Telecom
Wireless
Corporation
December 21, 1999
Prentice Point Limited Partnership
c/o Boston Financial
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: PRENTICE POINT LEASE, SUITE 1120
Ladies and Gentlemen:
This will confirm our additional understandings and agreements with
respect to the Office Lease dated as of December 21, 1999 (the "Office
Lease"), between Prentice Point Limited Partnership, as landlord ("Prentice
Point"), and Telecom Wireless Corporation, as tenant ("TWC"): 1) the net
rentable space of the premises is 8,215 sq. ft.; 2) the minimum rent per
square foot is $24.50 for the first twenty-five months of the Office Lease;
3) TWC may install telephone, telecommunications and other equipment anytime
after the Office Lease is signed and may move into Suite 1120 anytime during
or after the week of December 27, 1999, but not on January 1 or 2, 2000; 4)
TWC may install antennae and satellite/microwave dishes on the roof of the
building at the standard charge to other tenants and may run necessary wiring
to the premises; and 5) Prentice Point will lower the height of or remove, at
the option of TWC, the partial walls on the west side of Suite 1120 at no
cost to TWC. We understand that moving and installation of equipment and
wiring must be coordinated with the building engineer.
Please sign in the space provided below and return this letter to
us. Thank you for your consideration of our requirements.
Sincerely,
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Accepted and agreed to this _____ day of December, 1999.
Prentice Point Limited Partnership
---------------------------------
Authorized Partner
OFFICE LEASE
between
PRENTICE POINT LIMITED PARTNERSHIP,
a Delaware limited partnership
(as Landlord)
and
TELECOM WIRELESS CORPORATION,
a Utah corporation
(as Tenant)
Section Page
------- ----
1. PRINCIPAL TERMS..........................................................................................1
2. GENERAL COVENANTS........................................................................................2
3. TERM.....................................................................................................2
4. RENT.....................................................................................................2
5. COMPLETION OR REMODELING OF THE PREMISES.................................................................2
6. OPERATING EXPENSES/REAL ESTATE TAXES.....................................................................3
7. SERVICES.................................................................................................6
8. QUIET ENJOYMENT..........................................................................................7
9. DEPOSIT..................................................................................................7
10. CHARACTER OF OCCUPANCY...................................................................................7
11. MAINTENANCE, ALTERATIONS AND REENTRY BY LANDLORD.........................................................7
12. ALTERATIONS AND REPAIRS BY TENANT........................................................................8
13. MECHANICS' LIENS.........................................................................................8
14. SUBLETTING AND ASSIGNMENT................................................................................8
15. DAMAGE TO PROPERTY.......................................................................................9
16. INDEMNITY TO LANDLORD....................................................................................9
17. SURRENDER AND NOTICE....................................................................................10
18. INSURANCE, ▇▇▇▇▇▇▇▇, AND RESTORATION OF PREMISES........................................................10
19. CONDEMNATION............................................................................................10
20. DEFAULT BY TENANT.......................................................................................11
21. DEFAULT BY LANDLORD.....................................................................................12
22. SUBORDINATION AND ATTORNMENT............................................................................13
23. REMOVAL OF TENANT'S PROPERTY............................................................................13
24. HOLDING OVER: TENANCY MONTH-TO-MONTH....................................................................13
25. PAYMENTS AFTER TERMINATION..............................................................................13
26. STATEMENT OF PERFORMANCE................................................................................14
27. MISCELLANEOUS...........................................................................................14
28. AUTHORITIES FOR ACTION AND NOTICE.......................................................................15
29. PARKING.................................................................................................15
30. SUBSTITUTE PREMISES.....................................................................................16
31. BROKERAGE...............................................................................................16
32. LEGAL FEES; PREPARATION OF LEASE........................................................................16
33. COUNTERPARTS............................................................................................16
34. ADDENDUM/EXHIBITS.......................................................................................16
LEASE AGREEMENT
THIS LEASE, dated as of December 21, 1999, is by and between PRENTICE POINT
LIMITED PARTNERSHIP, a Delaware limited partnership ("Landlord") and TELECOM
WIRELESS CORPORATION, a Utah corporation ("Tenant").
WITNESSETH:
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": Prentice Point, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
1.2 "PREMISES": Suite #1120
1.3 "INITIAL TERM": 2 years, 1 month
"Commencement Date": February 1, 2000
"Expiration Date": February 28, 2002
1.4 "MINIMUM RENT": PERIOD ANNUAL MONTHLY
------ ------ -------
Months 1-25 $201,267.50 $16,772.29
1.5 OPERATING EXPENSES/ Base Operating Expenses: calendar year 2000
REAL ESTATE TAXES: Base Real Estate Taxes: calendar year 2000
Pro Rata Share: 4.09%
1.6 "DEPOSIT": $17,000.00
1.7 "PERMITTED USE": General business offices
1.8 "GUARANTOR": None
1.9 PARKING: 32 spaces ("Tenant's Maximum")
1.10 LANDLORD'S NOTICE ADDRESS: Prentice Point Limited Partnership
c/o Boston Financial
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Coordinator
copy to: Prentice Point Limited Partnership
c/o Boston Financial
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: General Counsel
and copy to: ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇. Suite 2200
Denver, CO 80202-3622
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
and copy to: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Boston Financial Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and copy to: Prentice Point Limited Partnership
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Building Manager
1.11 LANDLORD'S TAX I.D.: ▇▇-▇▇▇▇▇▇▇
1.12 TENANT'S NOTICE ADDRESS:
Precommencement Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Post Commencement Address: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
1.13 TENANT'S TAX I.D.: [PLEASE PROVIDE] ▇▇-▇▇▇▇▇▇▇
1.14 LANDLORD'S BROKER: Venture Group Real Estate, LLC
1.15 COOPERATING BROKER: None
1.16 ATTACHMENTS: [check if applicable]
_X_ Exhibit A - Diagram of Premises
_X_ Exhibit B - Real Property
___ Exhibit C - Premises Completion
___ Exhibit D - Form of First Amendment
_X_ Exhibit E - Rules and Regulations
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, 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 Building, Real Property, Common Areas, and
appurtenances are hereinafter collectively sometimes called the "Building
Complex."
