Work. No Finish Work will be performed except pursuant to the Contract.
fully executed copies of the Contract will be delivered to Landlord. If
Landlord determines that the Contract does not comply with the provisions
hereof, it will immediately be corrected and no work will be commenced in
the Premises until the deficiencies have been corrected. Any delays in
completion resulting from modifications will be Tenant Delays. Following
delivery of a copy of the Contract to Landlord and its [review] [approval],
no modification will be effective unless and until a copy thereof has been
delivered to Landlord for its review.
2. Changes in the Final Drawings will be made only upon prior written approval
of Landlord which will be deemed given if Tenant has not been informed
otherwise in writing or by oral communication confirmed in writing within 5
days of Landlord's receipt of the requested changes.
3. Scheduling of Finish Work: The Contract will obligate Tenant's Contractor
to perform Finish Work in accordance with time schedules acceptable to
Tenant, Tenant's Contractor and Landlord. Any schedule proposed by Tenant's
Contractor will be based upon Tenant's Contractor applying its best efforts
to the Finish Work.
4. Tenant's Contractor will not knowingly perform Finish Work which will
result in a lesser quality installation or provide inferior performance
than that established by the base shell and core drawings and
specifications covering similar work items. Landlord will have the right at
any time during the performance of Finish Work or thereafter to require
replacement and reconstruction at Tenant's Expense of Finish Work not
conforming to the standards and specifications in the Final Drawings.
5. Tenant and Tenant's Contractor will give all notices and comply with all
laws, ordinances, rules, regulations and orders of any public authority
relating to the performance of the Finish Work. If either party observes
that any Finish Work is at variance with any applicable codes, ordinances,
laws, rules and regulations (collectively, "Applicable Laws"), it will
promptly notify the other party and Landlord in writing, and necessary
changes will be made by Tenant. If Tenant's Contractor performs any Finish
Work that it knows is contrary to Applicable Laws, and fails to deliver
prior notice to Tenant and Landlord, Tenant's Contractor will assume full
responsibility therefor and will bear all costs attributable to repair,
replacement or correction. Tenant, Tenant's Contractor and its
subcontractors will comply with Federal, State and local tax laws, social
security acts, unemployment compensation acts and such other acts and laws
as are applicable to the performance of Finish Work.
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6. All risk of loss to all property of Tenant, Tenant's Contractor and its
subcontractors will be the sole responsibility of Tenant, Tenant's
Contractor and its subcontractors, and Landlord will have no responsibility
therefor.
7. Tenant and Tenant's Contractor agree that in order to maintain Landlord's
warranties and guarantees for the mechanical, electrical, control life
safety, and fire protection systems, all Finish Work affecting these
systems will be completed by the base shell core subcontractors performing
the respective base shell and core Work items; provided, however, at
Landlord's sole option, it may allow other subcontractors to perform work
in the Building on special systems which may require connection into the
foregoing base building systems.
8. The following insurance requirements will be complied with:
a. Minimum Coverage - Prior to any Finish Work being commenced by
Tenant's Contractor, it will obtain and maintain insurance with
minimum coverage and limits to protect Tenant and Landlord from the
claims hereafter set forth which may arise or result from Tenant's
Contractor's performance of any Finish Work, whether such work is
performed by Tenant's Contractor, its subcontractors, or by anyone for
whose acts such parties may be liable as follows (subject to the
provisions below, such limits may be provided by an appropriate
"umbrella" policy):
(1) Workmen's Compensation and occupational disease insurance at the
statutory limits provided for by the State of Colorado;
(2) Employer's liability insurance in an amount not less than
$100,000 for all damages arising from each accident or
occupational disease;
(3) Commercial general liability insurance covering: (i) Operations
premises liability;
(ii) Owner's and Contractor's protective liability;
(iii) Completed operations;
(iv) Product liability;
(v) Contractual liability;
(vi) Broad form property damage endorsement and property
damage caused by conditions otherwise subject to exclusion for
explosion, collapse or underground damage.
(4) Insurance limits:
Bodily Injury:
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$1,000,000 each occurrence; $1,000,000 aggregate completed
operations products
Property Damage
$500,000 each occurrence; $500,000 aggregate operations; $500,000
aggregate protective; $500,000 aggregate completed operations
products
(5) Comprehensive automobile liability insurance covering all owned,
hired or non-owned vehicles including the loading and unloading
thereof with limits of no less than:
Automobile Bodily Injury:
$500,000 each person; $1,000,000 each occurrence;
Automobile Property Damage:
$500,000 each person
b. Physical damage insurance covering the completed value of the Finish
Work which will afford coverage against "all risks" for physical loss
or damage.
