DENVER PLACE SOUTH TOWER
AGREEMENT OF LEASE
BETWEEN
DENVER PLACE ASSOCIATES LIMITED PARTNERSHIP, LANDLORD
AND
JATO COMMUNICATIONS CORP., TENANT
DENVER PLACE SOUTH TOWER
AGREEMENT OF LEASE
BETWEEN
DENVER PLACE ASSOCIATES LIMITED PARTNERSHIP, LANDLORD
AND
JATO COMMUNICATIONS CORP., TENANT
TABLE OF CONTENTS
Page
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1. TERM ............................................................ 1
2. BASE RENT ....................................................... 1
3. IMPROVEMENTS .................................................... 1
4. ADDITIONAL RENT ................................................. 2
(a) DEFINITIONS ................................................ 2
(b) PAYMENT OF ADDITIONAL RENT ................................. 3
(c) ADJUSTMENT FOR SERVICES NOT RENDERED ....................... 4
(d) PARTIAL YEAR ............................................... 4
(e) DISPUTES ................................................... 4
(f) PLACE OF PAYMENT ........................................... 4
(g) TENANT TAXES ............................................... 4
(h) DELAY IN COMPUTATION ....................................... 5
5. USE OF PREMISES ................................................. 5
6. CONDITION OF PREMISES ........................................... 5
7. SERVICES ........................................................ 6
(a) STANDARD SERVICES .......................................... 6
(b) ADDITIONAL SERVICES ........................................ 6
(c) INTERRUPTION OF SERVICES ................................... 8
8. ALTERATIONS ..................................................... 9
9. LIENS ........................................................... 9
10. INSURANCE AND WAIVER OF SUBROGATION ............................. 10
11. FIRE OR CASUALTY ................................................ 10
12. WAIVER OF CLAIMS -- INDEMNIFICATION ............................. 11
13. NONWAIVER ....................................................... 11
14. CONDEMNATION .................................................... 12
15. ASSIGNMENT AND SUBLETTING ....................................... 12
16. HOLDOVER ........................................................ 13
17. ESTOPPEL CERTIFICATE ............................................ 14
18. SUBORDINATION ................................................... 14
19. CERTAIN RIGHTS RESERVED BY LANDLORD ............................. 15
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20. RULES AND REGULATIONS .......................................... 16
21. REMEDIES ....................................................... 16
22. EXPENSES OF ENFORCEMENT ........................................ 18
23. COVENANT OF QUIET ENJOYMENT .................................... 18
24. SECURITY DEPOSIT ............................................... 18
25. REAL ESTATE BROKER ............................................. 18
26. MISCELLANEOUS .................................................. 18
(a) RIGHTS CUMULATIVE ......................................... 18
(b) CAPTIONS AND USAGE ........................................ 19
(c) BINDING EFFECT ............................................ 19
(d) LEASE CONTAINS ALL TERMS .................................. 19
(e) SUBMISSION OF LEASE ....................................... 19
(f) NO AIR RIGHTS ............................................. 19
(g) MODIFICATION OF LEASE ..................................... 19
(h) SUBSTITUTION OF OTHER PREMISES ............................ 19
(i) TRANSFER OF LANDLORD'S INTEREST ........................... 20
(j) RECORDING; SHORT FORM MEMO ................................ 20
(k) COVENANTS AND CONDITIONS .................................. 20
(l) APPLICATION OF PAYMENTS ................................... 20
(m) SECURITY INTEREST ......................................... 20
(n) GOVERNING LAW; PARTIAL INVALIDITY ......................... 20
(o) HAZARDOUS MATERIALS ....................................... 21
(p) WARRANTY DISCLAIMER ....................................... 21
(q) WAIVER OF TRIAL BY JURY ................................... 21
(r) FORCE MAJEURE ............................................. 21
(s) LIST OF EXHIBITS .......................................... 21
27. TELEPHONE AND TELECOMMUNICATIONS SERVICE ....................... 22
28. NOTICES ........................................................ 23
29. TIME IS OF THE ESSENCE ......................................... 23
Addendum
Exhibit A -- Premises
Exhibit B -- Rules and Regulations
Exhibit C -- Lease Term Agreement
Exhibit D -- Parking Agreement
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OFFICE LEASE
DENVER PLACE SOUTH TOWER
DENVER, COLORADO
AGREEMENT OF LEASE made as of the 29th day of September, 1999
(hereinafter referred to as the "Lease") between Amerimar Realty Management
Co.-Colorado, as agent for DENVER-STELLAR ASSOCIATES LIMITED PARTNERSHIP, a
Delaware limited partnership (hereinafter referred to as "Landlord") and JATO
COMMUNICATIONS CORP., a Delaware corporation, whose present address is 1099 -
18th Street, Suite _____, Xxxxxx, Xxxxxxxx 00000 (hereinafter referred to as
"Tenant").
W I T N E S S E T H
Landlord hereby leases to Tenant, and Tenant hereby accepts from
Landlord, subject to the covenants, terms, provisions and conditions of this
Lease, the premises (hereinafter referred to as the "Premises") containing
approximately 13,106 square feet of rentable area and designated on the plan
attached hereto as Exhibit "A" and further described as Suite 2600 the
building known as Denver Place (hereinafter referred to as the "Building")
located at 000 - 00xx Xxxxxx, Xxxxxx, Xxxxxxxx, 00000, which is situated on a
portion of real property being more particularly described as Lots 1 through
32 inclusive, Block 000, Xxxx Xxxxxx Xxxxxxxxxxx, Xxxx and County of Denver,
State of Colorado. The Building, the land upon which it is situated,
all surrounding improvements, any garage or other related improvements and all
common areas appurtenant to, associated with or servicing the Building are
hereinafter called the "Real Property" or the "Property".
In consideration thereof, Landlord and Tenant covenant and agree as
follows:
1. TERM. The term of this Lease (the "Term") shall commence on
December 1, 1999 (the "Commencement Date") and, unless sooner terminated as
provided herein, shall end, absolutely and without the need for notice from
either party to the other, on January 31, 2003 (the "Termination Date").
2. BASE RENT. Subject to adjustment as herein provided, the "Base
Rent" to be paid hereunder shall be $262,120.08 per annum which shall be paid
in advance on or before the first day of each calendar month during the Term,
in equal monthly installments of $21,843.34, provided, however, that Tenant
shall pay the first full monthly installment at the time of execution of this
Lease. If the Term commences other than on the first day of a month or ends
other than on the last day of a month, the Base Rent for such month shall be
prorated. The Base Rent for the portion of the month in which the Term
commences shall be paid on the first day of the first full month of the Term.
3. IMPROVEMENTS.
(a) Tenant acknowledges that it has had the opportunity to
inspect the Premises and agrees to accept the Premises in its current "as
is" condition; provided, however, that Landlord shall provide an allowance
(the "Initial Refurbishment Allowance") to Tenant to refurbish and repair the
Premises, in the amount of Twenty-Six Thousand Two Hundred Twelve and No/100
Dollars ($26,212.00); provided, however, that the Initial Refurbishment
Allowance shall only be used for the repair, maintenance, replacement or new
construction of tenant improvements located and constructed upon the
Premises. Tenant shall be entitled to disbursements from the Initial
Refurbishment Allowance within thirty (30) days after submitting a written
request to the Landlord together with evidence of Tenant's payment(s), and
applicable mechanic's lien releases reasonably acceptable to Landlord. Any
request for disbursement from the Initial Refurbishment Allowance shall not
be less than Three Thousand and No/100 Dollars ($3,000.00) excluding any final
request necessary to cause a disbursement of the remaining balance of the
Initial Refurbishment Allowance. In the event the Tenant does not use the
Initial Refurbishment Allowance on or before March 31, 2001, Tenant shall not
be entitled to any payment of the unused portion of the Initial
Refurbishment Allowance.
(b) In the event the Tenant does not exercise either the
Partial Termination Option (hereinafter defined) and provided that Tenant has
performed all of its obligations under this Lease,
Landlord shall provide, after November 1, 2000, an allowance (the "Additional
Refurbishment Allowance") to Tenant to refurbish and repair the Premises, in
the amount of Fifty-Two Thousand Four Hundred Twenty-Four and No/100 Dollars
($52,424.00); provided, however, that the Additional Refurbishment Allowance
shall only be used for the repair, maintenance, replacement or new
construction of tenant improvements located and constructed upon the
Premises. Tenant shall be entitled to disbursements from the Additional
Refurbishment Allowance within thirty (30) days after submitting a written
request to Landlord together with evidence of Tenant's payment(s), and
applicable mechanic's lien releases reasonably acceptable to Landlord. Any
request for disbursement from the Additional Refurbishment Allowance shall not
be less than Five Thousand and No/100 Dollars ($5,000.00) excluding any
final request necessary to cause a disbursement of the remaining balance of
the Initial Refurbishment Allowance. In the event the Tenant does not use the
Additional Refurbishment Allowance on or before March 31, 2001, Tenant shall
not be entitled to any payment of the unused portion of the Additional
Refurbishment Allowance.
4. ADDITIONAL RENT. In addition to paying the Base Rent specified
in Paragraph 2 hereof, Tenant shall pay "Additional Rent," which is equal to
the sum of the Expense and Adjustment Amount and Additional Services Charge
(all as hereinafter defined) and any other charges noted in this Lease. The
Base Rent and Additional Rent are sometimes herein collectively referred to
as the "Rent." Unless otherwise specified, all amounts due under this lease
as Additional Rent shall be payable in the same manner and at the same place
as the Base Rent.
(a) DEFINITIONS. As used in this Paragraph 4, the terms;
(i) "Operating Expense and Tax Base Amount" shall
mean $7.00 per rentable square foot per annum.
(ii) "Calendar Year" shall mean each calendar in which
any part of the Term falls, through and including the year in which the Term
expires.
(iii) "Tenant's Proportionate Share" shall mean 1.74%
being the percentage calculated by dividing 13,106 square feet, the rentable
area of the Premises provided at the beginning of this Lease, by 754,288
square feet (being 95% of the rentable area of the office space in the
Building). The rentable area of the Premises has been calculated according to
a method pursuant to which a portion of the common areas has been deemed
included in the Premises.
(iv) "Taxes" for any Calendar Year shall mean all real
estate taxes and assessments, special or otherwise, levied or assessed upon
that parcel of land known as Lots 1 through 32 inclusive and Block 000, Xxxx
Xxxxxx Xxxxxxxxxxx, Xxxx and County of Denver, State of Colorado (the "Land")
or the Building during such Calendar Year. Should the State of Colorado, or
any political subdivision thereof, or any other governmental authority,
impose a tax, assessment, charge or fee, which Landlord shall be required to
pay, wholly or partially in substitution of any of the above Taxes, all such
taxes, assessments fees or charges shall be deemed to constitute Taxes
hereunder but shall be computed as if the Real Property and any other shared
use real property referred to in this subparagraph was the only real property
of Landlord. "Taxes" shall also include all fees and costs, including
reasonable attorneys' fees, appraisals and consultants' fees, incurred by
Landlord in seeking to obtain a reduction of, or a limit on, any increase in
any Taxes (regardless of whether any reduction or limitation is obtained).
In the event that the Real Property shall be for any taxes or assessments
assessed under the same assessment as other real property, the amount of such
taxes or assessment to be included within Taxes shall be such portion thereof
as Landlord fairly and equitably shall deem attributable thereto.
(v) "Operating Expenses" shall mean all expenses, costs
and disbursements (other than Taxes) of every kind and nature paid or
incurred by or on behalf of Landlord in connection with the ownership,
management, operation, maintenance and repair of the Property, other than
those costs reimbursable to Landlord by other tenants in the Building (and,
as allocated by Landlord, those paid or incurred in connection with the
ownership, operation, maintenance, management and repair of any garage or
other improvements the use of which is shared by the Building and one or more
other buildings), except the following:
[A] Costs of alterations of any tenant's
premises;
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[B] Principal or interest payments on loans
secured by mortgages or trust deeds on the Real Property;
[C] Costs of capital improvements, except that
Operating Expenses shall include the costs as amortized over such number of
years as Landlord may reasonably determine, with interest at the rate of 12%
per annum on the unamortized amount, of any capital improvements which, (1)
in Landlord's reasonable opinion, will have the effect of reducing any
component cost included within Operating Expenses, (2) are made or installed
to assure compliance with all governmental rules and regulations applicable
from time to time, or (3) under generally applied real estate accounting
practices may be expensed or treated as deferred expenses (and the
amortization and interest so determined for each Calendar Year shall be
included in Operating Expenses for that Calendar Year); and
[D] Leasing commissions for space in the
Building.
(vi) "Expense and Tax Adjustment Amount" shall mean
Tenant's Proportionate Share of the amount by which the Operating Expenses
and Taxes incurred with respect to such Calendar Year exceed the Operating
Expense and Tax Base Amount; provided, however, that in determining the amount
of Operating Expenses for each Calendar Year, if less than 95% of the
rentable office area of the Building shall have been occupied at any time
during such Calendar Year, Operating Expenses shall be deemed for such
Calendar Year to be in the amount reasonably determined by Landlord to be
equal to that amount of like expenses which normally would be expected to be
incurred had such occupancy been 95% throughout such Calendar Year.
(vii) "Additional Services Charge" shall mean all
expenses and disbursements that Landlord incurs in connection with the
ownership, operation, and maintenance of the Premises, in addition to the
service provided as standard to all premises in the Building, which Additional
Services are more specifically described and defined in Paragraph 7 below.
