SIXTH ADDENDUM
TO
LEASE AGREEMENT
THIS SIXTH ADDENDUM TO LEASE AGREEMENT ("Addendum") is made this 20TH day
of April, 1995 by and between RCB TRUST CO., REAL PROPERTY TRUST -- SOUTHPORT
FINANCIAL II ("Landlord") and COMMNET CELLULAR INC., a Colorado corporation
("Tenant").
WHEREAS, Landlord, or its predecessor, and Tenant have entered into the
following lease documents (collectively herein referred to as the "Lease", to
which reference should be made for all terms not otherwise herein defined)
pertaining to the Premises commonly known as Suites 110, 118, 200, 270, 300 and
350, Cellular Plaza, 5990 Greenwood Plaza Boulevard, Englewood, Colorado 80111:
(a) Lease Agreement and Addendum to Office Building Lease, each dated
September 23, 1988;
(b) Amendment, dated May 4, 1989;
(c) Second Addendum, dated December 7, 1989 and Declaration of
Commencement, dated January 12, 1989;
(d) Letter of Arnold C. Pohs, dated September 26, 1988;
(e) Letter of Robert Bruce, dated November 18, 1988;
(f) Letter of Robert Bruce, dated December 12, 1988;
(g) Letter of Edward J. McKeegan, dated April 4, 1990;
(h) Declaration of Effective Date, dated April 5, 1990;
(i) Certificate of Occupancy, dated April 16, 1990;
(j) Letter of Arnold C. Pohs, dated July 16, 1990;
(k) Third Addendum to Lease Agreement, dated April 8, 1992 and Declaration
of Commencement, dated May 22, 1992;
(l) Fourth Addendum to Lease Agreement, dated April 27, 1994; and
(m) Fifth Addendum to Lease Agreement, dated December 13, 1994.
WHEREAS, Tenant was formerly known as Cellular Inc., a Colorado corporation
and on March 2, 1994, the Colorado Secretary of State issued its Certificate of
Name Change pursuant to which Tenant's name was changed to CommNet Cellular
Inc., a Colorado corporation.
WHEREAS, Landlord and Tenant desire to amend the Lease to provide for the
expansion of the area of the Premises as more fully herein described.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
1. ADDITIONAL SPACE. Subject to the provisions of Section 2 of this
Addendum as set forth below, the Premises are amended by expanding the area of
the Premises by approximately 3,756 square feet of rentable area comprised of
the portion of the Building commonly known as Suite 116 (3,082 square feet of
rentable area) and the portion of the Building commonly known as the vending
room (674 square foot of rentable area)), on the first floor of East Wing of the
Building, as more particularly described on Exhibit I attached hereto
("Additional Space"), effective on the Completion Date (as herein defined). The
Premises, as amended to include the Additional Space, comprise 49,909 square
feet of rentable area. All terms and conditions of the Lease, as herein
modified, shall apply to the Premises, as amended to include the Additional
Space.
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2. RELOCATION OF ADDITIONAL SPACE TENANT. Landlord and Tenant
acknowledge that the lease of the Additional Space herein provided is contingent
upon Landlord's relocation of the existing tenant in the Additional Space.
Landlord shall use his best efforts to relocate such existing Tenant on or
before May 15, 1995, provided that if Landlord is unable to do so by July 1,
1995, this Amendment shall be null and void except for the acknowledgements
provided in Section 7 hereof, and this Lease shall otherwise continue in full
force and effect. Landlord shall not be required to incur any costs or expenses
in connection with such relocation other than the costs of moving such existing
tenant into its new space in the Building (including, without limitation, the
relocation fee payable to such existing tenant under its lease for the
Additional Space). Landlord's construction of the Tenant Finish for the
Additional Space and the commencement date of the Term of the Additional Space
shall be subject to the relocation of the existing tenant in the Additional
Space, as more fully provided in the Work Letter attached hereto.