c. Cancellation - All such insurance will be carried with a company
satisfactory to Landlord and Tenant and the liability policy will name
Landlord and Tenant and their employees and agents as additional
insured parties. Each policy will provide that it will not be
cancelled or altered except after 15 days prior written notice to
Tenant and Landlord, and the certificate of insurance will so state.
d. Policy Termination - Tenant's Contractor and each subcontractor will
maintain all insurance required hereunder during the term of the
Contract and for a period ending one year after the date of completion
of all Finish Work done pursuant to the Contract to the extent such
insurance is written in a "claims made basis."
e. Policies - Prior to commencement of work by Tenant's Contractor, it
will deliver one copy of the policies or certificates evidencing such
insurance to Tenant and Landlord. Such policies must be approved by
Tenant and Landlord prior to commencement of work. Notwithstanding the
above, Landlord may require greater coverage or larger limits by
serving notice upon Tenant. Without the written consent of Landlord,
Tenant's Contractor agrees that it will not allow any subcontractor to
commence work within the building until such subcontractor has
obtained the required insurance.
f. Umbrella Liability Insurance - Umbrella liability insurance with
limits of liability for claims of bodily injury, personal injury and
property damage liability not less than $10,000,000 each occurrence
and $10,000,000 aggregate.
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g. Waiver of Subrogation - Tenant and Tenant's Contractor will waive all
rights against each other and the subcontractors, sub-subcontractors,
agents and employees, for damages caused by fire or other perils
available under the normal "All Risk" I.S.O. insurance policy on the
work itself and the Building. [Upon receipt of evidence satisfactory
to Landlord that all insurance required to be carried hereunder has
been obtained, Landlord will, upon request of Tenant, execute a
document evidencing its agreement to waive all rights it would
otherwise have against Tenant or Tenant's Contractor for damage
covered by its property insurance on the Building.]
9. Tenant's Contractor will indemnify, defend, and hold harmless Tenant and
Landlord and their respective representatives, agents and employees from
and against all claims, damages, losses and expenses, including, but not
limited to reasonable attorney's fees, arising out of or resulting from the
performance of Finish Work or Tenant's Contractor's failure to perform in
accordance with the Contract (but specifically excluding the Finish Work
itself and the Building) which are: a) caused in whole or in part by any
negligent act or omission of Tenant's Contractor, any subcontractor, anyone
directly or indirectly employed by any of them or anyone for whose acts any
of them may be liable, regardless of whether or not such claim, loss,
damage or expense is caused in part by a party indemnified hereunder, and
b) attributable to bodily injury, sickness, disease or death, or
destruction of or damage to tangible property including loss of use
resulting from any of the foregoing acts.
Tenant's indemnification obligation under this Paragraph 9 will not be
limited by any limitation on the amount or type of damages, compensation or
benefits payable by or for the Contractor or any subcontractor under
workmen's compensation acts, disability benefit acts or other employee
benefit acts.
10. Tenant's Contractor and Tenant will agree that while Landlord may make
available to Tenant's Contractor for incorporation into the Finish Work
materials previously purchased by Landlord, Landlord is not the
manufacturer of such materials nor is it the commercial supplier of such
materials. Accordingly, Tenant and Tenant's Contractor will agree that if
either one or both of them have any claim with respect to any of such
materials supplied by Landlord for incorporation into the Finish Work,
whether such claims relate to any alleged breach of an express warranty or
an implied warranty or otherwise, any claims against Landlord whether
directly or by way of defense, counterclaim, cross claim or offset are
waived and released and such claims will be brought exclusively against the
person or entity from whom Landlord purchased such materials or against the
manufacturer. Landlord will execute such documents as may be reasonably
necessary to assign any rights Landlord would otherwise have against a
supplier or manufacturer.
11. Landlord or Tenant may require Tenant's Contractor to provide payment and
performance bonds for any or all Finish Work, such bonds to be provided at
Tenant's expense. Any bond will be requested and provided prior to
commencement of Finish Work.
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12. If Tenant's Contractor is adjudicated a bankrupt, or makes a general
assignment for the benefit of its creditors, or if a receiver is appointed
on account of Tenant's Contractor's insolvency, or if Tenant's Contractor
persistently or repeatedly refuses or fails, except in cases where delay is
justified, to supply enough properly skilled workmen or proper materials or
if Tenant's Contractor persistently disregards Applicable Laws, or
otherwise is guilty of a substantial violation of a provision of the
Contract, Tenant may, without prejudice to any right or remedy and after
giving Tenant's Contractor and its surety, if any, 7 business days' written
notice, terminate the Contract and take possession of all materials,
equipment, tools, construction equipment and machinery owned by Tenant's
Contractor and will thereafter complete the Finish Work by whatever method
it may deem expedient. In such case, Tenant's Contractor will not be
entitled to receive any further payments until completion of all Finish
Work; provided, however, that Tenant's actions will not release Tenant's
Contractor from any obligations to Tenant arising from its performance or
nonperformance prior to the date of such termination. Following completion,
Tenant will pay Tenant's Contractor an amount equal to the aggregate of the
amounts actually due under the Contract at the time of the termination,
less the cost to Tenant of completing the Finish Work.