(b) PAYMENT OF ADDITIONAL RENT.
(i) EXPENSE AND TAX ADJUSTMENT. The Expense and Tax
Adjustment Amount with respect to each Calendar Year shall be paid in monthly
installments, in advance on the first day of each calendar month during the
course of such year, in amounts estimated from time to time by Landlord and
communicated by written notice to Tenant. Landlord shall cause to be kept
books and records showing Operating Expenses and Taxes in accordance with
generally accepted accounting principles. Following the close of each
Calendar Year, Landlord shall cause the amount of the Expense and Tax
Adjustment Amount for such Calendar Year to be computed based on Operating
Expenses and Taxes for such Calendar Year, and Landlord shall deliver to
Tenant a statement of such amount; thereupon Tenant shall pay any deficiency
as shown by such statement to Landlord within 30 days after receipt of such
statement. If the total of the estimated monthly installments paid by Tenant
during any Calendar Year exceed the actual Expense and Tax Adjustment Amount
due from Tenant for such Calendar Year, then, at Landlord's option, such
excess shall be either credited against payments next due hereunder or
refunded by Landlord, provided Tenant is not then in default hereunder. The
amount of any refund of Taxes received by Landlord shall be credited against
Taxes for the year in which such refund is received. In determining the
amount of Taxes for any year, the amount of special assessments to be
included shall be limited to the amount of the installment (plus any interest
payable thereon) of such special assessment required to be paid during such
year as if Landlord had elected to have such special assessment paid over the
maximum period of time permitted by law; if the authority to whom such
assessment is to be paid shall not permit such assessment to be paid
in installments, the amount of such assessment shall be treated as being
amortized over such number of calendar years, beginning with the Calendar
Year in which the assessment is payable, as Landlord shall reasonably
determine, with interest at the rate of 15% per annum on the unamortized
amount, and such amortization and interest for each Calendar Year shall be
included in Taxes for that Calendar Year.
(ii) ADDITIONAL SERVICES CHARGE. The Additional
Services Charge shall be paid in monthly installments, in arrears, on the
first day of each calendar month during the course of such year, in amounts
estimated from time to time by Landlord and communicated by written notice to
Tenant. Following the close of each Calendar Year, Landlord shall cause the
amount of the Additional Services Charge for such Calendar Year to be
computed and Landlord shall deliver to
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Tenant a statement of such amount, whereupon Tenant shall pay any deficiency
as shown by such statement to Landlord within 30 days after receipt of such
statement. If the total of the estimated monthly installments paid by Tenant
during any Calendar Year exceeds the actual Additional Services Charge due
from Tenant for such Calendar Year, then, at Landlords's option, such excess
shall be either credited against payments next due hereunder or refunded by
Landlord, provided Tenant is not then in default hereunder.
(c) ADJUSTMENT FOR SERVICES NOT RENDERED. If Landlord shall not be
furnishing any particular work or service (the cost of which, if furnished by
Landlord would be included in Operating Expenses) to a tenant who undertakes
to itself perform or obtain such work or service in lieu of the furnishing
thereof by Landlord, Operating Expenses shall be deemed for purposes of this
Paragraph 4 to be increased by an amount equal to the additional Operating
Expenses, as reasonably determined by Landlord, which would have been
incurred during such period if Landlord had at its own expense furnished such
work or service to such tenant.
(d) PARTIAL YEAR. If only part of any Calendar Year shall fall
within the Term, the amounts computed as Additional Rent, with respect to
such Calendar Year under the foregoing provisions of this Paragraph 4 shall
be prorated in proportion to the portion of such Calendar Year falling within
the Term, but the expiration or termination of this Lease prior to the end of
such Calendar Year shall not impair Tenant's obligation hereunder to pay such
prorated portion of such Additional Rent with respect to that portion of such
year falling within the Term.
(e) DISPUTES. Any statement furnished to Tenant by Landlord under
the provisions of this Paragraph 4 shall constitute a final determination as
between Landlord and Tenant as to the Rent set forth therein due from Tenant
for the period represented thereby, unless Tenant, within 60 days after such
statement is furnished, shall give a notice to Landlord that it disputes the
correctness thereof, specifying in detail the basis for such assertion.
Pending resolution of such dispute, Tenant shall pay all disputed amounts in
accordance with the statement furnished by Landlord. Landlord agrees, upon
prior written request, during normal business hours to make available for
Tenant's inspection, at Landlord's offices, Landlord's books and records
which are relevant to any items in dispute, provided Tenant has paid all
amounts billed to Tenant on account of the Additional Rent and all
installments thereof, and all other rents and sums then and previously due
under this Lease.
(f) PLACE OF PAYMENT. Tenant shall, without any demand therefor
and without set-off, pay to DENVER PLACE ASSOCIATES LIMITED PARTNERSHIP, X/X
XXXXXXXXXX, XXXXXX, XXXXXXXX 00000-0000, or to such other person or at such
other place as Landlord may from time to time direct by notice given to
Tenant, the Base Rent as well as all other sums which may become due by
Tenant under this Lease. All such other sums shall be payable as Additional
Rent.
(g) TENANT TAXES.
(i) Any provision hereof to the contrary notwithstanding,
Tenant shall, upon demand from time to time, as Additional Rent, pay to Agent
or, as Landlord may direct, to Landlord or to the tax collecting authority,
the full amount of all taxes, levies, charges and assessments legally
required or authorized to be collected by Landlord from Tenant or any
subtenant or occupant of the Premises and all taxes, levies, charges and
assessments required to be paid by Landlord (or imposed upon the Property),
other than taxes based on Landlord's income, if not paid by or collected from
Tenant or a subtenant or occupant of the Premises. Tenant hereby agrees to
defend, indemnify and hold harmless Landlord from and against all loss, cost,
liability and expenses (including counsel fees and costs of litigation) which
Landlord may suffer, incur or be exposed to as a result of any assertion
against Landlord of liability for any of the taxes referred to in this
subparagraph (h), and from and against any penalties or interest relating
thereto, which Tenant fails to pay pursuant hereto.
(ii) Tenant shall timely pay when due all taxes, levies,
charges and assessments which are required to be paid by Tenant with respect
to Tenant's use or occupancy of the Premises or which are or could become a
lien upon the personal property, trade fixtures, furniture or facilities of
Tenant on the Premises. Tenant hereby agrees to defend, indemnify and hold
harmless Landlord from and against all loss, cost, liability and expense
(including, without limitation, counsel
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fees and costs of litigation) which Landlord may suffer or incur, or to which
Landlord may be exposed, as a result of Tenant's failure to pay any of the
foregoing.
(iii) Within 15 days after each date upon which such taxes
are due, Tenant shall deliver to Landlord official receipts for the payment
of all taxes due with respect to the personal property, trade fixtures,
furniture or facilities of Tenant on the Premises. In addition, within 15 days
after written notice from Landlord to do so, Tenant shall deliver to Landlord
official receipts for the payment of all other taxes, levies, charges and
assessments within the scope of subparagraph (ii) above that were due and
payable in the calendar year in which such notice is given and in the
preceding calendar year. If Tenant shall fail to present any of the receipts
referred to in this subparagraph within the times set forth herein, Landlord
shall have the right to pay the amounts of the taxes which Landlord
reasonably determines would have been covered thereby, together with the full
interest and penalties chargeable thereon in accordance with law, and
Landlord shall, upon demand, be entitled to reimbursement for all of such
payments together with interest at the "Lease Interest Rate" (defined in
Paragraph 21 hereof).
(iv) Tenant shall cause all of the personal property, trade
fixtures, furniture and facilities of Tenant on the Premises, and all
alterations, additions and improvements made by Tenant to the Premises which
for purposes of personal property taxes are treated as personal property
(such as built-in cabinets, counters and partitions) to be assessed
separately from Landlord's property, and, if they are not so separately
assessed, Landlord shall be entitled to reimbursement, within 10 days after
demand made from time to time, for any tax payable by Landlord which is
attributable to any of such items taxable as personal property.
(h) DELAY IN COMPUTATION. Delay in computation of the Expense and
Adjustment Amount or Additional Services Charge shall not be deemed a default
hereunder or a waiver of Landlord's right to collect any of such amounts.
5. USE OF PREMISES. Tenant shall use and occupy the Premises solely as
a general business office and for no other purpose.
6. CONDITION OF PREMISES. Tenant's taking possession of the Premises
or any portion thereof shall be conclusive evidence that the Premises or any
such portion was in good order and satisfactory condition when Tenant took
possession. At the expiration or other termination of this Lease or of
Tenant's right of possession, Tenant shall leave the Premises, and during the
Term will keep the same, in good order and condition, ordinary wear and tear,
damage by fire or other casualty (which fire or other casualty has not
occurred through the negligence of Tenant or those claiming under Tenant or
their employees or invitees respectively) alone excepted; and for that
purpose, Tenant shall make all necessary repairs and replacements. Tenant
shall give Landlord prompt notice of any damage to or accident upon the
Premises and of any breakage or defects in the window glass, wiring or
plumbing, heating, ventilating or cooling or electrical apparatus or systems
on or serving the Premises. Tenant shall at the expiration or termination of
this Lease or of Tenant's right of possession, also have had removed from the
Premises all furniture, trade fixtures, office equipment and all other items
of Tenant's property (including, without limitation, the items Tenant is
required to remove pursuant to subparagraph 8(c) hereof) so that Landlord may
again have and repossess the Premises. All such items not removed from the
Premises at such expiration or termination, shall conclusively be deemed to
have been abandoned and may be appropriated, sold, stored, destroyed or
otherwise disposed of by Landlord without notice to Tenant or any other party
with an interest in such property and without any obligation to account
therefor. Tenant shall pay Landlord all expenses incurred in connection with
the disposition of such property, and if Landlord shall choose to store any
such items, Landlord shall have no liability for the safekeeping thereof and
such items may not be retrieved by Tenant or any other person except upon
payment of such charges as may be imposed for the removal and storage. Tenant
shall comply with all laws, rules, orders, ordinances and regulations at any
time issued or in force by any lawful authority, applicable to Tenant or any
other occupant of the Premises, or to the Premises, or to the use or
occupancy of the Premises. Tenant shall, upon demand, pay to Landlord the
amount of any damages suffered or incurred by Landlord as a result of any
injury to any part of the Property other than the Premises, done by tenant or
any subtenant or any agent, employee, contractor or invitee of Tenant or any
subtenant, including, without limitation, damage done by the bringing or
removal of furniture and other property. Tenant shall forthwith repair all
damage done to the Premises by installation or removal of furniture and
property by Tenant or any subtenant or by any agent, employee, contractor or
invitee of Tenant or of any subtenant or,
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if Landlord shall so request, pay to Landlord the cost of such repair. Tenant
shall not do or commit, or suffer or permit to be done or committed, any act
or thing as a result of which any policy of insurance of any kind on or in
connection with the Property shall become void or suspended, or any insurance
risk on or in connection with the Building or any other portion of the
Property shall (in the opinion of the insurer or any insurance organization)
be rendered more hazardous or require payment of a greater premium; without
limitation of any other rights and remedies of Landlord, Tenant shall pay as
Additional Rent the amount of any increase of premiums for such insurance,
resulting from any breach of this provision. Tenant shall leave the Premises
in a reasonably tidy condition on all days upon which janitorial services are
to be provided by Landlord. Landlord shall, at Landlord's expense, replace
any glass broken in the Premises windows in the exterior walls of the
Building, unless such glass is broken by Tenant, its servants, employees,
agents, invitees,licensees or contractors, in which case Tenant shall, upon
demand, pay the cost of replacement by Landlord. Tenant shall replace and pay
for any other glass broken in or about the Premises.
7. SERVICES.
(a) STANDARD SERVICES. Landlord shall provide the following
services on all days during the Term, except Sundays and holidays, unless
otherwise stated:
(i) HVAC. Heating, ventilation and air conditioning, as
deemed appropriate by Landlord, from Monday through Friday within the period
from 6:00 a.m. to 6:00 p.m. and on Saturday within the period from 8:00 a.m.
to 1:00 p.m., holidays excepted. Tenant, within ten days after its receipt of
each xxxx therefor, will pay for all heating, ventilating and air
conditioning requested and furnished at other times, at rates to be
established from time to time by Landlord. Landlord shall not be responsible
for the failure of the HVAC system to provide normal comfort if such failure
results from occupancy of the Premises by more than an average of one person
for each 000 xxxxxx xxxx xx xxxxx xxxx or if Tenant uses heat-producing
equipment or equipment the electrical load of which, when combined with the
load of all lighting fixtures, exceeds 4.2 xxxxx per square foot of floor
area in any one room or area. Unless otherwise consented to by Landlord,
window coverings shall be uniform in the Building and shall be closed when
exterior office windows are exposed to the sun without regard to Tenant's
specific use of the space or to the installation of any computers or data
processing equipment.
(ii) ELECTRICITY. Subject to subparagraph 7(b) hereof,
electrical energy for Building-standard lighting fixtures provided by
Landlord and for the operation of desk-top office equipment, provided that
(A) the connected electrical load of such equipment does not exceed an
average of 2.5 xxxxx per square foot of the Premises and (B) the electricity
so furnished for equipment uses will be at a nominal 120 volts and no
electrical circuit for the supply of such use need have a current capacity
exceeding 20 amperes. Landlord shall provide and pay for electric service as
described in this subparagraph 7(a)(ii) during the period from 6:00 a.m. to
6:00 p.m. from Monday through Friday and during the period from 8:00 a.m. to
1:00 p.m. on Saturday, holidays excepted.