3. TERM. The Initial Term of the Lease commences at 12:01 a.m. on the
Commencement Date and terminates at 12:00 midnight on the Expiration Date
(the Initial Term together with any extensions thereof is herein referred to
as the "Term"). Tenant and its agents and contractors shall have the right,
commencing on January 4, 2000, to enter and occupy the Premises with no
obligation to pay Minimum Rent during such early occupancy period; provided,
however, that such occupancy shall be on all other terms and conditions of
this Lease. During such early occupancy period, Tenant will allow Landlord
access to any portion of the Premises during ordinary business hours
necessary for the purpose of completing the Finish Work. Landlord will use
reasonable efforts subject to causes beyond its reasonable control to
minimize any disruption of ▇▇▇▇▇▇'s business in completing the Finish Work.
Tenant acknowledges that some inconvenience and disruption of its business is
inevitable. Landlord will not be liable for any loss of business due to such
disruption, and it will not constitute an eviction of Tenant or entitle
Tenant to any abatement of rent.
4. RENT. Subject to the provisions below, commencing on the Commencement
Date and on the first day of each month thereafter, Tenant shall pay Minimum
Rent in the amount stated in Section 1.4, in advance without notice (all
amounts, including Minimum 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 the
management office in the Building, or at such other place as Landlord from
time to time designates in writing. Notwithstanding the foregoing, Tenant
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shall have the right to occupy the Premises without payment of Minimum Rent
for the first month following the Commencement Date (the "Deferred Rent
Period"). It is agreed that the Rent payable under this Lease is allocable
to, and shall be accrued by the parties during, their fiscal periods in which
the same is actually paid. Landlord and Tenant agree that no portion of the
Minimum Rent paid by Tenant during the Initial Term occurring after the
expiration of the Deferred Rent Period will be allocated by Landlord or
Tenant to such Deferred Rent Period, nor is such Rent intended by the parties
to be allocable to the Deferred Rent Period. If for any reason at any time
during the Term Tenant is in default hereunder, which default is not cured
within any applicable cure periods, Tenant shall owe to Landlord, in addition
to all other amounts otherwise set forth herein, all amounts of Minimum Rent
deferred pursuant to this Section. Such amounts shall be immediately due and
payable upon the occurrence of any such default. Tenant shall have no
obligation to pay such amounts if no Event of Default has occurred prior to
the expiration of the Term.
5. COMPLETION OR REMODELING OF THE PREMISES.
5.1 Landlord shall, at Landlord's cost and expense, prior to
February 1, 2000, paint all currently painted walls of the Premises with
Building standard paint with the same color that currently exists, shampoo
all existing carpet, and demise the Premises (including separating electric
and HVAC systems) (collectively, the "Finish Work"). "Initial Tenant Finish"
means the Premises in its as-is condition as modified by all work, if any,
performed by Landlord at its expense prior to the Commencement Date in
accordance herewith. Except as provided herein, Landlord has no obligation
for the completion or remodeling of the Premises, and ▇▇▇▇▇▇ accepts the
Premises in its "as is" condition on the Commencement Date. The Initial Lease
Term shall commence on February 1, 2000, regardless if the Finish Work is
completed.
5.2 Taking possession of the Premises by ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ has agreed to perform.
6. OPERATING EXPENSES/REAL ESTATE TAXES. Tenant shall pay Operating
Expense Rent and Tax Rent as additional Rent hereunder in accordance with the
following:
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 Section. 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) "Base Real Estate Taxes" means an amount equal to the Real
Estate Taxes for the calendar year set forth in Section.1.5, as determined by
Landlord in accordance with this Section. Tenant acknowledges Landlord has
not made any representations or warranties that the Base Real Estate Taxes
will equal any specified amounts (any estimates provided by Landlord are
non-binding estimates only).
(3) "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 ▇▇▇▇▇▇▇▇'s Accountants unless otherwise
stated.
(4) "Tenant's Pro Rata Share" means the percentage set forth in
Section 1.5.
(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, but are not
limited to, the following:
(a) Costs of supplies, including costs of relamping
and replacing ballasts in all Building standard tenant lighting;
(b) 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;
(c) Costs of water and sanitary and storm drainage
services;
3
(d) Costs of janitorial and security services;
(e) 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;
(f) Costs of maintenance, repair and replacement of
landscaping;
(g) 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;
(h) 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;
(i) Professional building management fees, costs and
expenses, including costs of office space and storage space required by
management for performance of its services;
(j) 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);
(k) 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 ▇▇▇▇▇▇▇▇'s Accountants); however, the amortized amount of any Cost Savings
Improvement will be limited in any year to the resulting reduction in
Operating Expenses; and
(l) 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 whose leases
contain a rental adjustment provision similar to this one;
(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; or
(vi) Depreciation on the Building Complex.
(7)"Real Estate Taxes" means all real and personal property
taxes and assessments levied against the Building Complex by any governmental
or quasi-governmental authority, including taxes, 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 Real Estate Taxes. Real Estate 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
4
number of installments permitted by law, whether or not actually so paid, and
include any applicable interest on such installments. Real Estate 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;
(8) "Tax Year" means each calendar year during the Term,
except that the first Tax Year begins on the Commencement Date and ends on
December 31 of such year and the last Tax 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 a Tax Year is less than twelve
(12) months, Real Estate Taxes for such year shall be prorated.