13. Prior to commencement of any Finish Work in the Premises, Tenant's
Contractor will give written notice to Landlord and Tenant of the date work
will commence. If a subcontractor or materialman files a mechanics' lien as
a result of performing Finish Work pursuant to the Contract, then, provided
Tenant's Contractor has been paid for such work, Tenant's Contractor will
indemnify and defend Tenant and Landlord from said lien and will, when
requested by Tenant or Landlord, furnish (as Landlord or Tenant may
specify) either a bond sufficient to discharge the lien, deposit in an
escrow approved by Landlord and Tenant a sum equal to 150% of the amount of
such lien or obtain for Landlord an endorsement through Landlord's title
policy insuring against loss or damage resulting from such lien. Subject to
any restrictions of Landlord's Mortgagee on the Building, Tenant's
Contractor may, in cooperation with Landlord and Tenant, contest the
validity of a mechanics' lien, including the right to prosecute any appeals
so long as during the pendency of any contest, Tenant's Contractor will
effectively stay any official or judicial sale of the Building, upon
execution or otherwise, and so long as Tenant's Contractor immediately pays
any final judgment entered and procures record satisfaction thereof. If
Tenant or Landlord is a party to any such contest, or any other action
resulting from or arising out of the performance of the Finish Work,
Tenant's Contractor will pay all legal fees and other costs and expenses
incurred by Landlord and Tenant in such action. If Tenant's Contractor
fails to provide a bond, cash escrow or title endorsement, or otherwise
fails to fully satisfy and obtain the release of a lien in accordance with
the provisions hereof, Tenant's Contractor will be obligated to refund
Tenant or Landlord, as the case may be, all monies that the latter may pay
in discharging any such lien including costs and reasonable attorneys' fees
incurred in settling, defending against, appealing or in any other manner
dealing with any such lien.
14. Tenant's Contractor will warrant and agree at its expense to correct or
cause to be corrected any defects in the Finish Work (including, but not
limited to, defects due to defective workmanship or materials whether
supplied, installed or performed by Tenant's Contractor or any
subcontractor or supplier) which occur within one year after Tenant's
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Contractor has substantially completed the Finish Work, including
completion of all punchlist items, or for such longer period as may be set
forth in the Final Drawings. Tenant's Contractor will require a similar
warranty in all subcontracts, and will deliver to Landlord and Tenant,
together with appropriate assignments, if required, all warranties of
subcontractors and suppliers. All warranties will extend to both Landlord
and Tenant, as their respective interests in such Finish Work exist
pursuant to the Lease.
15. Tenant's Contractor will: (a) comply with all reasonable rules relating to
construction activities in the Building promulgated by Landlord or
Landlord's Contractor; (b) be responsible for reaching agreement with
Landlord as to the conditions for use of the elevators, systems
interfacing, use of temporary utilities, access to the Premises and use of
truck docks and storage areas.
16. Landlord has no obligation to Tenant's Contractor except for the provision
of those services which Landlord provides to other tenant finish
contractors in the Building without preference or privilege.
17. Landlord and Landlord's Contractor may, from time to time, inspect or
perform work within the Premises. Such inspections or work will not
conflict with Tenant's Contractor's work unless it is necessary for
completion of Landlord's Work, or is an emergency situation. Landlord may
suspend Tenant's Contractor's work in the Premises if such work, in the
opinion of Landlord or of Landlord's Contractor, presents a danger to life,
safety, or property, or in an emergency situation.
18. Tenant will give Landlord reasonable prior notice of all inspections,
punchouts and other reviews during the course of construction so that
Landlord may observe such events. Landlord will be likewise informed of all
Building Department inspections and requirements for issuance of the
Certificate of Occupancy for the Premises. Landlord's observation of any
such events will, in no event be construed or interpreted as a review or
approval by Landlord of any such work nor will it prevent Landlord, if it
thereafter discovers any deficiency in such Work, from requiring
correction. Tenant's Contractor will be solely responsible for obtaining a
Certificate of Occupancy and will submit to Landlord the original prior to
Tenant's occupancy of the Premises for the purpose of conducting business.
19. Landlord's Engineer or other agent will have the option of reviewing all
equipment and materials to be used in the construction of the Finish Work
and all work prior to Tenant move-in. Such review will in no event
constitute approval by Landlord.
20. Tenant will promptly furnish Landlord a copy of the building permit issued
to Tenant's Contractor after issuance.