3. TERM OF ADDITIONAL SPACE. The Term of the lease of the Additional
Space shall commence upon the Completion Date. The Completion Date is
anticipated to be July 1, 1995. The term of the lease of the Additional Space
shall end upon expiration of the Term of the Lease, January 15, 1996.
4. BASE RENT. Effective upon the Completion Date and through the
expiration of the Term of the Lease, the Base Rent, described in Paragraph 4 of
the Lease, shall be $14.50 per square foot of rentable area of the Additional
Space per annum. The Base Rent for the Additional Space shall be in addition to
the Base Rent payable for other portions of the Premises, described in paragraph
3 of the Fourth Addendum and paragraph 5 of the Fifth Addendum to the Lease.
The Base Rent shall be due and payable in equal monthly installments of
$4,538.50 per month for the Additional Space, without deduction, abatement or
setoff, as more fully provided in the Lease.
5. SHARED EXPENSES. Tenant shall not be required to pay Tenant's Pro
Rata Share of Shared Expenses for the Additional Space. Notwithstanding the
effectiveness of the Completion Date, the Tenant's Pro Rata Share of Shared
Expenses shall continue to be 46.48%.
6. TENANT FINISH. Landlord shall construct the tenant improvements
("Tenant Finish") for the Additional Space in accordance with the Work Letter,
attached hereto as Exhibit II and incorporated herein by this reference. The
term "Completion Date" as used throughout this Addendum shall have the meaning
set forth in the Work Letter attached hereto.
7. CONFIRMATION OF RELOCATION. Landlord and Tenant acknowledge that
Landlord has fulfilled its obligation to relocate the previously existing tenant
in the Second Additional Space pursuant to Section 3 of the Fifth Addendum to
the Lease, and that Tenant's lease of the Second Additional Space as provided in
such Fifth Addendum is in full force and effect.
8. FIFTH ADDENDUM. Section 3 of the Work Letter, dated December 31,
1994, attached as Exhibit III to the Fifth Addendum to the Lease Agreement,
dated December 13, 1994, is amended by deleting the date "July 15, 1995" and
substituting the date "September 15, 1995" therefor. The extension of such
deadline to September 15, 1995, as provided in Section 3 of the Work Letter to
the Fifth Addendum and the Work Letter attached to this Addendum, shall only
apply to Tenant's obligation to reimburse Landlord as provided thereunder and
shall not affect any other term or condition of the Lease including, without
limitation, any option to extend the Term of the Lease.
9. FORCE AND EFFECT. As herein modified, the Lease shall remain in full
force and effect according to the terms and conditions thereof. This Addendum
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
10. AUTHORITY. Each individual executing this Addendum on behalf of
Landlord and Tenant represents and warrants that he or she is duly authorized to
deliver this Lease on behalf of
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Landlord or Tenant, respectively, and that this Lease is binding upon Landlord
or Tenant, respectively, in accordance with its terms.
IN WITNESS WHEREOF, this Addendum has been executed as of the date first
above written.
LANDLORD:
RCB TRUST CO., REAL PROPERTY TRUST--
SOUTHPORT FINANCIAL II
By: Southport Financial Corporation,
a Connecticut corporation,
Manager
By: \s\William C. Hillemeyer
------------------------------
William C. Hillemeyer
Manager Director
TENANT:
COMMNET CELLULAR INC., a
Colorado corporation
By: \s\Arnold C. Pohs
-----------------------------------
Its: President and CEO
-----------------------------------
STATE OF Colorado )
-------------------- ) ss.
COUNTY OF Arapahoe )
-------------------
The foregoing instrument was acknowledged before me this 25th day of April,
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1995 by Arnold C. Pohs as President of CommNet Cellular Inc., a Colorado
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corporation.
WITNESS my hand and official seal.