6.2 COMPUTATION AND PAYMENT OF OPERATING EXPENSE RENT.
6.2.1 If the actual Operating Expenses payable by Landlord for
any 0perating Expense Year exceed the Base Operating Expenses ("Excess
Operating Expenses"), Tenant shall pay its Pro Rata Share of the Excess
Operating Expenses ("Operating Expense Rent") to Landlord as provided herein.
Following the end of each Operating Expense Year, Landlord shall submit a
statement ("Operating Expense Statement") to Tenant setting forth the
following:
(1) The total Operating Expense Rent payable by Tenant for the
just completed Operating Expense Year;
(2) The total amount Tenant has paid as Estimated Operating
Expense Rent (hereafter defined) during the just completed
Operating Expense Year;
(3) The difference, if any, between the total Operating Expense
Rent set forth in item (1) above and the Estimated
Operating Expense Rent previously paid as set forth in
item (2) above ("Operating Expense Rent Shortfall");
(4) Tenant's Pro Rata Share of Landlord's estimate of Excess
Operating Expenses for the new Operating Expense Year
("Estimated Operating Expense Rent") determined in
accordance with this Paragraph; and
(5) The amount of the Retroactive Adjustment, if any, in
accordance with the following.
6.2.2 Commencing on the Commencement Date, Tenant shall pay,
at the same time as monthly Minimum Rent is paid, 1/12 of the Estimated
Operating Expense Rent. To the extent an Operating Expense Statement reflects
an Operating Expense Rent Shortfall Tenant will pay such shortfall within 30
days after receipt of the Operating Expense Statement (or receive a credit
for the difference against the next due Rent, as the case may be). Until
Tenant receives an Operating Expense Statement, Tenant shall continue to pay
the Estimated Operating Expense Rent for the prior Operating Expense Year.
However, Tenant is responsible for payment (or is eligible for a credit, as
the case may be) of any difference between the old Estimated Operating
Expense Rent paid for any period of the new Operating Expense Year and the
new Estimated Operating Expense Rent payable for that same period
("Retroactive Adjustment"). Tenant shall commence payment of the new
Estimated Operating Expense Rent beginning on the first day of the month
following the month in which ▇▇▇▇▇▇ receives the Operating Expense Statement,
at which time the Tenant shall also pay Landlord or deduct from the next-due
Rent, as the case may be, the Retroactive Adjustment. If, during any
Operating Expense Year, there is a change in the information on which
▇▇▇▇▇▇'s Estimated Operating Expense Rent is based so that the prior estimate
is no longer accurate, Landlord may revise the estimate and there shall be a
corresponding adjustment to the Estimated Operating Expense Rent for the
balance of the Operating Expense Year following notice to Tenant.
6.3 COMPUTATION AND PAYMENT OF TAX RENT.
6.3.1 If the actual Real Estate Taxes payable by Landlord for
any Tax Year exceed the Base Real Estate Taxes ("Excess Taxes"), Tenant shall
pay its Pro Rata Share of the Excess Taxes ("Tax Rent") to Landlord as
provided herein. Following the end of each Tax Year, Landlord shall submit a
statement ("Tax Statement") to Tenant setting forth the following:
(1) The total Tax Rent payable by Tenant for the just
completed Tax Year;
(2) The amount Tenant has paid as Estimated Tax Pent
(hereafter defined) during the just completed Tax
Year;
(3) The difference, if any, between the total Tax Rent
set forth in item (1) above and the Estimated Tax
Rent previously paid as set forth in item (2) above
("Tax Rent Shortfall");
(4) Tenant's Pro Rata Share of Landlord's estimate of
Excess Taxes for the new Tax Year ("Estimated Tax
Rent") determined in accordance with this Paragraph;
and
(5) The amount of the Retroactive Adjustment, if any, in
accordance with the following.
6.3.2 Commencing with the first month of the second Tax Year,
Tenant shall pay, at the same time as monthly Minimum Rent is paid, 1/12 of
the Estimated Tax Rent. To the extent a Tax Statement reflects a Tax Rent
Shortfall, Tenant will pay such shortfall within 30 days after receipt of the
Tax Statement (or receive a credit for the difference against the next due
Rent, as the case may be). Until Tenant receives a Tax Statement, Tenant
shall continue to pay the Estimated Tax Rent for the prior Tax Year. However,
Tenant is responsible for payment (or is eligible for a credit, as the case
may be) of any difference between the old Estimated Tax Rent paid for any
period of the new Tax Year and the new Estimated Tax Rent payable for that
same period ("Retroactive Adjustment"). Tenant shall commence payment of the
new Estimated Tax
5
Rent beginning on the first day of the month following the month in which
▇▇▇▇▇▇ receives the Tax Statement, at which time the Tenant shall also pay
Landlord or deduct from the next-due Rent, as the case may be, the
Retroactive Adjustment. If, during any Tax Year, there is a change in the
information on which ▇▇▇▇▇▇'s Estimated Tax Rent is based so that the prior
estimate is no longer accurate, Landlord may revise the estimate and there
shall be a corresponding adjustment to the Estimated Tax Rent for the balance
of the Tax Year following notice to Tenant.
6.4 MISCELLANEOUS. 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 or Real Estate Taxes
with respect to its leased premises, ▇▇▇▇▇▇▇▇'s Accountants may modify the
computation of Base Operating Expenses, Base Real Estate Taxes, Tenant's Pro
Rata Share, Operating Expenses and Real Estate Taxes for a particular
Operating Expense Year and/or Tax Year (as applicable) to eliminate or modify
any Operating Expenses and/or Real Estate Taxes which are paid for in whole
or in part by such tenant. If the Building is not fully occupied during any
particular Operating Expense Year or Tax Year, ▇▇▇▇▇▇▇▇'s Accountants may
adjust those Operating Expenses and Real Estate Taxes which are affected by
occupancy for the particular Operating Expense Year or Tax Year to reflect
100% occupancy. Furthermore, in making any computations contemplated hereby,
▇▇▇▇▇▇▇▇'s Accountants may make such other modifications to the computations
as are required in their judgment to achieve the intention of the parties
hereto. In no event will any decrease in Rent pursuant to any provision
hereof result in a reduction of Rent below the Minimum Rent. Delay by
Landlord in submitting any statement for any Operating Expense Year or Tax
Year does not affect the provisions of this Section or constitute a waiver of
Landlord's rights for such Operating Expense Year, Tax Year, or any
subsequent Operating Expense Years or Tax Years.