21. Tenant's Contractor will not store materials or supplies in or outside the
Building (other than within the Premises) without the prior approval of
Landlord or Landlord's Contractor.
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22. All deliveries except hand-held items must be taken to the floors via the
freight elevator and not the passenger elevators. The passenger elevators
are only for passenger use not for freight or handcarts.
23. Tenant's Contractor will provide at all times direct supervision of all
work being performed for Tenant.
24. Tenant's Contractor will cooperate with Landlord in disposing refuse
resulting from the Finish Work. This may include the use of Landlord's
dumpster and a proration of charges associated with such use or at
Landlord's option at Tenant's expense the placement of Tenant Contractor's
dumpster at a location specified by Landlord.
25. Tenant's Contractor will acknowledge that the work to be performed by it
for Tenant is also for the direct benefit of Landlord. Landlord will have
the right to pursue in its own name directly against Tenant's Contractor
any rights or remedies including, without limitation, claims for damages
granted to Tenant.
If any legal action or arbitration proceeding is commenced to enforce the
provisions of the Contract or to recover damages as a result of the alleged
breach of the provisions thereof, the prevailing party will be entitled to
recover all reasonable costs incurred in connection therewith, including
attorneys' fees.
The Contract will be construed in accordance with the laws of the State of
Colorado. Subject to Paragraph 26, any litigation or other proceeding will
be decided by the District Court In and For the City and County of Denver,
State of Colorado.
26. All claims, disputes and other matters in question between Tenant and
Tenant's Contractor arising out of, or relating to, the Contract, will be
decided by arbitration in accordance with the Construction Industry
Arbitration Rules of the American Arbitration Association then obtaining
unless the parties mutually agree otherwise. No such arbitration will
include Landlord, its employees or consultants, except by written consent
of Landlord and any other party sought to be joined.
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EXHIBIT C TO OPTION B WORK LETTER
FORM OF LIEN WAIVERS
Appropriate lien waivers substantially in the forms attached hereto as Exhibits
C-1, C-2, C-3, and C-4, as the case may be, will accompany all requests for
payment by Tenant.
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EXHIBIT C-1 TO OPTION B WORK LETTER
STATE OF COLORADO ) INTERIM CONTRACTOR'S
) ss. AFFIDAVIT RELEASE AND
COUNTY OF _____________ ) LIEN WAIVER
TO WHOM IT MAY CONCERN:
The undersigned, being first duly sworn, deposes and says that:
1. He is _______________ of the ____________________, who is the general
Contractor for the project hereinafter identified (the "Contractor"), and that
the undersigned is authorized to execute and deliver this document on behalf of
the Contractor.
2. The Contractor is the contractor for the performance of certain work
and/or the furnishing of certain materials or supplies (the "Work") pursuant to
a Contract between Contractor and Verio Inc. ("Verio"), for the improvements and
project commonly known as _________________________ upon property legally
described as: _________________________, County of __________, State of
__________, hereinafter referred to as the "Property." The Property is owned by
Highland Park Venturers, LLC, a Colorado limited liability company, ("Owner").
3. This instrument is executed and delivered in consideration of and for
the purpose of inducing Verio Inc. and the Owner to make an interim payment of
$__________ under the Contract, subject to collection of any check given as
payment. The total amount of the Contract including change orders is
$__________, and the undersigned acknowledges that upon receipt of this interim
payment, the Contractor has received interim payments totalling $__________
under the Contract.
4. The undersigned for the Contractor, subject to the receipt and
collection of the interim payment herein requested, warrants and represents
that: (i) all materials delivered to said project by or for the Contractor are
for use therein only; (ii) title to all work, materials and equipment covered by
said payment, whether or not incorporated in the improvement on the Property,
has passed to the Owner, free and clear of all liens, claims, security or
encumbrances (hereinafter all referred to as "liens"); (iii) all taxes
applicable to the materials furnished for use in or on the Property and all
taxes for the Work performed under the Contract have been fully paid; and (iv)
all laborers, mechanics, subcontractors, materialmen and suppliers for all work
done and for all materials, machinery, equipment, fixtures, tools, scaffolding
and appliances furnished for the performance of the Contract and for any other
indebtedness connected therewith for which Verio or the Owner of the Property
might be responsible have been paid in full to the date hereof. Contractor, to
the extent of the total of interim payments received, for itself, its
successors, and on behalf of all persons able to claim through or under the
Contractor: (a) waives, relinquishes and releases all liens and rights of claims
to liens for labor or materials furnished in the construction, improvement,
alteration or repair involved in performance under the Contract; (b) agrees (1)
to save Verio and Owner harmless from all liability, costs and expenses,
including reasonable attorneys' fees, resulting from mechanic's and/or
materialmen's liens for the performance of work or the furnishing of materials
or supplies pursuant to the
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Contract, (2) to discharge (by bond or otherwise) or to defend suit to enforce
any mechanic's or materialmen's lien, claim to or right of action for any such
lien which may be filed, and (3) to satisfy any claims or demands which arise
out of, which are due to or which may be made for, any work performed or
supplies furnished under the Contract or in furtherance of the construction or
completion of the Contract, whether directly or indirectly attributable to the
Contract; and (c) hereby releases Verio and the present and any future Owner of
the Property, the Property, and any lender who may now or hereafter have a
security interest in the Property, from all claims, rights of action,
liabilities and liens which may be filed or asserted in connection with the
Contract.