(iii) WATER. Ordinary water from the regular Building outlets
for drinking, lavatory and toilet purposes.
(iv) JANITORIAL SERVICES. Janitorial services, including,
without limitation, replacement of fluorescent bulbs in Building-standard
lighting fixtures, Monday through Friday in and about the Premises (except
holidays). If any material use made of the Premises after 6:00 p.m. shall, by
reason of work force scheduling or security, overtime, union rules or
otherwise, cause any increase in Landlord's cost for providing janitorial
services, Tenant shall, as an Additional Services Charge, pay all bills for
reimbursement of Landlord for such increase, within ten days after Tenant's
receipt of such xxxx, or Landlord may xxxx Tenant for such services with
other Additional Services. All janitorial services shall be performed solely
at Landlord's direction without interference from Tenant.
(v) PASSENGER ELEVATOR. Automatic passenger elevator service
at all times.
(vi) FREIGHT ELEVATOR. Freight elevator services subject to
reasonable scheduling by Landlord.
(b) ADDITIONAL SERVICES. The following services are being provided
to the Premises in addition to the standard services described in
subparagraph 7(a) above ("Additional Services"), and
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costs and expenses therefor incurred by Landlord will be charged directly to
Tenant as an Additional Services charge and will not be included in the
Operating Expenses for the Building:
(i) EXCESS UTILITY USE.
(A) AFTER-HOURS UTILITIES. In the event that Landlord,
in Landlord's sole discretion, determines that Tenant's use of electricity
exceeds the service to be provided under subparagraph 7(a) above or goes
materially beyond the hours specified in subparagraph 7(a), Tenant shall pay,
as an Additional Services Charge, such amounts for such excess or other hours
use with other Additional Services as shall be required under this
subparagraph 7(b)(i). In addition, if the Premises are used in a manner
exceeding the aforementioned occupancy and electric load criteria or if such
window covering requirement shall not be observed or if heat-producing or
controlled climate equipment is used, Tenant shall pay to Landlord, promptly
upon billing, Landlord's additional costs of supplying air conditioning
resulting from such causes, at such rates as Landlord shall establish
therefor. If due to use of the Premises in a manner exceeding the
aforementioned occupancy and electrical load criteria, or due to the
arrangement of partitioning, or the use of heat-producing or controlled
climate equipment, or the distribution system within the Premises, impairment
of normal operation of the HVAC system in the Premises results, necessitating
changes in HVAC distribution system within the Premises, such changes may be
made by Landlord upon request by Tenant at Tenant's sole cost and expense,
provided that they can be accommodated by Landlord's systems. Tenant agrees
at all times to cooperate fully with Landlord and to abide by all the
regulations and requirements which Landlord may prescribe for the proper
functioning and protection of the HVAC system. After Landlord has balanced
the air-conditioning system for Tenant, if Tenant installs partitions,
equipment, or fixtures requiring rebalancing of the system, Landlord, at
Tenant's request and at Tenant's expense (which shall be charged as an
Additional Services Charge payable upon demand) shall endeavor to do such
rebalancing. If Tenant's requirements for electricity or other utilities are
in excess of those set forth in subparagraph 7(a), and if, in Landlord's sole
judgment, Landlord's facilities are inadequate for such additional
requirements and if electrical energy for such additional requirements is
available to Landlord, Landlord, upon written request and at the sole cost
and expense of Tenant, will furnish and install, or, at Landlord's sole
discretion, permit Tenant to furnish and install, such additional wires,
risers, conduits, feeders, cabling, or other pipelines or conduits and
switchboards as reasonably may be required to supply such additional
requirements of Tenant provided that (1) the same shall be permitted by
applicable laws and insurance regulations; (2) in Landlord's sole judgment,
the same are necessary and will not cause permanent damage or injury to the
Building or the Premises or cause or create a dangerous or hazardous
condition or entail excessive or unreasonable alterations or repairs or
interfere with or disturb other tenants or occupants of the Building; (3) in
Landlord's sole judgment, the same will not in any way diminish or adversely
affect the utilities which Landlord deems should remain available for other
tenants; and (4) Tenant, at Tenant's expense, shall, concurrently with the
making of such written request, execute and deliver to Landlord Tenant's
written undertaking, in form and substance satisfactory to Landlord,
obligating Tenant to fully and promptly pay the entire cost and expense of so
furnishing and installing any additional wires, risers, conduits, feeders,
cabling, and other pipelines and conduits and switchboards as Additional
Services.
(B) MEASURED USAGE. In the event that Tenant's use of
the Premises includes the use or installation of any machines, equipment, or
devices in the Premises that do not constitute standard office equipment
provided to all tenants of the Building, including, without limitation,
refrigerators, dishwashers, garbage disposals, air conditioning units,
heating units, computer, or other electrical equipment or fixtures
("Non-Standard Equipment") causing, in Landlord's sole determination,
Tenant's use of electric service or other utilities provided to the Premises
to exceed the service to be provided under subparagraph 7(a) above, or if
there shall be at the Premises any other hours (i.e., outside the hours
specified in 7(a)) use of electricity or other utilities which Landlord
believes may be material, Landlord shall install in the Premises or
elsewhere, if Landlord shall so elect, or, if Tenant shall so request and if
feasible in Landlord's reasonable judgment, one or more meters or other
devices to measure the electricity or other utilities used by such computers
or other equipment or fixtures or such other hours use; and Tenant shall pay
Landlord for such electricity or other utilities as Additional Services within
ten days after submission of each xxxx by Landlord therefor, or Landlord may
xxxx Tenant for such services with other Additional Services, at such rates
as shall be from time to time determined by Landlord, provided that the rates
charged by Landlord shall not exceed Landlord's cost (including, without
limitation, taxes, fuel adjustment charges, and other like charges regularly
passed on to customers by public utility
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companies and transformer costs) of supplying such electricity or other
utilities as determined by Landlord using reasonable accounting methods; and
the cost of obtaining and installing such meters or other devices shall be
paid by Tenant to Landlord within ten days after submission of each xxxx by
Landlord to Tenant therefor, or Landlord may xxxx Tenant for such services
with other Additional Services.
(C) ESTIMATED USAGE. For any other hours use of
electricity or other utilities determined by Landlord to be material, and for
any use of electricity or other utilities which is determined by Landlord to
be in excess of the service to be provided under subparagraph 7(a) above, and
which is not actually measured, Tenant shall pay to Landlord, in monthly
installments at the times prescribed for the monthly installments of the Base
Rent, as Additional Services, amounts, as reasonably estimated by Landlord
from time to time, which Tenant would be required to pay for such excess or
other hours electrical or other utilities service if the same were actually
measured as provided in subparagraph 7(b)(i)(B) above.
(ii) LANDLORD'S REPAIR OF NON-STANDARD EQUIPMENT. If
Non-Standard Equipment located in the Premises requires maintenance or repair
in excess of the amount provided to all tenants of the Building, Landlord will
provide such excess services to Tenant within a reasonable amount of time
after Tenant's request is made to the manager of the Building, provided that
such excess services are available from the manager of the Building or the
contractors already retained by the manager for the Building. Tenant will
pay the cost of such excess services as Additional Services.
(iii) EXCESS JANITORIAL SERVICES. If Tenant requires any
janitorial or cleaning services in excess of the amounts provided by Landlord
according to subparagraph 7(a)(iv) (such as cleaning services beyond normal
office janitorial services for kitchens, computer rooms, or other special use
areas and carpet cleaning), Landlord will provide such excess services to
Tenant within a reasonable period after Tenant's request is made to the
manager of the Building, provided that such excess services are available
from Landlord's regular janitorial or cleaning contractor. Tenant will pay
the cost of such excess services as Additional Services. Landlord will also
provide, within a reasonable period after Tenant's request is made to the
manager of the Building or at Tenant's cost and to the extend available to
Landlord, replacement of bulbs, tubes or ballasts in any Building
non-standard lighting fixtures in the Premises. Tenant will pay the costs of
such services as Additional Services.
(iv) EXCESS SERVICES. If Tenant requires any work, service,
or materials performed for, or facilities or materials furnished to Tenant,
to a greater extent or in a manner more favorable to Tenant than those
performed for or furnished to other tenants of the Building, including, but
not limited to, supplying paper towels, restocking recycling containers,
hanging pictures or whiteboards, providing extra keys to the Premises and any
other work or services which relate to Tenant's use of the Premises, Landlord
will provide such excess services to Tenant within a reasonable period after
Tenant's request is made to the manager of the Building provided that such
excess services are available from the manager of the Building, or the
contractors already retained by the manager of the Building. Tenant will pay
the cost of such excess services as Additional Services.
(c) INTERRUPTION OF SERVICES. Tenant agrees that Landlord shall
not be liable for damages (by abatement of rent or otherwise) for failure to
furnish or delay in furnishing any service, or for any diminution in the
quality or quantity thereof, when such failure or delay or diminution is
occasioned, in whole or in part, by repairs, renewals, or improvements, by
any strike, lockout or other labor trouble, by inability to secure fuel, by
governmental laws, regulations or orders, by Landlord's compliance, in whole
or in part with any government promulgated program (whether voluntary or
mandatory), for conversation of energy by any accident or casualty
whatsoever, by act or default of Tenant or other parties, or by any cause
beyond Landlord's reasonable control; and such failures or delays or
diminution shall never be deemed to constitute an eviction or disturbance of
Tenant's use and possession of the Premises or relieve Tenant from paying
rent or performing any of its obligations under this Lease. Landlord's
obligation to furnish services shall also be further conditioned upon the
availability of adequate energy sources from the public utility companies
then servicing the downtown Denver area.
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8. ALTERATIONS
(a) Tenant shall not, without the prior written consent of
Landlord, make any alterations, improvements or additions to the Premises. If
Landlord consents to any alterations, improvements or additions, it may
impose such conditions with respect thereto as Landlord deems appropriate,
including, without limitation, Landlord's approval of plans and
specifications for the work (but Tenant shall not be entitled to rely upon
such approval as evidencing that the plans and specifications are proper in
any respect), use of Landlord's approved contractors to perform the work (it
being agreed that W.E. Keiding is pre-approved by Landlord), insurance
against liabilities which may arise out of such work, permits necessary for
such work and as-built drawings upon completion of such work and the
furnishing to Landlord of such security as is determined by Landlord to be
appropriate for the proper completion of such work and its completion free of
mechanics', materialmen's and similar liens or claims thereof. All work done
by Tenant or its contractors shall be done in a first-class workmanlike
manner, using only good grades of materials and without disturbing other
tenants and shall comply with all insurance requirements and all applicable
laws or ordinances and rules and regulations of governmental departments or
agencies. Before proceeding with any such work, Tenant shall reimburse
Landlord for Landlord's costs of Landlord's architects' review of Tenant's
plans and specifications. Any work performed by or for Tenant shall be
performed by competent workmen whose labor union affiliations are compatible
with those of the workmen who may be employed in the Building by Landlord,
its contractors or subcontractors, and Landlord shall have the right, at its
option, to directly supervise the work, which supervision shall be for the
protection of Landlord's interest only.
(b) If Tenant requests that Landlord, through its contractors,
perform the work associated with any alteration, improvement or addition to
the Premises, and Landlord agrees, in its sole discretion, to perform such
work, Landlord shall provide Tenant with a Tenant Work Order describing the
work to be performed by Landlord and stating the total cost to Tenant for the
performance of the work. Upon Tenant's acceptance of the Tenant Work Order,
the total cost for the work stated therein shall become a sum required to be
paid under this Lease and subject to the provisions of subparagraph 8(a).
(c) All alterations, additions or improvements made by Tenant and
all fixtures attached to the Premises shall become the property of Landlord
and remain at the Premises or, at Landlord's option, any or all of the
foregoing shall be removed at the cost of Tenant before the expiration or
sooner termination of this Lease and in such event Tenant shall repair all
damage to the Premises caused by the installations or removal thereof.
Tenant shall not permit or suffer any signs advertisements or notices to be
displayed, inscribed upon or affixed on any part of the outside or inside of
the Premises, or in the Building, except on the entrance doors of the
Premises, and then only of such size, color and style as Landlord may
approve. Landlord shall have the right to remove unauthorized signs at
Tenant's expense.
9. LIENS.
(a) Tenant shall not permit there to be filed against the Property
or Landlord's interest therein or any part of either, and shall within ten
days after Tenant has notice of the claim or lien, remove or have removed,
and mechanics', or materialmen's or other lien, or claim thereof, filed by
reason of work, labor, services or materials provided for or at the request
of Tenant (other than work, labor, services or materials provided by
Landlord) or any subtenant or occupant or for any contractor or subcontractor
employed by Tenant or any subtenant or occupant, and shall exonerate,
protect, defend and hold free and harmless Landlord against and from any and
all such claims or liens. Without limitation of the foregoing, if any such
claim or lien be filed, Landlord may, but shall not be obligated to,
discharge it either by paying the amount claimed to be due in the claim or
lien or by procuring the discharge of such lien or claim by deposit or by
bonding proceedings. Any amount so paid by Landlord and all costs and
expenses, including, without limitation, reasonable attorney's fees, in
connection therewith, together with interest thereon at the Lease Interest
Rate (hereinafter defined) from the respective dates of Landlord's making of
the payments and incurring of the costs and expenses, shall constitute
Additional Rent payable by Tenant under this Lease and shall be paid by
Tenant to Landlord on demand.