6.5 DISPUTE. If Tenant disputes an adjustment submitted by Landlord
or a proposed increase or decrease in an Estimated Operating Expense Rent or
Estimated Tax Rent, Tenant shall give Landlord notice of such dispute within
30 days after ▇▇▇▇▇▇'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, at its expense, 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 ▇▇▇▇▇▇'s Accountants determine that an
error has been made, ▇▇▇▇▇▇▇▇'s Accountants and ▇▇▇▇▇▇'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 ▇▇▇▇▇▇'s reasonable approval, for a determination which will be
conclusive and binding upon Landlord and Tenant. Tenant agrees that all
information obtained or generated in connection with such audit shall be kept
confidential and may not be disclosed to any other tenants or third parties.
Notwithstanding the pendency of any dispute, Tenant shall continue to pay
Landlord the amount of the Estimated Operating Expense Rent or Estimated Tax
Rent being disputed or adjustment determined by ▇▇▇▇▇▇▇▇'s Accountants until
the adjustment has been determined to be incorrect. If it is determined that
any portion of the Operating Expenses and/or Real Estate Taxes were not
properly chargeable to Tenant, then Landlord shall promptly credit or refund
the appropriate sum to Tenant.
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: (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 Initial Tenant Finish (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 ▇▇▇▇▇/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, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, 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 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 ▇▇▇▇▇▇▇▇'s engineer, based
on his engineering survey of ▇▇▇▇▇▇'s Excess Usage. Tenant shall also
reimburse Landlord for all costs of supplementing the Building HVAC System
and/or extending or supplementing any electrical service,
6
as Landlord determines is necessary, as a result of ▇▇▇▇▇▇'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 48 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 that 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 ▇▇▇▇▇▇▇▇ 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.
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 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 full
performance of this Lease by ▇▇▇▇▇▇. 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. ▇▇▇▇▇▇ 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. 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇'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. 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; and (ii) provide upkeep, maintenance, and
repairs to all Common Areas. 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 Landlord or ▇▇▇▇▇▇▇▇'s agents may at any time enter the
Premises for examination and inspection, if Landlord elects, to perform any
obligations of Tenant which Tenant fails to perform, to perform 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. Landlord or Landlord's agents may also show the
Premises to prospective tenants, purchasers and Mortgagees. Any such reentry
does not constitute an eviction or entitle Tenant to abatement of Rent.
Landlord may make such alterations or changes in other
7
portions of the Building Complex as Landlord desires so long as such
alterations and changes do not unreasonably interfere with ▇▇▇▇▇▇'s occupancy
of 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.
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. 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 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 Initial
Tenant Finish. All Alterations, repair and maintenance work performed by
Tenant shall be done at Tenant's expense by ▇▇▇▇▇▇▇▇'s employees or, with
▇▇▇▇▇▇▇▇'s prior consent and subject to any conditions imposed by ▇▇▇▇▇▇▇▇,
by other persons requested by ▇▇▇▇▇▇; however, if such work is not performed
by ▇▇▇▇▇▇▇▇'s employees, Tenant shall pay Landlord a 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 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. ▇▇▇▇▇▇▇▇
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.
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 attached to the Building), 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.
13. MECHANICS' LIENS. Tenant shall pay for all work done on the Premises
by Tenant or at its request (other than the Initial Tenant Finish) 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 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 the Denver metropolitan area (including the
Building Complex); and (8) the rent to be paid by the Transferee is not less
than the Rent paid by Tenant for such space
8
and is not less than 85% of the rental rate then being offered by Landlord
for similar space in the Building. 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, 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
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 ▇▇▇▇▇▇'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.
14.4 Tenant must notify Landlord at least 90 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, 60 days following receipt of
Tenant's Notice to sublet the space on Tenant's behalf or to exercise its
rights pursuant to Section 14.3 if ▇▇▇▇▇▇'s Notice discloses that 25% or more
of the Premises is involved. If the space covered by ▇▇▇▇▇▇'s Notice is
subleased by Landlord, rent and other sums due from the subtenant will be
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 ▇▇▇▇▇▇▇▇'s consent as set forth above. If Tenant
does not sublet such portion of the Premises within 60 days following
▇▇▇▇▇▇▇▇'s notice to 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 approval by ▇▇▇▇▇▇▇▇. Tenant shall pay Landlord's 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 ▇▇▇▇▇▇'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 Minimum 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.
16. INDEMNITY TO LANDLORD.
16.1 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'s
Agents.
9
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.
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,
▇▇▇▇▇▇ 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 casualty 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.
18.2 Tenant shall maintain throughout the Term "all risk" or
"multi-peril" insurance for the full replacement cost of Tenant's property
and betterments in the Premises, including tenant finish in excess of the
Initial Tenant Finish.
18.3 If the Building is damaged by fire or other casualty which
renders the Premises wholly untenantable 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 occupancy 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 tenantable 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 untenantable 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 Initial Tenant Finish.
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, or for loss of business arising out of
or related the use and occupancy of the Premises which is capable of being
insured against under all risk or multi-peril insurance, including coverage
for damage due to water leakage. 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 ▇▇▇▇▇ during any period of repair and restoration to
the extent of any recovery by Landlord under its loss of rent insurance
related to the Premises in the same proportion that the part of the Premises
rendered untenantable bears to the whole.