Dated this _____ day of __________, 19___.
------------------------------------------
Authorized representative of Contractor
SUBSCRIBED AND SWORN TO before me this _____ day of __________, 19___.
My commission expires ____________________.
-----------------------------------------
Notary Public
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EXHIBIT C-2 TO OPTION B WORK LETTER
STATE OF COLORADO ) FINAL CONTRACTOR'S
) AFFIDAVIT, RELEASE AND
COUNTY OF _____________ ) LIEN WAIVER
TO WHOM IT MAY CONCERN:
The undersigned, being first duly sworn, deposes and says that:
1. He is _______________ of the ____________________, who is the general
Contractor for the project hereinafter identified (the "Contractor"), and that
the undersigned is authorized to execute and deliver this document on behalf of
the Contractor.
2. The Contractor is the contractor for the performance of certain work
and/or the furnishing of certain materials or supplies (the "Work") pursuant to
a Contract between Contractor and Verio Inc. ("Verio") for the improvements and
project commonly known as _________________________ upon property legally
described as: _________________________, County of __________, State of
__________, hereinafter referred to as the "Property." The Property is owned by
Highland Park Venturers, LLC, a Colorado limited liability company ("Owner").
3. This instrument is executed and delivered in consideration of and for
the purpose of inducing Verio and the Owner to make final payment of $__________
under the Contract, subject to collection of any check given as payment. The
total amount of the Contract including change orders is $__________, and the
undersigned acknowledges that upon receipt of this final payment, the Contractor
has been paid in full the total contract price under the Contract.
4. The undersigned for the Contractor, subject to the receipt and
collection of the final payment herein requested, warrants and represents that:
(i) all materials delivered to said project by or for the Contractor are for use
therein only; (ii) title to all work, materials and equipment covered by said
payment, whether or not incorporated in the improvement on the Property, has
passed to the Owner, free and clear of all liens, claims, security or
encumbrances (hereinafter all referred to as "liens"); (iii) all taxes
applicable to the materials furnished for use in or on the Property and all
taxes for the Work performed under the Contract have been fully paid; and (iv)
all laborers, mechanics, subcontractors, materialmen and suppliers for all work
done and for all materials, machinery, equipment, fixtures, tools, scaffolding
and appliances furnished for the performance of the Contract and for any other
indebtedness connected therewith for which Verio and the Owner of the Property
might be responsible have been paid in full. Contractor for itself, its
successors, and on behalf of all persons able to claim through or under the
Contractor: (a) waives, relinquishes and releases all liens and rights of claims
to liens for labor or materials furnished in the construction, improvement,
alteration or repair involved in performance under the Contract; (b) agrees (1)
to save Verio and Owner harmless from all liability, costs and expenses,
including reasonable attorneys' fees, resulting from mechanic's and/or
materialmen's liens for the performance of work or the furnishing of materials
or supplies pursuant to the Contract, (2) to discharge (by bond or otherwise) or
to defend suit to enforce any mechanic's or materialmen's lien, claim to or
right of action for any such lien which may be
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filed, and (3) to satisfy any claims or demands which arise out of, which are
due to or which may be made for, any work performed or supplies furnished under
the Contract or in furtherance of the construction or completion of the
Contract, whether directly or indirectly attributable to the Contract; and (c)
hereby releases Verio and the present and any future Owner of the Property, the
Property, and any lender who may now or hereafter have a security interest in
the Property, from all claims, rights of action, liabilities and liens which may
be filed or asserted in connection with the Contract.
Dated this _____ day of __________, 19___.
---------------------------------------
Authorized representative of Contractor
SUBSCRIBED AND SWORN TO before me this _____ day of __________, 19___.
My commission expires ____________________.
---------------------------------------
Notary Public
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EXHIBIT C-3 TO OPTION B WORK LETTER
------------------------------------ INTERIM SUBCONTRACTOR'S OR
Project MATERIAL SUPPLIER'S AFFIDAVIT,
RELEASE AND LIEN WAIVER
------------------------------------
Job Address
------------------------------------
Job Number
STATE OF COLORADO )
) ss.