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(b) At least ten days before the commencement of any work ordered
by Tenant on the Premises, Tenant shall notify Landlord of the proposed work
and of the names and addresses of the persons supplying labor and materials
for the proposed work so that Landlord may avail itself of the provisions of
statutes such as C.R.S. Section 38-22-105(2). During any such work on
the Premises, Landlord, or its representatives, shall have the right to go
upon and inspect the Premises at all reasonable times, and shall have the
right to post and keep posted thereon notices such as those provided for by
C.R.S. Section 38-22-105(2) or to take any action that Landlord may deem
advisable to protect Landlord's interest in the Premises.
10. INSURANCE AND WAIVER OF SUBROGATION.
(a) Tenant, at its sole cost, shall maintain with responsible
insurance companies acceptable to Landlord and qualified to do business in
Colorado, general comprehensive public liability insurance against claims for
personal injury (including death) and property damage, arising from
occurrences in, on and about the Premises, with coverage on an occurrence
basis in all cases of not less than a combined single limit of $3,000,000.00
per occurrence. Landlord shall be designated a named insured in the policies
for such insurance, which shall contain endorsements providing that the
naming of more than one insured shall not operate to limit or void the
coverage of any named insured relating to claims by another named insured.
(b) Tenant, at its sole cost, shall maintain with responsible
insurance companies acceptable to Landlord and qualified to do business in
Colorado, "All Risk" or equivalent insurance upon all personal property upon
the Premises and all equipment, fixtures, additions, alterations and
improvements and betterments installed by or for Tenant upon the Premises,
including, without limitation, anything in the nature of a leasehold
improvement, in an amount which is at least 80% of the full replacement cost
thereof, which insurance shall name Landlord as a named insured and
Landlord's mortgagees as mortgagees under a standard mortgagee clause. In the
event of damage or destruction to any leasehold improvements, Tenant shall
use the proceeds of such insurance to repair or restore such leasehold
improvements. If this Lease shall be terminated pursuant to subparagraph
11(a) on account of damage by fire or other casualty to the Building or the
Premises, Landlord shall be entitled to all of the insurance proceeds payable
under the aforesaid insurance relating to the leasehold improvements and the
Premises.
(c) Tenant shall, prior to the commencement of the Term, and at
least 30 days prior to the expiration date of each policy, furnish to Landlord
certificates evidencing the coverage required hereinabove in this Paragraph
and the renewal thereof, which certificates shall state that such insurance
coverage may not be materially changed or canceled without at least ten days
prior written notice to Landlord and Landlord's mortgagee.
(d) Notwithstanding anything herein to the contrary, Landlord and
Tenant each hereby release the other, its officers, directors, partners,
agents and employees (and Tenant hereby also releases Agent, its partners,
officers, directors, agents and employees), to the extent of the releasing
party's coverage under its insurance policies, from any and all liability for
any loss or damage which may be inflicted upon the property of such party,
notwithstanding that such loss or damage shall have arisen out of the
negligence of the other party, its partners, officers, directors, agents or
employees; provided, however, that this release shall be effective only with
respect to occurrences occurring during such time as the appropriate policy
of insurance of the party so releasing shall contain a clause to the effect
that such release shall not affect this said policy or the right of the
insured to recover thereunder.
11. FIRE OR CASUALTY.
(a) If the Premises or the Building (including machinery or
equipment used in the operation of the Building) shall be damaged by fire or
other casualty and if such damage does not render all or a substantial
portion of the Premises or Building untenantable, then Landlord shall repair
and restore the same with reasonable promptness, subject to reasonable delays
for insurance adjustments and delays caused by matters beyond Landlord's
reasonable control. If any such damage renders all or a substantial portion
of the Premises or Building untenantable, Landlord shall have the right to
terminate this Lease (with appropriate prorations of rent being made for
Tenant's possession subsequent to the date of such damage of those tenantable
portions of the Premises) upon giving written notice to Tenant at any time
within 120 days after the date of such damage; and if such notice
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is given Landlord shall have no obligation to repair or restore. Landlord
shall have no liability to Tenant, and Tenant shall not be entitled to
terminate this Lease by virtue of any delays in completion of such repairs
and restoration. Rent, however, shall xxxxx on those portions of the Premise
as are, from time to time, untenantable as a result of such damage.
(b) Notwithstanding anything to the contrary herein set forth,
Landlord shall have no duty pursuant to this Paragraph 11 to repair or
restore any portion of any alterations, additions or improvements in the
Premises or the decorations thereto except to the extent that such
alterations, additions, improvements and decorations were provided by
Landlord at the beginning of the Term.
12. WAIVER OF CLAIMS - INDEMNIFICATION. To the extent not prohibited by
law, Landlord, Agent and their respective officers, directors, partners,
agents, servants and employees shall not be liable for, and it and they are
hereby released by Tenant from all liability for, any damage either to person
or property or resulting from the loss of use thereof or any other loss, or
any death, sustained by Tenant or by other persons claiming through Tenant
due to the Property or any part thereof or any appurtenances thereof becoming
out of repair, or due to the happening of any accident or event in, on or
about the Property, or due to any act or neglect of any tenant or occupant of
the Building or any other person. This provision shall apply particularly,
but not exclusively, to damage caused by gas, electricity, snow, frost,
steam, sewage, sewer gas or odors, fire, water or by the bursting or leaking
of pipes, faucets, sprinklers, plumbing fixtures and windows, and shall apply
without distinction as to the person (whether Landlord, Agent or other) whose
act or neglect was responsible for the damage and whether or not such act or
neglect occurred before, at or after the execution of this Lease, and whether
the damage was due to any of the causes specifically enumerated above or to
some other cause of an entirely different kind. Tenant further agrees that
all personal property of Tenant upon the Premises, or upon loading docks,
receiving and holding areas, or elsewhere in, on or about the Property, shall
be at the risk of Tenant only, and that neither Landlord nor Agent, nor their
partners, directors or officers, shall be liable for any loss or damage
thereto or theft thereof. Without limitation of any other provisions hereof,
Tenant agrees to defend, protect, indemnify and save harmless Landlord and
Agent, and their respective partners, officers, directors and employees, from
and against all liability to third parties arising out of the acts or
omissions of Tenant or any subtenant or the servants, agents, employees,
contractors, suppliers, workmen and invitees of Tenant or any subtenant.
Tenant agrees to indemnify and save harmless, and upon request, defend,
Landlord, Agent, and their respective partners, directors, officers and
employees (herein called "indemnitees") against and from any and all claims
by or on behalf of any person, arising out of or related to:
(a) Tenant's use or occupancy of the Premises or the conduct of
its business, or any activity, work, or thing, permitted or suffered by
Tenant, in, on or about the Premises or the Property;
(b) any occurrence in, on or about the Premises;
(c) any breach or default on Tenant's part in the performance or
observance of, or compliance with, any term, covenant or condition on
Tenant's part to be performed pursuant to the terms of this Lease; or
(d) any act or negligence of Tenant or any subtenant, or any of
their respective agents, contractors, servants, employees, invitees or
licensees, whether or not the fault or negligence of Landlord, or of any
other indemnitee or of the agents, contractors, servants, employees,
invitees, or licensees of Landlord or any indemnitee, (whether or not
occurring before or after the execution of this Lease), contributed thereto
or was the cause thereof, and from and against all costs, counsel fees,
expenses, penalties, fines and liabilities which Landlord or any other
indemnitee may suffer or incur in connection with any such claim and any
action or proceeding brought with respect thereto. In the event that any
action or proceeding shall be brought by reason of any such claim, against
any party to be indemnified hereunder, Tenant covenants that Tenant, upon
notice from such party and at Tenant's expense, shall resist and defend such
action or proceeding by counsel reasonably satisfactory to such party.
13. NONWAIVER. No waiver of any provision of this Lease shall be implied
by any failure of Landlord to enforce any remedy on account of the violation
of such provision, even if such
-11-
violation be continued or repeated subsequently, and no express waiver shall
affect any provision other than the one specified in such waiver and that one
only for the time and in the manner specifically stated. No receipt of moneys
by Landlord or its agents from Tenant after the termination of this Lease
shall in any way alter the length of the Term or of Tenant's right of
possession hereunder or after the giving of any notice shall reinstate,
continue or extend the Term or affect any notice given Tenant prior to the
receipt of such moneys, it being agreed that after the service of notice or
the commencement of a suit or after final judgment for possession of the
Premises, Landlord may receive and collect any rent due, and the payment and
acceptance of payment of rent shall not waive or affect said notice, suit or
judgment.
14. CONDEMNATION. In the event that the whole of the Premises shall be
lawfully condemned or taken for a public or quasi-public use, this Lease
shall terminate as of the date that possession is to be surrendered to the
condemnor or taking authority. In the event that there shall be a lawful
condemnation or taking for any public or quasi-public use of any part of the
Building, without there being condemned or taken all of the Premises, then,
at the option of Landlord, exercisable by notice given to Tenant not later
than 90 days after the date upon which Landlord receives notice of the taking
or condemnation, this Lease shall terminate as of the date that possession of
the Premises taken is required to be surrendered to the condemnor or taking
authority. In the event of any such taking or condemnation of all or any part
of the Premises or of all or any part of the Property, Tenant shall have no
claim against Landlord and shall not have any claim or right to any portion
of the amount that may be awarded as damages or paid as a result of such
taking or condemnation; and all rights of Tenant to damages therefor are
hereby assigned by Tenant to Landlord and Tenant shall have no claim against
Landlord or the condemnor for the value of the unexpired term of this Lease.
However, the foregoing provisions of this paragraph shall not be construed to
deprive Tenant of the right to claim and receive payment from the condemnor
or taking authority for moving and related expenses as long as such claim or
the payment thereof does not reduce the award which Landlord would otherwise
be entitled to receive. In the event of any such taking or condemnation of
part of the Premises, the Base Rent, and the Operating Expense and Tax
Adjustment shall be proportionately reduced from the date that possession is
required to be surrendered to the condemnor or taking authority.
15. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior
written consent of Landlord (which shall not be unreasonably withheld in the
case of an assignment or subletting), (a) assign, convey or mortgage this
Lease or any interest hereunder; (b) suffer to occur or permit to exist any
assignment of this Lease, or any lien upon Tenant's interest hereunder,
whether voluntarily, involuntarily or by operation of law; (c) sublet the
Premises or any part thereof, or (d) permit the use of the Premises by any
parties other than Tenant and its employees. Any such action on the part of
Tenant without Landlord's consent, shall be void and of no effect. Landlord's
consent to any assignment, subletting or transfer or Landlord's election to
accept any assignee, subtenant or transferee as the tenant hereunder and to
collect rent from such assignee, subtenant or transferee shall not release
Tenant or any subsequent tenant from any covenant or obligation under this
Lease. Landlord's consent to any assignment, subletting or other act or
occurrence requiring Landlord's consent shall not constitute a waiver of
Landlord's right to withhold its consent to any future assignment, subletting
or act or occurrence requiring Landlord's consent. Without limitation of the
circumstances in which Landlord's withholding of consent to an assignment or
subletting shall not be unreasonable, it shall not be unreasonable for
Landlord to withhold its consent if the reputation, financial responsibility,
or business of the proposed assignee or subtenant is unsatisfactory to
Landlord, or if Landlord deems such business to be not consonant with that of
other tenants in the Building, or if the intended use by the proposed
assignee or subtenant conflicts with any commitment made by Landlord to any
other tenant in the Building, or if in Landlord's judgement the assignment or
subletting will have financial consequences adverse to Landlord's interest,
or if the proposed assignee or subtenant shall be (i) a government or any
subdivision or agency thereof, (ii) a school, college, university or
educational institution of any type, whether for profit or non-profit or
(iii) an employment, recruitment or temporary help service or agency or (iv)
an existing or former tenant of the Project or any affiliate or guarantor
thereof who defaulted under any of its lease obligations to Landlord or any
affiliate of Landlord.
At least fifteen (15) days prior to any proposed subletting or
assignment, Tenant shall submit to Landlord a statement seeking Landlord's
consent and containing the name and address of the proposed subtenant or
assignee, the terms of the proposed sublease or assignment (including,
without limitation, the date upon which the assignee or subtenant is to take
possession and the amount of rent
-12-
that Tenant will be charging the proposed assignee or subtenant) and such
financial and other information with respect to the proposed assignee or
subtenant as Landlord reasonably may request. Landlord shall indicate its
consent or non-consent within eleven (11) days of its receipt of said
statement.
Contemporaneously with any request or proposal by tenant to sublet or
assign any part of this Lease, Tenant shall pay up to $750.00 all costs,
including reasonable attorneys' fees, incurred by Landlord or anticipated to
be incurred by Landlord, in connection with Landlord's investigation of any
financial or other information of the proposed assignee or subtenant.
Landlord may require that all or a portion of the costs or anticipated costs
be paid in advance by Tenant. The payment of such costs shall not obligate
Landlord in any way to consent to any proposed assignment or subletting nor
shall the amount of costs paid by Tenant be applied or used as a set-off to
any amounts due or to become due by Tenant to Landlord.
In addition to withholding its consent, Landlord shall have the
additional right, exercisable within such 15-day period, to terminate this
Lease in its entirety (where Tenant seeks to assign this Lease or sublet the
entire Premises) or as to that portion of the Premises which Tenant seeks to
sublet (where Tenant seeks to sublet only a portion of the Premises).