19. CONDEMNATION. If the Premises or substantially all of it or any
portion of the Building Complex which renders the Premises untenantable 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 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 less than all the Premises is taken, 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.
Landlord shall receive the entire award or consideration for the taking.
10
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 3 days after the due date;
(2) Tenant vacates or abandons the Premises;
(3) This Lease or ▇▇▇▇▇▇'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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ (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 on the
Commencement Date;
(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, ▇▇▇▇▇▇'s right to cure
shall not exceed the period provided by Applicable Law.
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. 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. 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 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").
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 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, ▇▇▇▇▇▇'s right to possession of the
Premises shall cease and the Lease will terminate except as to Tenant's
liability as hereafter provided
11
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.
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 RECAPTURE OF RENT CONCESSIONS AND TENANT IMPROVEMENT
ALLOWANCES. In the Event of Default by Tenant, in addition to all other
rights and remedies, Landlord shall be entitled to receive from Tenant all
sums, the payment of which may previously have been waived or abated by
Landlord, or which may have been paid by Landlord pursuant to any agreement
to grant Tenant a rental abatement or other monetary inducement or
concession, including but not limited to any tenant improvement or finish
allowance or moving allowance, together with interest thereon from the date
or dates such amounts were paid by Landlord or would have been due from
Tenant but for the abatement, at the rate of eighteen percent (18%) per
annum, until paid; it being understood and agreed that such concession or
abatement was made on the condition and basis that Tenant fully perform all
obligations and covenants under the Lease for the entire term.
20.4 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 from 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.
20.5 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.
20.6 BANKRUPTCY. Nothing contained in this Lease limits ▇▇▇▇▇▇▇▇'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.
20.7 LATE PAYMENT CHARGE. Any Rent not paid within 3 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 3 days after the due date,
▇▇▇▇▇▇ 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 3
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
▇▇▇▇▇ Fargo Bank, N.A., or its successor, as its prime rate on the date
closest to the date interest commences.
20.8 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). ▇▇▇▇▇▇'s sole remedy will be equitable relief
or actual damages but in no event
12
is Landlord or any Mortgagee responsible for consequential damages or lost
profit incurred by ▇▇▇▇▇▇ as a result of any default by Landlord.
22. SUBORDINATION AND ATTORNMENT.
22.1 This Lease 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"), unless
Landlord or Mortgagee advises Tenant that it will not be subordinate. ▇▇▇▇▇▇
agrees that no documentation other than this Lease is required to evidence
such subordination.
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 or the date of recording thereof.
22.3 In confirmation of subordination or superior position, as the
case may be, ▇▇▇▇▇▇ will execute such documents as may be required by
Mortgagee and, if it fails to do so within 10 days after demand, Tenant
hereby irrevocably appoints Landlord as ▇▇▇▇▇▇'s attorney-in-fact in Tenant's
name, place, and stead to do so.
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.
22.5 If it becomes necessary to foreclose the Mortgage, Mortgagee
shall neither terminate the Lease nor join Tenant in summary or foreclosure
proceedings so long as Tenant is not in default under any of the terms,
covenants, or conditions of the Lease. If Mortgagee succeeds to the interest
of Landlord under the Lease, Mortgagee shall not be: (a) liable for any act
or omission of any prior landlord (including Landlord); (b) liable for the
return of any security deposit unless such deposit has been delivered to the
Mortgagee by Landlord or is in an escrow fund available to Mortgagee; (c)
subject to any offsets or defenses that Tenant might have against any prior
landlord (including Landlord); (d) bound by any Rent or additional Rent that
Tenant might have paid for more than the current month to any prior landlord
(including Landlord); (e) personally liable under the Lease, Mortgagee's
liability thereunder being limited to its interest in the Real Property; or
(f) bound by any notice of termination given by Landlord to Tenant without
Mortgagee's prior written consent thereto.
22.6 Tenant acknowledges that a current Mortgagee requires that Rent
payable to Landlord under this Lease be paid directly by Tenant to Mortgagee
upon a default by Landlord under the Mortgage. After receipt of notice from
Mortgagee to Tenant, at the address set forth above (or at such other address
of which Mortgagee has been notified in writing), Tenant shall pay to
Mortgagee all monies due or to become due to Landlord under the Lease. Tenant
shall have no responsibility to ascertain whether such demand by Mortgagee is
permitted under the Mortgage, or to inquire into the existence of a default.
Landlord hereby waives any right, claim, or demand it may now or hereafter
have against Tenant by reason of such payment to Mortgagee, and any such
payment shall discharge the obligations of Tenant to make such payment to
Landlord.
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.
23.2 Subject to any purchase money security interests granted by
▇▇▇▇▇▇, Tenant conveys to Landlord all of Tenant's property at any time
situated on the Premises (and all replacements) as security for the
performance of its obligations; Tenant shall execute such documents as
Landlord requires to evidence and perfect Landlord's security interest, and
for this purpose this Lease is considered a security agreement covering such
personal property. Upon the occurrence of an Event of Default, Landlord may
exercise all rights of a secured party under the Colorado Uniform Commercial
Code. Such security interest is prior and superior to any other security
interest except a purchase money security interest. Tenant's property shall
not be removed from the Premises without Landlord's consent unless such
property is replaced with an item of equal or greater value.
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 200% 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
13
affects any notice given to Tenant prior to such payments. After notice,
commencement of a suit, or final judgment granting 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. ▇▇▇▇▇▇ agrees at any time upon not less
than 10 days' notice to execute and deliver to Landlord 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 Landlord requests. Such statement may be relied upon by a
prospective purchaser of Landlord's interest or Mortgagee. Tenant's failure
to timely deliver such statement is conclusive upon Tenant that: (i) this
Lease is in full force and effect without modification except as may be
represented by Landlord; (ii) there are no uncured defaults in Landlord's
performance; and (iii) not more than 1 month's Rent has been paid in advance.