COUNTY OF __________ )
The undersigned subcontractor or material supplier (herein referred to as
"Subcontractor"), being first duly sworn, deposes and says that: He is over the
age of 21 years and resides at: ____________________.
(IF SUBCONTRACTOR IS AN INDIVIDUAL:)
1._______He is the Subcontractor referred to herein.
(IF SUBCONTRACTOR IS A PARTNERSHIP:)
1._______He is a general partner in _____________________, a co-partnership
composed of the undersigned and carrying on business at _______________, City of
______________. Said co-partnership is the Subcontractor referred to herein.
(IF SUBCONTRACTOR IS A CORPORATION:)
1._______He holds the title of _____________, in __________________, a
corporation organized under the laws of the State of ________________, carrying
on business at ______________, City of __________________, State of
_______________, which corporation is the Subcontractor referred to herein. The
undersigned is authorized to execute this instrument on its behalf.
2._______Subcontractor is a subcontractor or material supplier for the
performance of certain work and/or the furnishing of certain materials or
supplies pursuant to an agreement or purchase order, as the case may be
(hereinafter called the "Subcontract, "which term will refer to the agreement or
purchase order, as the case may be), under a general contract
between--(hereinafter called "Contractor"), and Verio Inc. (hereinafter called
"Verio"), for the improvements or project known as ____________________, at
____________________, City of ______________________, County of
_____________________, State of _______________ (hereinafter called the
"Property"). The Property is owned by Highland Park Venturers, LLC, a Colorado
limited liability company ("Owner").
3 .______This instrument is delivered in consideration of and for the
purpose of inducing Contractor to make interim payment of $__________ under the
Subcontract, subject to collection of any check given as payment. Subcontractor
acknowledges that upon receipt of this interim
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payment, Subcontractor has received from Contractor interim payments totaling
$_________ under the Subcontract.
4._______Subcontractor warrants and represents that: (i) all materials
delivered to said project by or for Subcontractor are for use therein only; (ii)
title to all work, material and equipment covered by said payment, whether or
not incorporated in the Property, has passed to the Owner, free and clear of all
liens, claims, security interests or encumbrances (hereinafter all referred to
as "liens"); (iii) all taxes applicable to the materials furnished and the work
performed under the Subcontract have been fully paid; and (iv) all laborers,
mechanics, sub-subcontractors, materialmen and suppliers for all work done and
for all materials, machinery, equipment, fixtures, tools, scaffolding and
appliances furnished for the performance of the Subcontract and for any other
indebtedness connected therewith for which Verio or the Owner of the Property
might be responsible have been paid in full to the date hereof. Subcontractor,
to the extent of the total of interim payments received, for itself, its
successors, and on behalf of all persons able to claim through or under
Subcontractor: (a) waives, relinquishes and releases all liens and right or
claim to a lien for labor or materials furnished in the construction
improvement, alteration or repair involved in performance under the Subcontract;
(b) agrees to save Contractor harmless from all liability, costs and expenses,
including reasonable attorneys' fees, to: (1) discharge (by bond or otherwise)
or to defend suit to enforce, any mechanics' or materialmen's lien, claim to or
right of action for such lien, which may be filed and (2) satisfy any claims or
demands arising out of, due or which may be made, directly or indirectly
attributable to the Subcontract, any work performed or supplies furnished
thereunder, or in furtherance of the construction or completion of the
Subcontract work; and (c) hereby releases Contractor, any money earned by
Contractor, Contractor's sureties, Verio, the present and any future Owner, the
Property and any lender who may now or hereafter have a security interest
therein, from all claim, right of action, liability and lien which may be filed
or asserted in connection with the Subcontract.
Dated this _____ day of __________, 19__.
---------------------------------------------------
As Subcontractor, General Partner of Subcontractor,
or Authorized Officer of Subcontractor, above
described
STATE OF ____________ )
) ss.
COUNTY OF __________ )
Subscribed and sworn to before me this _______ day of ____________, 19__,
by ______________, known to me to be the above-named signatory, who personally
appeared before me and acknowledged that the foregoing instrument was freely and
voluntarily executed for the uses and purposes and on behalf of the
Subcontractor therein mentioned.
My commission expires ________________.
---------------------------------------------------
Notary Public in and for
said County and State
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EXHIBIT C-4 TO OPTION B WORK LETTER
------------------------------------ INTERIM SUBCONTRACTOR'S OR
Project MATERIAL SUPPLIER'S AFFIDAVIT,
RELEASE AND LIEN WAIVER
------------------------------------
Job Address
------------------------------------
Job Number
STATE OF COLORADO )
) ss.
COUNTY OF __________ )
The undersigned subcontractor or material supplier (herein referred to as
"Subcontractor"), being first duly sworn, deposes and says that: He is over the
age of 21 years and resides at: _________________.