Landlord may exercise such right to terminate by giving written notice to
Tenant at any time prior to Landlord's written consent to such assignment or
sublease. In the event that Landlord exercises such right to terminate, the
termination shall be effective as of such date as Landlord may specify in its
notice which shall not be later than the later of (i) the proposed date for
possession by such assignee or subtenant, or (ii) 90 days after the date of
Landlord's notice of termination of Tenant. Further, to the extent Landlord
elects to exercise its termination rights as set forth above and Tenant has
improved the Premises, Landlord shall pay to Tenant on or before the date of
termination with regard to the applicable portion of the Premises, the
unamortized costs of Tenant's improvements (based on the square footage of
the Premises being terminated) calculated by amortizing the applicable
Tenant's costs of the improvements over the term of the Lease. The costs of
Tenant's improvements shall be determined by Landlord's receipt of third
party contractor's invoices previously paid by Tenant (and marked "paid in
full" by the applicable contractor) and shall exclude any improvements,
alterations or additions which were not approved by Landlord pursuant to the
terms of Paragraph 8 above or those items which Landlord notified Tenant
would be required to be removed at the end of the Term pursuant to said
Paragraph 8.
If Landlord fails to exercise its termination right and its right to
withhold its consent as set forth in the preceding paragraphs, Tenant shall
pay to Landlord 50% of all profit derived by Tenant from the assignment or
sublease. Whenever requested by Landlord, Tenant shall furnish Landlord with
a sworn statement, certified by an independent certified public accountant,
setting forth in detail the computation of profit (which computation shall be
based upon generally accepted accounting principles), and Landlord, or its
representatives, shall have access to the books, records and papers of Tenant
in relation thereto, and to make copies thereof. Any rent in excess of that
paid by Tenant hereunder realized by reason of such assignment or sublease
shall be deemed an item of such profit. Such percentage of Tenant's profits
shall be paid to Landlord promptly by Tenant upon Tenant's receipt from time
to time of periodic payments from such assignee or subtenant or at such other
earlier time as Tenant shall realize its profits from such assignment or
sublease.
Landlord and Tenant further agree that Tenant shall not publish or
otherwise disseminate any written advertising material in connection with any
proposed assignment or sublease of all or any portion of the Premises (the
"Advertising") without Landlord's prior written approval of the same, which
approval shall not be unreasonably withheld; provided, however, that no
Advertising shall contain any reference to the price to be charged in
connection with any proposed assignment or sublease.
16. HOLDOVER. If Tenant or any person claiming through Tenant shall
retain possession of the Premises or any part thereof after the expiration or
earlier termination of the Term and if Landlord shall consent to such
continuation of possession, such possession shall be (unless the parties
hereto shall otherwise have agreed in writing) deemed to be under a
month-to-month tenancy which shall continue until either party shall notify
the other in writing, at least 30 days prior to the end of any calendar
month, that the party giving such notice elects to terminate such tenancy at
the end of such calendar month, in which event such tenancy shall so
terminate. Anything contained in the foregoing provisions of this paragraph
to the contrary notwithstanding, with respect to each such
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monthly period and in addition to other rent and charges due under this
Lease, Tenant shall pay rent equal to 1/9 of the per annum Base Rent and 1/12
of the Expense and Tax Adjustment Amount, and Additional Services Charge
(calculated in accordance with the provisions of Paragraph 4 hereof) which
would have been payable had this Lease been renewed until the end of the
calendar year which includes such month on the terms and conditions in effect
immediately prior to the expiration or termination of the Term; and such
month-to-month tenancy with Landlord's consent shall be upon the same terms
and subject to the same conditions as those which are set forth in this Lease
except as aforesaid. If Tenant or any person claiming through Tenant shall
retain possession of the Premises or any part thereof, after the expiration
or earlier termination of the term or of Tenant's right of possession, and if
such retention shall be without Landlord's consent, Tenant shall pay Landlord
(a) for each month or portion thereof during which such possession continues,
an amount equal to the rental to be paid for each month pursuant to the
foregoing provisions of this Paragraph when such possession is with
Landlord's consent, plus all other sums which would have been payable
hereunder had the term continued during such retention of possession and (b)
all other damages sustained by Landlord, whether direct or consequential, by
reason of such retention of possession. During any such retention of
possession without Landlord's consent, all of Tenant's obligations with
respect to the use, occupancy and maintenance of the Premises shall continue.
The provisions of this Paragraph 16 shall not be deemed to limit or
constitute a waiver of any other rights or remedies of Landlord provided
herein or at law or in equity and applicable to unlawful retention of
possession or otherwise.
17. ESTOPPEL CERTIFICATE. Tenant shall from time to time, within ten
days after Tenant's receipt of Landlord's request therefor, execute,
acknowledge and deliver to Landlord a written instrument in recordable form
(a) certifying (i) that this Lease is in full force and effect and has not
been modified, supplemented or amended in any way (or, if there have been
modifications, supplements or amendments thereto, that it is in full force
and effect as modified, supplemented or amended, and stating such
modifications, supplements and amendments) and that this Lease (as modified,
supplemented or amended, as aforesaid) represents the entire agreement among
Landlord and Tenant as to the Premises and the leasehold; (ii) the dates to
which the Base Rent, Additional Rent and other charges arising hereunder have
been paid, (iii) the amount of any prepaid rents or credits due to Tenant, if
any; and (iv) that if applicable, Tenant has entered into occupancy of the
Premises; and (b) stating, to the best knowledge of Tenant, whether or not
all conditions under the Lease to be performed by Landlord prior to the date
of such certificate have been satisfied and whether or not Landlord is then
in default in the performance of any covenant, agreement or condition
contained in this Lease and specifying, if any, each such unsatisfied
condition and each such default; and (c) stating any other fact or certifying
any other condition reasonably requested by Landlord, Landlord's Mortgagee (as
defined below), or any prospective mortgagee or purchaser of the Property or
of any interest therein.
18. SUBORDINATION.
(a) This Lease shall be subject and subordinate at all times to
the lien of any mortgage, deed of trust, or other security instrument, or
ground lease, master lease, or primary lease heretofore or hereafter placed
by Landlord on the Property or any part thereof and of all renewals,
modifications, consolidations, replacements and extensions thereof (all of
which are hereinafter referred to collectively as "Mortgage"), all
automatically and without the necessity of any further act on the part of
Tenant to effectuate such subordination. Tenant shall, at the request of the
holder of any Mortgage ("Landlord's Mortgagee"), upon foreclosure thereof
attorn to Landlord's Mortgagee. Tenant shall also execute, acknowledge and
deliver, within 15 days after Tenant's receipt of demand from Landlord or
Landlord's Mortgagee, such other instrument or instruments evidencing such
subordination of Tenant's right, title and interest under this Lease to the
lien of the Mortgage and such other instrument or instruments of attornment,
as shall be desired by Landlord's Mortgagee. With respect to any Mortgage
first encumbering the Building subsequent to the Commencement Date of the
Lease, upon Tenant's request, Landlord will use its good faith efforts to
cause Landlord's Mortgagee to agree that so long as Tenant is not in default
of its obligations under the Lease, the Lease will not be terminated and
Tenant's possession of the Premises will not be disturbed by the termination
or foreclosure, or proceeds for enforcement, of such Mortgage.
(b) Anything contained in the foregoing provisions of this
Paragraph 18 to the contrary notwithstanding, Landlord's Mortgagee may at any
time subordinate its Mortgage to this Lease, without the necessity of
obtaining Tenant's consent, by giving notice of the same in writing to
Tenant, and thereupon this Lease shall be deemed to be prior to the Mortgage
without regard to
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its date of execution, delivery, or recordation or the date of commencement
of Tenant's possession, and in that event Landlord's Mortgagee shall have the
same rights with respect to this Lease as though this Lease shall have been
executed, delivered and recorded prior to the execution and delivery of the
Mortgage.
(c) If Landlord is or becomes lessee of premises of which the
Premises are a part, Tenant agrees that, automatically and without the
necessity of any further act, Tenant's possession shall be as a subtenant and
shall be subordinate to the interest of Landlord's lessor, its heirs,
personal representatives, successors and assigns (which lessor, its heirs,
personal representatives, successors and assigns, or any of them, is
hereinafter called "Paramount Lessor"), but notwithstanding the foregoing, if
Landlord's tenancy shall terminate by expiration, by forfeiture or otherwise,
then Tenant hereby agrees, upon request of Paramount Lessor, to attorn to
Paramount Lessor, and to recognize such lessor as Tenant's landlord for the
balance of the term of this lease and any extensions or renewals hereof.
Tenant shall execute, acknowledge and deliver, upon demand by Landlord or
Paramount Lessor, such other instrument or instruments evidencing such
subordination of Tenant's right, title and interest under this Lease to the
interest of such lessor, and such other instrument or instruments of
attornment, as shall be prescribed by such lessor.
19. CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord shall have the
following rights, each of which Landlord may exercise without notice to
Tenant and without liability to Tenant for damage or injury to property,
person or business on account of the exercise thereof, and the exercise of
any such rights shall not be deemed to constitute an eviction or disturbance
of Tenant's use or possession of the Premises and shall not give rise to any
claim for set-off or abatement of rent or any other claim:
(a) to change the Building's name or street address;
(b) to install, affix and maintain any and all signs on the
exterior and on the interior of the Building;
(c) to decorate or to make changes, repairs, alterations,
additions, or improvements, whether structural or otherwise (including
alterations in the configuration of, and elimination of, any common areas),
in and about the Building and Property or any part thereof, and for such
purposes to enter upon the Premises, and during the continuance of any of
said work, to temporarily close doors, entry ways, public space and corridors
in the Building and to interrupt or temporarily suspend services or use of
facilities; but Landlord shall endeavor to perform any such work in or about
the Premises so as to cause the minimum inconvenience to Tenant practicable
under the circumstances;
(d) to designate and approve all window coverings used in the
Building;
(e) to approve, disapprove or restrict the weight, size and
location or safes, vaults and other heavy equipment and articles in and about
the Premises and the Building so as not to exceed the live load per square
foot designated by the structural engineers for the Building, and to require
all such items and furniture and similar items to be moved into or out of the
Building and Premises only at such times and in such manner as Landlord shall
direct in writing. Tenant shall not install or operate machinery or any
mechanical devices of a nature not directly related to Tenant's ordinary use
of the Premises without the prior written consent of Landlord. Tenant's
movements of property into or out of the Building or Premises and within the
Building are entirely at the risk and responsibility of Tenant, and Landlord
reserves the right to require permits before allowing any property to be
moved into or out of the Building or Premises;
(f) to establish controls for the purpose of regulating all
property and packages, both personal and otherwise, to be moved into or out
of the Building and Premises and all persons using the Building after normal
office hours;
(g) to regulate delivery and service of supplies in order to
insure the cleanliness and security of the Premises and to avoid congestion
of the loading docks, receiving areas and freight elevators;
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(h) to show the Premises to prospective tenants at reasonable hours
during the last twelve months of the Term and, if vacated or abandoned, to show
the Premises at any time and to prepare the Premises for re-occupancy;
(i) to erect, use and maintain pipes, ducts, wiring and conduits, and
appurtenances thereto, in and through the Premises at reasonable locations; and
(j) to enter the Premises at any reasonable time to inspect the
Premises.
20. RULES AND REGULATIONS. Tenant shall, and shall cause all of its
subtenants and occupants, its and their agents, employees, invitees and
licensees to, observe faithfully, and comply strictly with, the rules and
regulations attached to this Lease as EXHIBIT "B", as they may be supplemented
and revised by Landlord from time to time, and such other rules and regulations
promulgated from time to time by Landlord, as in Landlord's judgment may be
desirable for the safety, care and cleanliness of the Building and the Premises,
or for the preservation of good order therein. Landlord shall not be liable to
Tenant for violation of such rules and regulations by, or for Landlord's failure
to enforce the same against, any other tenant, its subtenants and occupants and
its and their agents, employees, invitees or licensees, nor shall any such
violation or failure constitute, or be treated as contributing to, an eviction,
actual or constructive, or affect Tenant's covenants and obligations hereunder,
or allow Tenant to reduce, xxxxx or offset the payment of any rent under this
Lease.