Upon request, Tenant will furnish Landlord 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. Any funds in Landlord's possession at the time of transfer
in which ▇▇▇▇▇▇ has an interest 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.
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 falls to perform its obligations; provided, however, the foregoing
does not impair ▇▇▇▇▇▇'s right to commence a separate suit against Landlord
for any default by Landlord so long as Tenant complies with Section 21.
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 ▇▇▇▇▇▇▇▇'s and ▇▇▇▇▇▇'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, similar document, or opinion of counsel 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 ▇▇▇▇▇▇▇▇ 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.
14
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. If
additional buildings are constructed or the size is increased, Landlord and
Tenant shall execute an amendment which incorporates any necessary
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 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 ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ agrees that Tenant and
▇▇▇▇▇▇'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, ▇▇▇▇▇▇▇▇ 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 provided in Section 1.10. All notices or
communications required or desired to 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 as
provided 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 parking spaces up to Tenant's
Maximum set forth in Section 1.9, if any, for Tenant's use during the term
hereof. Tenant shall notify Landlord on or before the Commencement Date of
the number of parking spaces up to Tenant's Maximum it will initially require
and, thereafter, Tenant shall give Landlord written notice at least 30 days
prior to the date that Tenant shall require the use of any parking spaces in
addition to those initially accepted, the total of which shall not exceed
▇▇▇▇▇▇'s Maximum. Tenant shall pay the monthly rate in effect for each
parking space utilized as such rate may change from time to time. The monthly
parking rates are currently as follows: $65.00 for an assigned reserved
space, $40 for an unassigned covered space, and $20 for an unassigned deck
(uncovered) space. Landlord reserves the right to determine the type of
parking spaces allocated for Tenant's use. Tenant will receive one monthly
bill for all spaces taken which shall be paid in the same manner and at the
same place as Minimum Rent for the Premises. Tenant has no rights to use
parking spaces except as provided in this Section. The right granted to
Tenant to use any space is a license only and Landlord's inability to make
any space available at any time for reasons beyond Landlord's reasonable
control is not a material breach by Landlord of its obligations hereunder.
The abatement of Tenant's obligation to pay for
15
unavailable spaces during any period of unavailability constitutes Tenant's
sole remedy. If Tenant fails to timely pay a parking bill, in addition to
being a default under the Lease, Tenant may, at Landlord's option, forfeit
its right to all parking spaces. All vehicles parked in the parking garage
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.
30. SUBSTITUTE PREMISES. ▇▇▇▇▇▇▇▇ has the right at any time upon 30
days' prior notice to Tenant to substitute other space within the Building,
including substantiality comparable tenant finish, for the Premises (the
"Substitute Premises"). Tenant shall relocate to the Substitute Premises on
the date specified in Landlord's notice which will be no sooner than 30 days
after notice. Landlord will pay all reasonable expenses incurred by Tenant to
move its furniture, fixtures, and equipment to the Substitute Premises. The
suite number designation and Exhibit A shall be deemed revised to reflect the
description of the Substitute Premises. Except for such revisions, the
provisions of this Lease are applicable to the Substitute Premises which are
the Premises following ▇▇▇▇▇▇'s move.
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 shall indemnify Landlord against any expense incurred
by Landlord as a result of any claim for commissions or fees by any other
broker, finder, or agent, whether or not meritorious, employed by Tenant or
claiming by, through, or under ▇▇▇▇▇▇, 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. LEGAL FEES; PREPARATION OF LEASE. Tenant acknowledges that if
Landlord incurs legal fees in connection with the preparation and negotiation
of this Lease in excess of $4,107.50, the amount of such excess shall, at
Landlord's option, be payable to Landlord as a one-time payment of additional
Rent promptly upon the final determination of Landlord's legal fees.
33. 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 another counterpart of the Lease to form a completely executed
original instrument without impairing the legal effect of the signature
thereon.
34. ADDENDUM/EXHIBITS. Any Addenda or Exhibits referred to herein are
attached hereto and incorporated herein by reference.
35. OPTION TO EXTEND. Landlord grants Tenant an option (the "Option") to
extend the term of the Lease for one (1) 1 additional term of two (2) years
(the "Option Term"). The Option applies only to the Premises and is on the
following conditions:
35.1 Notice of ▇▇▇▇▇▇'s interest in exercising the Option must be
given to Landlord no earlier than 12 months and no later than 6 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 Minimum
Rent applicable during the Option Term in accordance with subsection 35.5
below ("Landlord's Notice").
35.2 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.
35.3 Unless Landlord is timely notified by Tenant in accordance with
subparagraphs 35.1 and 35.2 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.
35.4 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; (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; and (iii) Tenant having the
financial ability to perform its obligations under the Option Term. Upon an
assignment of the Lease, this Paragraph is null and void.
35.5 The Option granted hereunder will be upon the terms of the
Lease, except that the Minimum Rent during the Option Term will be the rate
at which Landlord would lease space in the Building comparable to the
Premises to third parties if such space were available for leasing for a
lease term paralleling the Option Term, but in no event will the Minimum Rent
be less than the Rent in effect immediately prior to commencement of the
Option Term. Such Rent may include escalations and pass-throughs.
35.6 After exercise, or failure to exercise the Option, Tenant shall
have no further rights to extend the Term.
16
36. COMMON AREA REMODEL. ▇▇▇▇▇▇▇▇ agrees to use reasonable efforts to
remodel the eleventh floor common area and to complete such remodeling six
(6) months following mutual execution of this Lease.
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.