(IF SUBCONTRACTOR IS AN INDIVIDUAL:)
1. He is the Subcontractor referred to herein.
(IF SUBCONTRACTOR IS A PARTNERSHIP:)
1. He is a general partner in __________________________________, a
co-partnership composed of the undersigned and carrying on business at
______________________________, City of _____________. Said co-partnership is
the Subcontractor referred to herein.
(IF SUBCONTRACTOR IS A CORPORATION:)
1. He holds the title of ______________, in
____________________________, a corporation organized under the laws of the
State of ________________________, carrying on business at
________________________, City of ________________, State of ________________,
which corporation is the Subcontractor referred to herein. The undersigned is
authorized to execute this instrument on its behalf.
2. Subcontractor is a subcontractor or material supplier for the
performance of certain work and/or the furnishing of certain materials or
supplies pursuant to an agreement or purchase order, as the case may be
(hereinafter called the "Subcontract," which term will refer to the agreement or
purchase order, as the case may be), under a general contract between
(hereinafter called "Contractor"), and Verio Inc. (hereinafter called the
"Verio"), for the improvements or project known as ___________________ at
___________________________, City of ____________, County of ______________,
State of ___________ (hereinafter called the "Property"). The Property is owned
by Highland Park Venturers, LLC, a Colorado limited liability company ("Owner").
3. This instrument is delivered in consideration of and for the
purpose of inducing Contractor to make final payment of $__________, subject to
collection of any check given as payment. Subcontractor acknowledges that upon
receipt of this final payment, Subcontractor has
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been paid in full the total subcontract price of $__________, for all of the
work performed under the Subcontract, including retainage, if any.
4. Subcontractor warrants and represents that: (i) all materials
delivered to said project by or for Subcontractor are for use therein only; (ii)
title to all work, material and equipment covered by said payment, whether or
not incorporated in the Property, has passed to the Owner, free and clear of all
liens, claims, security interests or encumbrances (hereinafter all referred to
as "liens"); (iii) all taxes applicable to the materials furnished and the work
per-formed under the Subcontract have been fully paid; and (iv) all laborers,
mechanics, sub-subcontractors, materialmen and suppliers for all work done and
for all materials, machinery, equipment, fixtures, tools, scaffolding and
appliances furnished for the performance of the Subcontract and for any other
indebtedness connected therewith for which Verio or the Owner of the Property
might be responsible have been paid in full. Subcontractor for itself, its
successors, and on behalf of all persons able to claim through or under
Subcontractor: (a) waives, relinquishes and releases all liens and right or
claim to a lien for labor or materials furnished in the construction
improvement, alteration or repair involved in performance under the Subcontract;
(b) agrees to save Contractor harmless from all liability, costs and expenses,
including reasonable attorneys' fees, to: (1) discharge (by bond or otherwise)
or to defend suit to enforce, any mechanics' or materialmen's lien, claim to or
right of action for such lien, which may be filed and (2) satisfy any claims or
demands arising out of, due or which may be made, directly or indirectly
attributable to the Subcontract, any work performed or supplies furnished
thereunder, or in furtherance of the construction or completion of the
subcontract work; and (c) hereby releases Contractor, any money earned by
Contractor, Contractor's sureties, Verio, the present and any future Owner, the
Property and any lender who may now or hereafter have a security interest
therein, from all claim, right of action, liability and lien which may be filed
or asserted in connection with the Subcontract.
Dated this ______ day of ___________________, 19__.
---------------------------------------
As Subcontractor, General Partner of
Subcontractor, or Authorized Officer of
Subcontractor, above described
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STATE OF ____________ )
) ss.
COUNTY OF __________ )
Subscribed and sworn to before me this ___ day of ___________, 19__, by
____________________, known to me to be the above-named signatory, who
personally appeared before me and acknowledged that the foregoing instrument was
freely and voluntarily executed for the uses and purposes and on behalf of the
Subcontractor therein mentioned.
My commission expires __________________.
--------------------------------
Notary Public in and for said
County and State
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FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT, dated as of December 16,
1997, is entered into by and between HIGHLAND PARK VENTURERS, LLC, a Colorado
limited liability company ("Landlord") and VERIO INC., a Delaware corporation
("Tenant").
Recitals:
A. Landlord and Tenant entered into a written lease agreement, dated
June 20, 1997 (the "Lease"). (Initially capitalized terms not otherwise defined
herein have the same meaning as in the Lease.)
B. Tenant has exercised its Right of First Offer set forth in
Paragraph 2 of the Addendum to the Lease (the "Right"). In addition, Tenant
desires to lease additional space adjacent to the space subject to the Right.
C. Landlord and Tenant desire to amend the Lease in the manner and
form hereinafter set forth to evidence the addition of the Right of First Offer
Space and such additional space.