21. REMEDIES.
(a) If default shall be made in the payment of any rent or any
installment thereof or in the payment of any other sum required to be paid by
Tenant under this Lease or under the terms of any other agreement between
Landlord and Tenant and such default shall continue for ten (10) days, or if
default shall be made in the observance or performance of any of the other
agreements, covenants or conditions in this Lease (or in any other agreement
between Landlord and Tenant) which Tenant is required to observe and perform and
such default shall continue for fifteen (15) days after written notice to
Tenant, or if the interest of Tenant in this Lease shall be levied on under
execution or other legal process; or
(b) if default shall be made by Tenant under that Denver Place Plaza
Tower Office Lease between Tenant and Landlord's affiliate Denver-Stellar
Associates Limited Partnership dated as of January 1, 1999 and any amendments
thereto (hereinafter referred to as the "Plaza Tower Lease");
(c) if Tenant becomes the subject of commencement of an involuntary
case under the federal bankruptcy law as now or hereafter constituted, or there
is filed a petition against Tenant seeking reorganization, arrangement,
adjustment or composition of or in respect of Tenant under the federal
bankruptcy law as now or hereafter constituted, or under any other applicable
federal or state bankruptcy, insolvency, reorganization or other similar law, or
seeking the appointment of a receiver, liquidator or assignee, custodian,
trustee, sequestrator (or similar official) of Tenant or any substantial part of
its property, or seeking the winding-up or liquidation of its affairs and such
involuntary case or petition is not dismissed within sixty (60) days after the
filing thereof, or if Tenant commences a voluntary case or institutes
proceedings to be adjudicated a bankrupt or insolvent, or consents to the
institution of bankruptcy or insolvency proceedings against it, under the
Federal bankruptcy laws as now or hereafter constituted, or any other applicable
Federal or state bankruptcy or insolvency or other similar law, or consents to
the appointment of or taking possession by a receiver or liquidator or assignee,
trustee, custodian, sequestrator (or other similar official) of Tenant or of any
substantial part of its property, or makes any assignment for the benefit of
creditors or admits in writing its inability to pay its debts generally as they
become due or fails to generally pay its debts as they become due or if Tenant
or its stockholders or board of directors or any committee thereof takes any
corporate action in contemplation, preparation or furtherance of or for any of
the occurrences, steps, procedures, proceedings or other items mentioned in this
subparagraph (b);
(d) Landlord may treat the occurrence of any one or more of the
foregoing events as a breach of this Lease, and thereupon at its option may,
without notice or demand of any kind to Tenant or any other person, have any one
or more of the following described remedies in addition to all other rights and
remedies provided at law or in equity or elsewhere herein:
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(i) At the option of Landlord, the whole balance of Rent,
charges and all other sums payable hereunder, whether or not payable as Rent,
for the entire balance of the Term, and any renewal or extension thereof, herein
reserved or agreed to be paid by Tenant, or any part of such rent, charges and
other sums, and also all or any costs and sheriff's, marshall's, constable's or
other official's fees and charges, whether chargeable to Landlord or Tenant,
shall be taken to be due and payable from Tenant and in arrears as if by the
terms of this Lease said balance of rent, charges and other sums and expenses
were on that date payable in advance; or
(ii) Landlord, by giving written notice to Tenant, may terminate
this Lease and the Term, in which event Landlord may immediately repossess the
Premises by legal proceedings, force or otherwise; or
(iii) Landlord, by giving written notice to Tenant, may terminate
Tenant's right of possession and may immediately repossess the Premises by legal
proceedings, force or otherwise, without terminating this Lease.
(iv) After reentry, retaking, repossessing or recovering of the
Premises, whether or not Landlord has terminated this Lease, Landlord may, but
shall be under no obligation to, relet the same or any portion thereof for such
rent and upon such terms as shall be deemed advisable by Landlord; and whether
or not Premises are relet, Tenant shall be liable for any loss of rent for such
period as would be the balance of the term of this Lease and any renewals
thereof plus the costs and expenses of reentry, retaking, repossession and
recovering, and of reletting and of redecorating, remodelling and making repairs
and alterations to the Premises for the purpose of reletting, the amount of such
liability to be computed monthly and paid by Tenant to Landlord at the end of
each month. Landlord shall in no event have any duty to relet the Premises, nor
shall any damages or other sums to be paid by Tenant to Landlord be reduced by
any failure to relet the Premises or failure to collect the rent from any
reletting. Tenant shall not be entitled to any rents received by Landlord in
excess of the rents provided for in this Lease. Tenant agrees that Landlord may
file suit to recover any sums falling due under the terms of this Paragraph 21
from time to time and that no suit or recovery of any portion due Landlord
hereunder shall be any defense to any subsequent action brought for any amount
not theretofore reduced to judgment in favor of Landlord. If Landlord relets the
Premises, such reletting shall not be considered a termination of this Lease
unless Landlord has given Tenant a notice wherein Landlord expressly states that
this Lease is terminated.
(v) If Landlord shall terminate this Lease as provided in
subparagraph (b) above, Landlord, at its option, shall be entitled to recover as
damages the excess, if any, at the time of such termination, of the amount of
the Base Rent payable under this lease for the balance of the term of this Lease
(including, any extension options which have been exercised) over the then fair
rental value of the Premises for the same period, plus all costs and expenses of
Landlord caused by Tenant's default, including, but not limited to, reasonable
attorney's fees.
If any payment of Rent or any other sum, or any part of any such
payment, to be made by Tenant under the terms of this Lease shall become
overdue for a period in excess of five (5) days Tenant shall pay to Landlord
(x) a "late charge" of $.05 for each dollar so overdue, for the purpose of
defraying the expense incident to handling such overdue or delinquent
payment, and (y) interest on the overdue amount at the Lease Interest Rate
(defined below) from the date when such payment was due until the date paid,
but in no event more than the amount or rate which is the maximum amount or
rate Landlord may lawfully charge in respect of Tenant in such circumstances
under applicable law. The "Lease Interest Rate" shall mean the greater of 18%
per annum or such variable rate which is from time to time equal to 3% above
the prime rate as stated by US Bank, Denver, Colorado or its successor, or,
in the absence of there being a successor to US Bank, by such other bank
having an office in the City of Denver, as Landlord may from time to time
select. Nothing herein shall be construed as waiving any rights of Landlord
arising out of any default of Tenant by reason of Landlord's accepting any
such late charge or interest; the right to collect a late charge and interest
is separate and apart from any other rights or remedies of Landlord after
default by Tenant.
Without limiting the generality of the foregoing, if Tenant shall be in
default in the performance of any of its obligations hereunder, Landlord may
(but shall not be obligated to), in addition to any other rights it may have in
law or in equity, cure such default on behalf of Tenant, and Tenant shall
reimburse Landlord upon demand for any sums paid or costs incurred by Landlord
in
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curing such default, including reasonable attorneys' fees and other legal
expenses, together with interest at the Lease Interest Rate from the dates of
Landlord's incurring of costs or expenses.
All remedies available to Landlord hereunder and otherwise available at law
or in equity shall be cumulative and concurrent. No termination of this Lease
nor taking or recovering possession of the Premises shall deprive Landlord of
any remedies or actions against Tenant for Rent, for charges, or for damages for
the breach of any term, covenant or condition herein contained, nor shall the
bringing of any such action for Rent, charges or breach of term, covenant or
condition, nor the resort to any other remedy or right for the recovery of Rent,
charges or damages for such breach be construed as a waiver or release of the
right to insist upon the forfeiture and to obtain possession. The failure of
Landlord to insist upon strict or prompt performance of the terms, agreements,
covenants and conditions of this Lease or any of them, or the acceptance of such
performance thereafter shall not constitute or be construed as a waiver of
Landlord's right to thereafter enforce the same strictly according to the tenor
thereof in the event of a continuing or subsequent default.
Notwithstanding anything in this Paragraph 21 or any other provision of
this Lease to the contrary, this Lease shall not be terminated by service upon
Tenant of a notice from Landlord demanding payment of Rent or possession of the
Premises following default by Tenant, or by any action of Tenant to vacate the
Premises following receipt of such a notice, unless the notice served by
Landlord includes a statement expressly terminating this Lease. Further,
Landlord reserves the right to receive payment of all unaccrued Rent for the
balance of the Term originally contemplated under Paragraph 1 of this Lease (and
any extensions or renewals thereof to which Tenant shall have become bound)
following service of such a notice for payment or possession, or a notice
terminating this Lease for Tenant's default.
22. EXPENSES OF ENFORCEMENT. Tenant shall pay upon demand all Landlord's
costs, charges and expenses, including the fees and out-of-pocket expenses of
counsel, agents and others retained by Landlord, incurred by Landlord, whether
or not suit is brought, in enforcing Tenant's obligations hereunder or in
collecting any amounts due from Tenant or any subtenant or assignee hereof or in
enforcing any provision of this Lease or in any litigation, negotiation or
transaction in which Tenant causes Landlord without Landlord's fault to become
involved or concerned or in reletting the Premises or any portion thereof after
default by Tenant.
23. COVENANT OF QUIET ENJOYMENT. Landlord covenants that Tenant, on paying
the Rent, charges for services and other payments herein reserved or required
and on keeping, observing and performing all the other terms, covenants,
conditions, provisions and agreements herein contained on the part of Tenant to
be kept, observed and performed, shall, during the Term, peaceably and quietly
have, hold and enjoy the Premises free from interference by Landlord or any
person claiming by, from or under Landlord, subject, however, to the terms,
covenants, conditions, provisions and agreements hereof.
24. SECURITY DEPOSIT. INTENTIONALLY DELETED.
25. REAL ESTATE BROKER. Landlord and Tenant acknowledge and agree that:
(i) Landlord has been represented in connection with this Lease by Agent as
Landlord's agent and by Xxxxx X.X. Xxxx, Broker, Ltd. ("Xxxx") as Landlord's
subagent, and (ii) Tenant has been represented in connection with this Lease
by Xxxxxxx Realty Corporation (Xxxx X. Xxxxxx) ("Xxxxxxx") as Tenant's agent.
Tenant agrees to indemnify, defend and hold Landlord harmless from and
against any claims, for a commission or other compensation in connection with
this Lease, made by any broker or finder (other than Agent, Xxxx and Xxxxxxx)
who claim to have dealt with or communicated to Tenant in connection with
this Lease, provided that Landlord has not in fact retained such broker or
finder. Landlord agrees to indemnify, defend and hold Tenant harmless from
and against any claims, for a commission or other compensation in connection
with this Lease, made by any broker or finder who claim to have dealt with or
communicated to Landlord in connection with this Lease, provided that Tenant
has not in fact retained such broker or finder.
26. MISCELLANEOUS
(a) RIGHTS CUMULATIVE. All rights and remedies of Landlord under this
Lease shall be cumulative and none shall exclude any other rights or remedies
allowed by law, in equity or otherwise.
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(b) CAPTIONS AND USAGE. The titles appearing in connection with the
various sections and paragraphs of this lease are for convenience only; they
are not intended to indicate all of the subject matter in the text and they
are not to be used in interpreting this Lease nor for any other purpose in
the event of any controversy. As used herein (i) the term "person" shall be
deemed to include a natural person, a trustee, a corporation, a partnership, a
governmental unit and any other form of legal entity; (ii) all usages in the
singular or plural number shall be deemed to have been made, respectively, in
the plural or singular number as well; the use of any gender includes all
genders.
(c) BINDING EFFECT. Each of the provisions of this Lease shall
extend to and shall, as the case may require, bind or inure to the benefit
not only of Landlord and of Tenant, but also of their respective successors or
assigns, provided this clause shall not permit any assignment by Tenant
contrary to the provisions of Paragraph 15 hereof.
(d) LEASE CONTAINS ALL TERMS. There are no promises,
representations, warranties or undertakings by, or binding upon, Landlord
with respect to the Building, the Premises or the Real Property, including,
but not limited to, any with regard to alteration, remodeling, redecorating
or installation of equipment or fixtures in the Premises, except those, if
any, that are expressly set forth in this Lease. No modification, waiver or
amendment of this Lease or of any of its conditions or provisions shall be
binding upon Landlord unless in writing signed by Landlord or by a duly
authorized agent of Landlord empowered by a written authority signed by
Landlord.
(e) SUBMISSION OF LEASE. The submission of this Lease to Tenant, or
its broker or other agent, does not constitute an offer to Tenant to lease
the Premises. This Lease shall have no force and effect until this Lease is
signed by both Landlord and Tenant and delivery is made to each.
(f) NO AIR RIGHTS. No rights to any view or to light or air over
any property, whether belonging to Landlord or any other person, are granted
to Tenant by this Lease.
(g) MODIFICATION OF LEASE. If any lender requires, as a condition
to its lending funds, the repayment of which is to be secured by a mortgage
or trust deed on the Property or any part thereof, that certain modifications
be made to this Lease, which modifications will not require Tenant to pay any
additional amounts or otherwise change materially the rights or obligations
of Tenant hereunder, Tenant shall, upon Landlord's request, execute
appropriate instruments effecting such modifications.
(h) SUBSTITUTION OF OTHER PREMISES.
(i) Subject to the provisions of subparagraph (v) below, at
any time hereafter, Landlord shall have the right to substitute for the
premises then being leased or to be leased hereunder (the "Existing
Premises") other premises within the Building (herein referred to as the "New
Premises") provided that the New Premises shall be of at least substantially
the same size and configuration as the Existing Premises and the New Premises
shall have a comparable elevator identity, similar tenant finish and similar
view and corner location within the Building.
(ii) If Tenant shall not have received possession of the
Existing Premises, then, as of the date Landlord gives notice of a
substitution, such substitution shall be effective, the New Premises shall be
the Premises hereunder and the Existing Premises shall cease to be the
Premises hereunder.
(iii) The provisions of this subparagraph (iii) shall apply
if Tenant shall have already received possession of the Existing Premises as
of the date Landlord gives notice of substitution. Tenant shall vacate and
surrender the Existing Premises not later than the later of the thirtieth
(30th) day after the date that Landlord shall notify Tenant of Landlord's
intent to make the substitution in question or the fifteenth (15th) day after
Landlord shall have substantially completed the work to be done by Landlord
in the New Premises pursuant to this subparagraph (iii). As of the sooner of
such 15th day or the date of such surrender and vacation, the New Premises
shall be the Premises leased under this Lease and the Existing Premises shall
cease to be the Premises leased under this Lease. Landlord shall (A) pay the
actual and reasonable out-of-pocket expenses of Tenant's moving of its
property from the Existing Premises to the New Premises, (B) shall improve
the New Premises so that they are substantially similar to the Existing
Premises and (C) promptly
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reimburse Tenant for its actual and reasonable out-of-pocket costs in
connection with (i) the relocation of any telephone or other communications
equipment from the Existing Premises to the New Premises, and (ii) the
replacement of a reasonable stock of stationery, letterhead, etc. which bears
the suite number of the Premises. However, instead of only paying the
expenses of Tenant's moving of its property, Landlord may elect to either
move Tenant's property or provide personnel to do so under Tenant's
direction, in which event such move may not be made except during evenings,
weekends or holidays, so as to incur the least inconvenience to Tenant.