TELECOM WIRELESS CORPORATION, a Utah PRENTICE POINT LIMITED PARTNERSHIP, a
corporation Delaware limited partnership
By: PRENTICE POINT, INC., General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------- -------------------------------------
Print Title: President ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
------------------------
"Landlord"
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Print Title: Counsel
------------------------
"Tenant"
17
EXHIBIT A TO LEASE
DIAGRAM OF PREMISES
(Diagram of leased area)
EXHIBIT B TO LEASE
REAL PROPERTY
PARCEL 1:
That part of Lot 3, Block 2, A RESUBDIVISION OF BLOCK 6, DENVER TECHNOLOGICAL
CENTER FILING NO. 2, described as follows:
Beginning at the Northeast ▇▇▇▇▇ of said Block 2;
thence Southerly along the Easterly line of said Block 2, the same being the
Westerly line of South Wabash Street, a distance of 437.78 feet to a point of
curvature; thence along a curve to the right with a radius of 75.00 feet and a
central angle of 2DEG. 59'53" an arc distance of 3.92 feet; thence along a
curve to the right whose tangent makes an angle to the right of 26DEG. 06'30"
from the tangent of the preceding curve and having a radius of 80.00 feet and a
central angle of 77DEG. 04'05" an arc distance of 107.61 feet to a point of
tangency; thence along the tangent to the aforesaid curve 141.62 feet; thence at
a deflection angle of 14DEG. 28'39" to the left 120.00 feet to a point on the
Northeasterly line of East Prentice Avenue; thence Northwesterly along said
Northeasterly line at East Prentice a distance of 32.60 feet; thence
Northeasterly at an angle of 88DEG. 18'38" to the right a distance of 438.06
feet to the North line of said Block 2; thence Easterly at an angle of
74DEG. 47'33" to the right and along said North line, a distance of 270.00
feet to the point of beginning,
County of Arapahoe,
State of Colorado.
PARCEL 2:
That part of Lot 3, Block 2, A RESUBDIVISION OF BLOCK 6, DENVER TECHNOLOGICAL
CENTER FILING NO. 2, described as follows:
Commencing at the Northeast corner of said Block 2;
thence Westerly along the North line of said Block 2, a distance of 270.00 feet
to the TRUE POINT OF BEGINNING; thence continuing along said North line of Block
2, a distance of 98.43 feet; thence Southwesterly at a deflection angle of
89DEG. 16'39" to the left 203.35 feet; thence on an angle to the left of
90DEG. 00'00", a distance of 45.57 feet; thence on an angle to the left of
75DEG. 30'54", a distance of 211.31 feet to the TRUE POINT OF BEGINNING,
County of Arapahoe, State of Colorado.
PARCEL 3:
An easement for ingress and egress granted in First Amended and Restated Cross
Easement Agreement by and between The Dow Chemical Company and Prentice Point,
Ltd. recorded September 8, 1989, in Book 5769, at Page 19, County of Arapahoe,
State of Colorado.
PARCEL 4:
A license to construct, operate, maintain, repair and replace a concrete
courtyard across the City of Aurora's Rampart Waterline Easement, as granted by
the City of Aurora, Colorado, pursuant to a License Agreement dated August 16,
1985 and recorded September 10, 1985 in Book 4541 at page 336, as assigned to
Prentice Point Associates, L.P., a California limited partnership by Assignment
thereof recorded June 3, 1994 in Book 7581 at Page 122, as assigned to Prentice
Point Limited Partnership, a Delaware limited partnership, by Assignment thereof
recorded January 1, 1997, at Reception No. R7003471.
County of Arapahoe,
State of Colorado.
EXHIBIT C
PREMISES COMPLETION
[Intentionally Deleted]
EXHIBIT D TO LEASE
FORM OF FIRST AMENDMENT TO LEASE
[Intentionally Deleted]
EXHIBIT E TO LEASE
RULES AND REGULATIONS
The following rules and regulations have been formulated for the safety
and well-being of all tenants of the Building and to insure compliance with
governmental and other requirements. Strict adherence to these rules and
regulations is necessary to guarantee that each and every tenant will enjoy a
safe and undisturbed occupancy of its premises in the Building. Any
continuing violation of these rules and regulations by Tenant shall
constitute a default by Tenant under the Lease.
Landlord may, upon request of any tenant, waive the compliance by such
tenant of any of the following rules and regulations, provided that (i) no
waiver shall be effective unless signed by Landlord's authorized agent, (ii)
any such waiver shall not relieve such tenant from the obligation to comply
with such rule or regulation in the future unless otherwise agreed to by
Landlord, (iii) no waiver granted to any tenant shall relieve any other
tenant from the obligation of complying with these rules and regulations,
unless such other tenant has received a similar written waiver from Landlord,
and (iv) any such waiver shall not relieve such tenant from any liability to
Landlord for any loss or damage occasioned as a result of such tenant's
failure to comply.
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors, roof, halls and other parts of the Building not
exclusively occupied by any tenant shall not be obstructed or encumbered by
any tenant or used for any purpose other than ingress and egress to and from
each tenant's premises. Landlord shall have the right to control and operate
the public portions of the Building, and the facilities furnished for common
use of the tenants, in such manner as Landlord deems best for the benefit of
the tenants generally. No tenant shall permit the visit to its premises of
persons in such numbers or under such conditions as to interfere with the use
and enjoyment of the entrances, corridors, elevators and other public
portions or facilities of the Building by other tenants.
2. No awnings or other projections shall be attached to the outside
walls of the Building without the prior written consent of Landlord. No
drapes, blinds, shades or screens shall be attached to or hung in, or used in
connection with, any window or door of the Premises, without the prior
written consent of Landlord. All awnings, projections, curtains, blinds,
shades, screens and other fixtures must be of a quality, type, design and
color, and attached in the manner approved by Landlord.
3. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building or any tenant's premises, nor placed
in the halls, corridors or vestibules without the prior written consent of
Landlord.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed, and
no debris, rubbish, rags or other substances shall be thrown therein. All
damage resulting from any misuse of the fixtures shall be borne by the tenant
who, or whose servants, employees, agents, visitors or licensees, shall have
caused the same.