NOW, THEREFORE, for good and valuable consideration, Landlord and
Tenant hereby agree as follows:
1. Tenant has exercised its Right prior to the Commencement Date of
the Lease and, accordingly, the Right of First Offer Space (approximately 5,600
rentable square feet of space as depicted on Exhibit A-2 to the Lease) is added
to the Lease effective as of the Commencement Date of the Lease (as determined
in accordance with the Work Letter) for the Initial Term on all terms and
conditions of the Lease. In addition, Landlord and Tenant agree that an
additional 348 rentable square feet of space adjacent to the Right of First
Offer Space shall be added to the Lease effective at the same time and on the
same terms and conditions as otherwise applicable to the Right of First Offer
Space. The Right of First Offer Space and such additional 348 rentable square
feet, collectively approximately 5,948 rentable square feet as depicted on
Exhibit A-3, attached hereto and incorporated herein by this reference, are
referred to as the "Additional Space." Upon completion of the RFO Final Drawings
for the Additional Space, such space shall be subject to remeasurement in
accordance with Paragraph 1.A of the Addendum, in which event the square footage
of the Additional Space, Tenant's Pro Rata Share, the RFO Allowance and the
Parking Spaces, all as attributable to the Additional Space, shall be revised to
reflect such remeasurement.
2. Monthly Base Rent for the Additional Space, payable in addition to
Base Rent for the initially demised Premises and in accordance with the Lease,
shall be as follows (subject to final adjustment in accordance with Paragraph 1
of the Addendum to the Lease as referred to above):
Period Monthly
------ -------
Months 1-36 $10,830.32
Months 37-60 $10,904.67
3. The Premises shall consist of approximately 39,248 rentable square
feet of space and Tenant's Pro Rata Share set forth in Section 1.5 is amended to
40.2139%, subject to final adjustment in accordance with Paragraph 1 of the
Addendum to the Lease.
84
4. The Additional Space shall not be considered part of the Premises
for purposes of completing tenant finish work under the Work Letter attached to
the Lease; however, Landlord shall provide the Allowance prorated for the
Additional Space and Landlord shall contract for completion of the RFO Finish
Work for the Additional Space in accordance with the RFO Work Letter attached
hereto.
5. Concurrent with execution hereof, Tenant will deposit with Landlord
$10,830.32 as an additional Security Deposit for a total Security Deposit of
$71,464.07, to be held by Landlord in accordance with the Lease.
6. The LC Maximum as provided in the Paragraph 4 of the Addendum is
increased to $1,354,056.00 based on the 39,248 rentable square feet referred to
in Paragraph 3 above and on the execution hereof Tenant shall provide Landlord
with an endorsement or amendment to the Letter of Credit increasing the amount
under the Letter of Credit to the revised LC Maximum or Tenant shall provide a
substitute Letter of Credit in such LC Maximum amount (in which event, Landlord
shall surrender the original Letter of Credit upon determination that the
substitute Letter of Credit complies with the terms of the Lease). Such amount
shall be subject to further readjustment based on the remeasurement of the
Premises as provided in Paragraph 4 of the Addendum.
7. Section 1.9 of the Lease shall be amended to 181 surface spaces and
7 covered spaces.
8. Tenant represents it has not employed any broker with respect to
this Amendment and has no knowledge of any broker's involvement in this
transaction except the Brokers listed in Sections 1.14 and 1.15 of the Lease.
Tenant and Landlord shall each indemnify the other against any expense incurred
by other Landlord as a result of any claim for commissions or fees by any other
broker, finder, or agent, whether or not meritorious, employed by the other or
claiming by, through, or under the other, other than the Brokers. Tenant
acknowledges Landlord is not liable for any representations by the Brokers
regarding this Amendment.
9. If there is any conflict between the terms of this Amendment and
the terms of the Lease, the terms of this Amendment govern. The Lease as hereby
amended is in full force and effect, is hereby ratified and affirmed by the
parties, and is binding upon the parties in accordance with its terms.
10. Time is of the essence herein.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written and is effective upon delivery of a fully
executed copy to Tenant.
VERIO INC., a Delaware corporation HIGHLAND PARK VENTURERS, LLC, a
Colorado limited liability company
By: /s/ XXX X. XXXXX
----------------------------------
Print Name: XXX X. XXXXX By: /s/ [ILLEGIBLE]
-------------------------- --------------------------------
Print Title: VP Finance Authorized Signatory
ATTEST: "Landlord"
By:
----------------------------------
Print Name:
--------------------------
Print Title:
-------------------------
"Tenant"
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EXHIBIT A-3
LEVEL ONE PLAN
ONE HIGHLAND PARK
OFFICE BUILDING