(iv) Tenant shall not be entitled to any compensation for any
inconvenience or interference with Tenant's business, nor to any abatement or
reduction in rent, nor shall Tenant's obligations under this Lease be
otherwise affected, as a result of the substitution except as otherwise
provided in this subparagraph (h). Tenant agrees to cooperate with Landlord
so as to facilitate the prompt completion by Landlord of its obligations
under this subparagraph (h). Without limiting the generality of the preceding
sentence, Tenant agrees to provide to Landlord promptly such approvals,
instructions, plans, specifications or other information, as may be
reasonably requested by Landlord.
(i) TRANSFER OF LANDLORD'S INTEREST. Notwithstanding anything
contained herein to the contrary, Tenant agrees that neither Landlord nor any
partner in Landlord, nor any other person having any interest, direct or
indirect, immediate or more removed than immediate, in Landlord, shall have
any personal liability with respect to any of the provisions of this Lease and
Tenant shall look solely to the estate and property of Landlord in the
Property for the satisfaction of Tenant's remedies, including without
limitation, the collection of any judgment or the enforcement of other
judicial process requiring the payment or expenditure of money by Landlord,
subject, however, to the prior rights of any holder of any mortgage covering
all or part of the Property, and no other assets of Landlord or its partners,
or of any other aforesaid person having an interest in Landlord, shall be
subject to levy, execution or other judicial process for the satisfaction of
Tenant's claims. Without limitation of the foregoing, upon each transfer of
the Building and Landlord's interest in this Lease, the transferor shall
automatically be released from all liability and obligations under this Lease
which shall accrue after the date of the transfer.
(j) RECORDING; SHORT FORM MEMO. This Lease shall not be recorded by
Tenant. If it is recorded by Tenant, Landlord shall have the right to
terminate this Lease as of the date of recording or thereafter and Landlord
shall have all rights and remedies provided in the case of default by Tenant
hereunder. If requested by Landlord, Tenant shall execute, in recordable
form, a short form memorandum of lease that may, at Landlord's option, be
placed of record. In addition, if requested by Landlord, Tenant shall execute
a memorandum of lease to be filed with the Colorado Department of Revenue, on
such form as may be prescribed by said Department, within ten days after the
execution of this Lease, or any other such memorandum, so that Landlord may
avail itself of the provision of statutes such as C.R.S. Section
39-22-604(7)(c).
(k) COVENANTS AND CONDITIONS. All of the covenants of Tenant
hereunder shall be deemed and construed to also be "conditions", if Landlord
so elects, as well as "covenants" as though the words specifically expressing
or importing covenants and conditions were used in each separate instance.
Tenant's covenants to pay rent are independent of any other covenant,
agreement, term or condition of this Lease.
(l) APPLICATION OF PAYMENTS. Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease (regardless of Tenant's
designation of such payments) to satisfy any obligations of Tenant hereunder,
in such order and amounts as Landlord in its sole discretion, may elect;
provided, however, Landlord agrees that such payments shall be applied first
to Tenant's Base Rent.
(m) SECURITY INTEREST. INTENTIONALLY DELETED.
(n) GOVERNING LAW; PARTIAL INVALIDITY. This Lease shall be governed
and construed in accordance with the law of the state in which the Premises
is located. If any term, provision of condition contained in this Lease
shall, to any extent, be invalid or unenforceable, the remainder of this
Lease (or the application of such term, provision or condition to persons or
circumstances other than those in respect of which it is invalid or
unenforceable) shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
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(o) HAZARDOUS MATERIALS. Tenant shall not store highly flammable
materials or goods, explosives, perishable foodstuffs, contraband, live
animals, materials or goods which emit odors in or upon the Premises. The
Tenant covenants that it shall not store, use or possess nor permit the
storage, use or possession of any Hazardous Substance (hereinafter defined)
upon the Premises. Hazardous Substance for purposes of this Lease shall mean,
without limitation, any flammable explosives, radon, radioactive materials,
asbestos, urea-formaldehyde foam insulation, polychlorinated biphenyls,
petroleum and petroleum based products, methane, hazardous materials,
hazardous wastes, hazardous or toxic substances or related materials, as
defined in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Sections 9601, et seq.
(including the so-called "Superfund" amendments thereto); the Toxic
Substances Control Act, as amended, 15 U.S.C. Sections 2601, et seq.; the
Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C.
Sections 6901, et seq.; the Hazardous Materials Transportation Act, as
amended, 49 U.S.C. Sections 5101, et seq. (formerly 49 U.S.C. 1801, et seq.);
or any other similar law, rule, regulation or statute concerning the
protection of the environment (collectively "Environmental Laws"). Tenant
hereby covenants and agrees, at its sole cost and expense, to indemnify,
protect and defend and save harmless the Landlord and any of its members,
managers, employees and agents from and against any and all damages, losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
judgments, suits, actions, proceedings, costs, disbursements and expenses
(including, without limitation, attorneys' and experts' fees, expenses and
disbursements) of any kind or nature whatsoever which may at any time be
imposed upon, incurred by or asserted or awarded against the Landlord, its
members, managers, agents or employees relating to, resulting from or arising
out of Tenant's failure to comply with its obligations under the foregoing
section or Tenant's violation of any Environmental Law with respect to its
use of the Premises. Notwithstanding any provision contained in this Lease to
the contrary, the indemnification provisions set forth in this subparagraph
26(o) shall survive any expiration or termination of this Lease.
(p) WARRANTY DISCLAIMER. LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY
IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED
COMMERCIAL PURPOSE, AND TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS NOT
DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD
OF ITS OBLIGATIONS HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN, TENANT SHALL CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, SETOFF OR
DEDUCTION, NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR
OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
(q) WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT SHALL, AND HEREBY
DO, WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY
EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTERS WHATSOEVER
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE LEASE, THE RELATIONSHIP OF
LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, AND ANY
EMERGENCY STATUTORY OR ANY OTHER STATUTORY REMEDY.
(r) FORCE MAJEURE. Other than for Tenant's obligations under this
Lease that can be performed by the payment of money (e.g., payment of Rent and
maintenance of insurance), whenever a period of time is herein prescribed for
action to be taken by either party hereto, such party shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations, or restrictions, or
any other causes of any kind whatsoever which are beyond the control of such
party.
(s) LIST OF EXHIBITS. All exhibits and attachments hereto are
incorporated herein by this reference:
Addendum
Exhibit A Premises
Exhibit B Rules and Regulations
Exhibit C Lease Term Agreement
Exhibit D Parking Agreement
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27. TELEPHONE AND TELECOMMUNICATIONS SERVICE.
(a) Tenant acknowledges and agrees that all telephone and
telecommunications services ("Telecommunications Services") desired by Tenant
shall be ordered and utilized at the sole expense of Tenant. Unless Landlord
otherwise requests or consents in writing, all equipment, apparatus and devices,
including without limitation wiring and cables, for the provisions of
Telecommunications Services (the "Telecommunications Equipment") shall be and
remain solely in the Premises. Unless otherwise specifically agreed in writing,
Landlord shall have no responsibility for the maintenance of Tenant's
Telecommunications Equipment, nor for any wiring or other infrastructure to
which Tenant's Telecommunications Equipment may be connected. Tenant agrees
that, to the extent any Telecommunications Services are interrupted, curtailed
or discontinued, Landlord shall have no obligation or liability with respect
thereto and it shall be the sole obligation of Tenant, at its sole expense, to
obtain substitute service.
(b) Landlord shall have the right, upon such notice as is
practicable in the case of emergencies, and otherwise upon reasonable prior
notice to Tenant, to interrupt or turn off telecommunications facilities in the
event of emergency or as necessary in connection with repairs to the Building or
installation of telecommunications equipment for other tenants of the Building.
(c) Any and all Telecommunications Equipment installed in the
Premises, or elsewhere in the Building by or on behalf of Tenant, including
wiring and other facilities for the provision of Telecommunications Services,
shall be removed by Tenant upon the expiration or earlier termination of the
Term of this Lease, by Tenant at its sole expense or, at Landlord's election, by
Landlord at Tenant's sole expense, with the cost thereof to be paid as
Additional Rent under this Lease.
(d) If the Telecommunications Equipment is not removed within
thirty (30) days of the termination or expiration of this Lease, the
Telecommunications Equipment shall conclusively be deemed to have been abandoned
and may be removed, appropriated, sold, stored, destroyed, otherwise disposed
of, or retained and used, by Landlord without notice to Tenant, without
obligation to account therefor, and without payment to Tenant or credit against
any amount due from Tenant to Landlord pursuant to this Lease. Tenant shall pay
to Landlord upon demand all costs of any such removal, disposition and storage
of the Telecommunications Equipment, as well as all costs to repair any damage
to the Building caused by such removal.
(e) In the event that Tenant wishes at any time to utilize the
services of a telephone or telecommunications provider whose equipment is not
then servicing the Building (a "New Provider"), no such New Provider shall be
permitted to install its lines or other equipment within the Building without
first securing the prior written approval of Landlord, which approval may be
withheld in Landlord's sole and absolute discretion. Landlord's approval shall
not be deemed any kind of warranty or representation by Landlord, including,
without limitation, any warranty or representation as to the suitability,
competence or financial strength of the New Provider. Without limitation of
Landlord's right to withhold consent in its sole and absolute discretion,
Landlord may refuse to give its approval unless all of the following conditions
are satisfied: (i) Landlord shall incur no expense whatsoever with respect to
any aspect of the New Provider's provision of its services, including, without
limitation, the costs of installation, materials and services; (ii) prior to
commencement of any work in or about the Building by the New Provider, the New
Provider shall supply Landlord with such written indemnities, insurance,
financial statements, and such other items as Landlord, in its sole and absolute
discretion, determines to be necessary to protect its financial interests and
the interests of the Building related to the proposed activities of the New
Provider; (iii) the New Provider agrees in writing to abide by such rules and
regulations, building and other codes, job site rules and such other
requirements as are determined by Landlord, in its sole and absolute discretion,
to be necessary to protect the interest of the Building, the tenants in the
Building and Landlord; (iv) Landlord determines, in its sole and absolute
discretion, that there is sufficient space in the Building for the placement of
all of the New Provider's equipment and materials; (v) Landlord receives from
the New Provider such compensation as is determined by Landlord, in its sole and
absolute discretion, to compensate it for space used in the Building for the
storage and maintenance of the New Provider's equipment, for the fair market
value of the New Provider's access to the Building, and any costs which may be
expected to be incurred by Landlord; and (vi) all of the foregoing matters are
documented in a written agreement between Landlord and the New Provider, the
form and content of which are satisfactory to Landlord in its sole and absolute
discretion.
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(f) Notwithstanding any provision of the preceding subparagraph
to the contrary, the refusal of Landlord the grant its approval to any New
Provider shall not be deemed a default or breach by Landlord of its obligation
under this Lease, and in no event shall Tenant have the right to terminate this
Lease or claim entitlement to rent abatement for Landlord's refusal to grant
Tenant's request for approval of a New Provider. The provisions of this
Paragraph 27 may be enforced solely by Tenant and Landlord and are not for the
benefit of any other party. Specifically, but without limitation, no telephone
or telecommunications provider is intended to be, nor shall be deemed, a third
party beneficiary of this Lease.
(g) Tenant shall not utilize any wireless communications
equipment (other than usual and customary cellular telephones), including
antenna and satellite receiver dishes, within the Premises or the Building,
without Landlord prior written consent. Such consent shall be granted only in
the sole and absolute discretion of Landlord, and shall be conditioned in such a
manner, in Landlord's sole and absolute discretion, so as to protect Landlord's
financial interests and the interests of the Building, and the other tenants
therein.
28. NOTICES. All notices to be given under this Lease shall be in
writing and delivered personally or deposited in the United States mail,
certified or registered mail with return receipt requested, postage prepaid or
by reputable overnight courier, addressed as follows:
If to Landlord: Amerimar Realty Management Co.-Colorado
000 - 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
with a copy to: Denver Place Associates Limited Partnership
000 Xxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
or to such other person or such other address designed by notice sent by
Landlord or Tenant.
If to Tenant: JATO Communications Corp.
0000 - 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Notice by mail shall be deemed to have been given seventy-two (72)
hours after being deposited in the United States mail or the following Business
Day after deposit with a reputable overnight carrier.
29. TIME IS OF THE ESSENCE. Time is of the essence hereof.
IN WITNESS WHEREOF, Landlord and Tenant, intending to be legally bound
hereby, have executed this Agreement of lease as of the day and year first above
written.