5. There shall be no marking, painting, drilling into or defacement of
the Building, or any part of any tenant's premises that is visible from
public areas of the Building. Tenants shall not construct, maintain, use or
operate within their respective premises any electrical device, wiring or
apparatus in connection with a loud speaker system or other sound system,
except as reasonably required as part of a communication system approved
prior to the installation thereof by Landlord. No such loud speaker or sound
system shall be constructed, maintained, used or operated outside the
premises of any tenant.
6. No bicycles or vehicles and no animals, birds or pets of any kind
shall be brought into or kept in or about the Building or any tenant's
premises, except that this rule shall not prohibit the parking of bicycles or
vehicles in areas specifically designated therefor by Landlord. No cooking or
heating of food shall be done or permitted by any tenant on its premises
except for food prepared in portable microwave ovens (provided that no odors
are emitted such as in the preparation of popcorn). No tenant shall cause or
permit any unusual or objectionable odors to be produced upon or permeate
from its premises.
7. No space in the Building shall be used for the manufacture of goods
for sale in the ordinary course of business, or for the sale at auction of
merchandise, goods or property of any kind. Furthermore, the use of its
premises by any tenant shall not be changed without the prior approval of
Landlord.
8. No tenant shall make any unseemly or disturbing noises or disturb or
interfere with the occupants of the Building or neighboring buildings or
premises or those having business with them, whether by the use of any
musical instrument, radio, talking machine, whistling, singing or in any
other way. No tenant shall throw anything out of the doors or windows or into
or down the corridors or stairs of the Building.
9. No flammable, combustible or explosive fluid, chemical or substance
shall be brought into or kept upon the Premises.
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10. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in any
existing locks or the locking mechanism therein, without Landlord's approval.
The doors leading to the corridors or main halls shall be kept closed during
business hours except as they may be used for ingress or egress. Each tenant
shall, upon the termination of its tenancy, restore to Landlord all keys of
stores, offices, storage and toilet rooms either furnished to, or otherwise
procured by, such tenant, and in the event of the loss of any keys so
furnished, such tenant shall pay to Landlord the replacement cost thereof.
Tenant's key system shall be separate from that for the rest of the Building.
11. 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 of the Lease.
12. ▇▇▇▇▇▇▇▇ reserves the right to exclude from the Building at all
times any person who is not known or does not properly identify himself or
herself to the Building management or watchman, if any, on duty. Landlord
may, at its option, require all persons admitted to or leaving the Building
between the hours of 6:00 p.m. and 7:00 a.m., Monday through Friday, and at
any hour on Saturdays, Sundays and legal holidays, to register. Each tenant
shall be responsible for all persons for whom it authorizes entry in the
Building, and shall be liable to Landlord for all acts or omissions of such
persons.
13. The Premises shall not, at any time, be used for lodging or
sleeping, or for any immoral or illegal purposes.
14. Tenant assumes full responsibility for protecting the Premises from
theft, and each tenant, before closing and leaving the Premises at any time,
shall see that all doors and windows are closed and locked, and all lights
turned off.
15. Landlord's employees shall not perform any work or do anything
outside of their regular duties, unless under special instruction from the
management of the Building. The requirements of tenants will be attended to
only upon application to Landlord, and any such special requirements shall be
billed to Tenant (and paid when the next installment of rent is due) in
accordance with the schedule of charges maintained by Landlord from time to
time or at such charge as is agreed upon in advance by Landlord and Tenant.
16. Canvassing, soliciting and peddling in the Building and on the
Property are prohibited and each tenant shall cooperate to prevent the same.
Peddlers, solicitors and beggars shall be reported to the Building manager or
as Landlord otherwise requests.
17. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards. Tenant shall be responsible to Landlord for any loss
or damage resulting from any deliveries made by or for Tenant to the Building.
18. Mats, trash or other objects shall not be placed in the public
corridors of the Building.
19. Landlord does not maintain suite finishes which are non-standard,
such as kitchens, bathrooms, wallpaper, special lights, etc. However, should
the need arise for repairs of items not maintained by Landlord, ▇▇▇▇▇▇▇▇ will
arrange for the work to be done at ▇▇▇▇▇▇'s expense.
20. Drapes installed by Landlord for the use of Tenant or drapes
installed by Tenant, with Landlord's approval, which are visible from the
exterior of the Building, must be cleaned by Tenant at least once a year,
without notice, at the tenant's own expense.
21. The Building directory located in the Building lobby as provided by
Landlord shall be available to Tenant solely to display its name and location
in the Building, which display shall be as directed by Landlord.
22. Tenant shall not cause any unnecessary janitorial labor or services
by reason of Tenant's carelessness or indifference in the preservation of
good order and cleanliness.
23. Tenant shall not install linoleum, tile, carpet or other floor
covering so that the same shall be affixed to the floor of the Premises in
any manner except as approved by Landlord.
24. No furniture, packages, supplies, equipment or merchandise will be
received in the Building or carried up or down in the elevators, except
between such hours and in such elevators and under such other conditions as
shall be designated by Landlord.
25. Tenant shall not waste heat or air conditioning and shall cooperate
fully with Landlord to assure the most effective operation of the Building's
heating and air-conditioning, and shall refrain from attempting to adjust any
controls other than room thermostats installed for ▇▇▇▇▇▇'s use.
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26. Landlord shall have sole power and discretion to control the
quantity, size, location, and design of all tenant identification signage. No
such signage shall be erected without ▇▇▇▇▇▇▇▇'s written consent.
27. The loading dock area is exclusively reserved for authorized traffic
and Tenant shall not use same for temporary parking,
28. No eating, drinking, sleeping, or loitering shall be permitted in
the lobby areas.
29. Landlord may from time to time alter or amend these Rules and
Regulations, and Tenant shall comply with the Amended Rules and Regulations.
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