LANDLORD:
DENVER PLACE ASSOCIATES LIMITED PARTNERSHIP, a
Delaware limited partnership
By: ARC Denver Associates, L.L.C., a Delaware
limited liability company, its general partner
By: ARC Denver, Inc., a Delaware corporation,
its manager
By
---------------------------------------
Xxxxx X. Xxxxxxxx, President
TENANT:
JATO COMMUNICATIONS CORP., a Delaware corporation
By:
-------------------------------------------------------
(Title)
-23-
ADDENDUM
THIS ADDENDUM, made as of the 29th day of September, 1999, is between
Amerimar Realty Management Co.-Colorado, as agent for DENVER PLACE ASSOCIATES
LIMITED PARTNERSHIP, a Delaware limited partnership ("Landlord") JATO
COMMUNICATIONS CORP., a Delaware corporation ("Tenant"). Landlord and Tenant
have executed simultaneously with this Addendum that certain Denver Place
Office Lease (the "Lease") pertaining to certain space in the building
commonly known as Denver Place and located at 000 - 00xx Xxxxxx, Xxxxxx,
Xxxxxxxx. In the event of any conflict between the provisions of this
Addendum and the provisions of the other portions of the lease, the
provisions of this Addendum shall control. The capitalized terms used herein
and not defined herein shall have the same meanings used in the other
portions of the Lease. Landlord and Tenant hereby agree that the Lease is
amended and supplemented as follows:
30. TENANT'S TERMINATION OPTION. Provided that (i) Tenant is not in
default under this Lease, and (ii) Tenant has exercised its First Right of
Refusal pursuant to the provisions of Paragraph 6(a) of the First Amendment
of the Plaza Tower Lease to add not less than [A] 13,106 square feet of
rentable area if Tenant has not exercised either the Partial Termination
Option under the Plaza Tower Lease or [B] 17,606 square feet of rentable area
if Tenant has exercised either the Partial Termination Option under the Plaza
Tower Lease (such area being herein referred to as the "Twenty-First Floor
Premises") located upon the twenty-first (21st) floor of Plaza Tower to the
Premises described in the Plaza Tower Lease on or before July 31, 2000
("Partial Termination Date"), Tenant shall have the option ("Termination
Option") to terminate this Lease as of the later of October 31, 2000 or the
date the Twenty-First Floor Premises are ready for Tenant's occupancy (such
date is herein referred to as the "Early Termination Date"), provided that
the Tenant delivers written notice of its intent to exercise said option
("Termination Notice") to the Landlord on or before the Termination Date. In
the event Tenant has not delivered the Termination Notice to Landlord on or
before the Termination Date, Tenant's Termination Option shall be deemed to
have expired.
LANDLORD:
DENVER PLACE ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Amerimar Realty Management Co.-Colorado
By: Amerimar Realty Management Co.-
Pennsylvania, its general partner
By: ARC-Management Co., Inc., its
general partner
Date: __________________ By _______________________________
Xxxxx X. Xxxxxxxx, President
TENANT:
JATO COMMUNICATIONS CORP., a Delaware
corporation
Date: __________________ By _______________________________
(Title)
EXHIBIT A
PREMISES
EXHIBIT B
RULES AND REGULATIONS
Rules and Regulations, to Lease between DENVER PLACE ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership, as Landlord ("Landlord") and
JATO COMMUNICATIONS CORP., a Delaware corporation ("Tenant") pertaining to
certain space in Denver Place, 000 - 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
1. Any sign, lettering, picture, notice or advertisement installed
within the Premises which is visible to the public from within the Building
shall be installed at Tenant's cost and in such manner, character and style
as Landlord may approve in writing. No sign, lettering, picture, notice or
advertisement shall be placed on any outside window or in any position so as
to be visible from outside the Building.
2. The use of the name of the Building or of pictures or illustrations
of the Building in advertising or other publicity, without prior written
consent of Landlord, is prohibited.
3. Tenant, its subtenants and its and their customers, invitees,
licensees, and guests
a. shall not obstruct and shall not use for any purpose other than
ingress and egress, the sidewalks, entrances, passages, corridors,
vestibules, halls, elevators and stairways in and about the Building;
b. shall not place objects against glass partitions or doors or
windows or adjacent to any open common space which would be unsightly
from the Building corridors or from the exterior of the Building, and
will promptly remove the same upon notice from Landlord;
c. shall not make noises, cause disturbances, create vibrations,
odors or noxious fumes or use or operate any electrical or electronic
devices or other devices that emit sound waves or are dangerous to other
tenants and occupants of the Building or that would interfere with the
operation of any device or equipment or radio or television broadcasting
or reception from or within the Building or elsewhere, and shall not
place or install any projections, antennae, aerials or similar devices
inside or outside of the Premises;
d. shall not make any room-to-room canvass to solicit business
from other tenants in the Building, and shall not exhibit, sell or offer
to sell, use, rent or exchange any item or services in or from the
Premises unless ordinarily embraced within the Tenant's use of the
Premises as specified in its Lease;
e. shall refrain from attempting to adjust any controls;
f. shall not waste, and shall not suffer or permit to be wasted,
electricity or water and shall cooperate fully with Landlord to assure
the most effective operation of the Building's heating and air
conditioning;
g. shall keep public corridor doors closed;
h. shall neither install nor operate machinery or any mechanical
devices of a nature not directly related to Tenant's ordinary use of the
Premises without the written permission of the Landlord;
i. shall not use rest rooms or water fixtures for any purpose
other than that for which they are designed;
j. shall not xxxx upon, paint, cut, drill into, drive nails or
screws into, or in any way deface the walls, ceiling partitions or
floors of the Premises or of the Building;
k. shall not unduly obstruct any pipes, conduits and ducts in the
Premises; and
l. shall use chair pads, to be furnished by Tenant, under all
rolling and ordinary desk chairs in the carpeted areas.
4. Tenant assumes full responsibility for protecting its space from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured.
5. Peddlers, solicitors and beggars shall be reported to the office of
the Building or as Landlord otherwise requests.
6. No person or contractor not employed by Landlord shall be used to
perform window washing, cleaning, or other work in the Premises.
7. Unless Landlord so consents, Tenant shall not, and Tenant shall not
permit or suffer anyone to:
x. Xxxx in the Premises;
b. Place vending or dispensing machines of any kind in the
Premises;
c. At any time sell, purchase or give away, or permit the sale,
purchase or gift of, food in any form; or
d. Use the Premises for lodging or for any immoral or illegal
purposes.
e. Use the Premises to engage in the manufacture or sale of, or
permit the use of, any spirituous, fermented, intoxicating or alcoholic
beverages on the Premises.
f. Use the Premises to engage in the manufacture or sale of, or
permit the use of, any illegal drugs.
8. No furniture shall be placed in front of the Building or in any
lobby or corridor, without the prior written consent of Landlord. Landlord
shall have the right to remove all non-permitted signs and furniture, without
notice to Tenant, at Tenant's expense.
9. No animals are allowed in the Building.
10. No lock or other security device shall be placed by Tenant on any
door in the Building without the Building manager being kept furnished with
two of the keys, cards or other means of access therefore. At the termination
of its tenancy, Tenant shall promptly deliver to Landlord all keys, entry
cards and other means of access to offices, rest rooms and vaults.
11. The use of oil, gas or inflammable liquids for heating, lighting,
or any other purpose is expressly prohibited. Explosives or other hazardous
articles shall not be brought into the Building.
12. Electric floor space heaters, humidifiers or A/C fans are not
permitted.
13. a. Landlord shall have the right to approve or disapprove the
movers or moving company employed by Tenant. Tenant shall cause said
movers to use only the loading facilities and elevator designated by
Landlord. In the event Tenant's movers damage the elevator or any part
of the Building, Tenant shall forthwith pay to Landlord the amount
required to repair said damage.
b. Furniture, equipment and supplies shall be moved in or out of
the Building only during such hours and in such manner as may be
prescribed by Landlord.
c. No safe or article, the weight of which may constitute a hazard
or danger to the Building or its equipment shall be moved into the
Premises.
d. Safes and other equipment, the weight of which is not excessive
shall be moved into, from or about the Building only during such hours
and in such manner as shall be prescribed by Landlord, and Landlord
shall have the right to designate the location of such articles in the
Premises.
14. Smoking shall not be permitted in any common areas of the Building
(including but not limited to the parking garage, elevator lobbies,
elevators, public corridors and restrooms), or within three feet of the
exterior entrance to any doorway or entryway of the Building. Smoking shall
only be permitted in those areas of the Retail Mall which have been
designated as public smoking areas.
15. Roller skates, bicycles or other vehicles shall not be permitted in
the offices, halls, common areas, or corridors in the Building. All vehicles
shall use designated parking meters.
16. No window shades, blinds, screens, draperies or other window
coverings will be attached or detached by Tenant without Landlord's prior
written consent. Tenant agrees to abide by Landlord's rules with respect to
maintaining uniform curtain, draperies and/or linings at all windows and
hallways.
17. If Tenant desires telegraphic, telephonic, computer or other
electric connections, Landlord, or its agents, will direct the electricians
as to where and how the wires may be introduced, and without such directions,
no boring or cuttings for wires will be permitted. Any such installation and
connection shall be made at Tenant's expense, and, at Landlord's option,
shall be removed at Tenants expense at the expiration or termination of its
Lease.
18. Landlord reserves the right to modify and make such other and
further reasonable rules and regulations as in its judgment may, from time to
time, be needful and desirable for the safety, security, care and cleanliness
of the Premises and preservation of good order therein.
EXHIBIT C
LEASE TERM AGREEMENT
THIS AGREEMENT, made as of the 29th day of September, 1999, between
DENVER PLACE ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership
(hereinafter referred to as "Landlord") and JATO COMMUNICATIONS CORP., a
Delaware corporation (hereinafter referred to as "Tenant").
W I T N E S S E T H
WHEREAS, by Lease (hereinafter called "Lease") made the 29th day of
September, 1999, Landlord leased unto Tenant certain premises known as Suite
Number 2600, located at 000 - 00xx Xxxxxx, Xxxxxx, Xxxxxxxx, for a term of
_____ (____) years, _____ (____) months and _____ (____) days commencing on
______________, 1999, unless sooner terminated or extended as provided
therein, and
WHEREAS, Landlord and Tenant now desire to set forth the correct
Commencement Date of the term and to adjust the Expiration Date of the Term
to provide for a full term of the Lease of _____ years, _____ months and
_____ days.
NOW, THEREFORE, Landlord and Tenant do hereby agree as follows:
1. The Term of the Lease commenced on _____________ 19___, and shall
continue until ___________________, unless sooner terminated or
extended as provided therein.
2. Except as hereby amended, the Lease shall continue in full force and
effect.
3. This Agreement shall be binding on the parties hereto, their heirs,
executors, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
LANDLORD:
DENVER PLACE ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Amerimar Realty Management Co.-Colorado
By: Amerimar Realty Management Co.-
Pennsylvania, its general partner
By: ARC-Management Company, its
general partner
Date: ______________________ By: _______________________________________
Xxxxx X. Xxxxxxxx, President
TENANT:
JATO COMMUNICATIONS CORP., a Delaware
corporation
Date: ______________________ By: _______________________________________
(Title)
EXHIBIT D
PARKING AGREEMENT
DENVER PLACE ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited
partnership, by Amerimar Realty Management Co.-Colorado, as agent for
Landlord, and JATO COMMUNICATIONS CORP., a Delaware corporation, as Tenant,
have executed simultaneously with this Agreement a Lease (hereinafter called
"Lease") pertaining to certain space at 000 - 00xx Xxxxxx to be occupied by
Tenant. In consideration of the mutual covenants herein contained, Landlord
and Tenant further agree as follows:
The Building in which the Premises are located contains a parking garage
for the benefit of Tenants and the general public (hereinafter called
"Parking Garage"). Landlord does not operate or manage the Parking Garage,
but maintains a management agreement with an independent contractor
(hereinafter called "Operator") for the management and operation of the
Parking Garage. In order to rent parking spaces in the Parking Garage, Tenant
must contract separately with the Operator for such rentals. Landlord shall
make available for Tenant and Tenant shall have non-assignable option to rent
from the Operator for fifteen (15) parking spaces located in the Denver Place
complex at the prevailing monthly rate posted by the Operator. The parking
space shall be available for a period expiring November 30, 1999. Tenant must
exercise its option within this period by renting the parking spaces directly
from the Operator.
The terms and conditions of Tenant's rental shall be governed and fixed
solely by the rental agreement between Tenant and Operator, however, Tenant's
failure to comply with any term of any such rental agreement shall constitute
a default under the Lease. In the event that Tenant chooses to rent parking
spaces from the Operator as provided for herein, Tenant shall be responsible
for payments to the Operator of a refundable security deposit for each parking
card issued by the Operator in connection with Tenant's rental of the parking
spaces (the "Security Deposit"). The Security Deposit shall be in an amount
to be determined by the Operator in its sole discretion. Notwithstanding
anything in this Agreement or the Lease to the contrary, in no event shall
Landlord be responsible for payment of the Security Deposit to the Operator
on behalf of Tenant. Payment and refund of the Security Deposit shall be
governed and fixed solely by the rental agreement between Tenant and
Operator. Landlord's holding of parking spaces shall not constitute any
assumption of and Tenant hereby releases Landlord from any and all liability
with respect to such rentals, and any and all damage, loss or injury with
respect to such rentals shall be at the sole risk of Tenant unless otherwise
provided by Operator under the rental agreement.
The provisions of this Agreement supplement but are subject to all
provisions of the Lease. Capitalized terms not otherwise defined in this
Agreement have the same meaning as the same terms have in the Lease.
LANDLORD:
DENVER PLACE ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Amerimar Realty Management Co.-Colorado
By: Amerimar Realty Management-
Pennsylvania, its general partner
By: ARC-Management Company, its
general partner
Date: By:
---------------------- ---------------------------------------
Xxxxx X. Xxxxxxxx, President
TENANT:
JATO COMMUNICATIONS CORP., a Delaware
corporation
Date: By:
---------------------- ---------------------------------------
(Title)