\s\Katherine McMurray
-----------------------------------
Notary Public
My commission expires: July 23, 1998
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EXHIBIT I
SPACE PLAN FOR ADDITIONAL SPACE
EXHIBIT II
WORK LETTER
THIS WORK LETTER ("Work Letter") shall be a part of that Lease Agreement,
dated September 23, 1988 (herein referred to, as amended, as the "Lease", to
which reference should be made for all terms not otherwise herein defined)
between RCB TRUST CO., REAL PROPERTY TRUST -- SOUTHPORT FINANCIAL II
("Landlord") and COMMNET CELLULAR INC., a Colorado corporation ("Tenant").
This Work Letter sets forth the Tenant Finish for the Additional Space
(commonly known as Suite 116 and the vending room of the Building) to be
constructed by Landlord pursuant to Section 6 of the Sixth Addendum to Lease
Agreement, dated the date hereof (the "Addendum").
1. Landlord and Tenant shall consult and cooperate with each other as
necessary to reach agreement regarding the tenant improvements to be made to the
Additional Space, and the drawings and plans and specifications therefor
(collectively, the "Tenant Finish"), and the costs thereof (the "Tenant Finish
Budget"). Landlord and Tenant will develop the Tenant Finish and a Tenant
Finish Budget for the Additional Space no later than May 1, 1995. If Landlord
and Tenant have not reached an agreement regarding the Tenant Finish and Tenant
Finish Budget for the Additional Space by such date, then the following shall
pertain:
(a) If the failure to agree is the result of delays on the part of
Tenant, then, at Landlord's option, the commencement of the Term
and all other matters conditioned upon substantial completion of
the Tenant Finish shall be deemed to commence July 1, 1995,
notwithstanding that the Tenant Finish for such space may not be
substantially complete as of the date thereof.
(b) If failure to agree is the result of delays on the part of
Landlord, then, at Tenant's option, the term and all other
matters conditioned upon substantial completion of the
Tenant Finish shall be delayed and Tenant shall have the
remedies set forth in paragraph 7 of this Work Letter.
2. Landlord shall construct the Tenant Finish. Except as otherwise
herein provided, Landlord shall pay up to a maximum amount of $33,550.00 of the
cost of the Tenant Finish for the Additional Space, and Tenant shall pay all
costs of the Tenant Finish in excess thereof up to the amount of the Tenant
Finish Budget. If (i) any change to the Tenant Finish is necessary and results
in an increase the cost reflected in the Tenant Finish Budget (other than a
change pursuant to paragraph 5 of this Work Letter) or (ii) any delays caused by
Tenant results in an increase in the cost of the Tenant Finish Budget, Tenant
shall be entitled to approve any such change and pay such increased cost or to
disapprove of any such change and modify the Tenant Finish to eliminate any such
change and increased cost, subject to Landlord's approval of such modification.
If any change is required pursuant to paragraph 5 of this Work Letter or if the
Landlord is notified at any time that the cost of the Tenant Finish shall exceed
the Tenant Finish Budget, Landlord shall provide written notice thereof to
Tenant and Tenant shall be entitled to modify the Tenant Finish to eliminate
such governmental requirement or such cost overrun, subject to Landlord's
reasonable approval of such modification. Tenant shall pay its share of the
costs of the Tenant Finish upon substantial completion of the Tenant Finish and
the costs of the Tenant Finish shall include, without limitation, the cost of
all plans and specifications, construction drawings, architectural fees, permits
and licenses, and a fee in the amount of five percent (5%) of the cost of the
Tenant Finish payable to Landlord for its supervision of the Tenant Finish.
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3. Notwithstanding anything to the contrary, if Landlord completes the
Tenant Finish for Additional Space and on or before September 15, 1995, Landlord
and Tenant do not enter into an extension of the Term of the Lease for space in
the Building at least eighty percent (80%) of the area of the entire Premises
for a term of at least five (5) years despite Landlord's good faith efforts to
negotiate such a term, then Tenant shall immediately reimburse Landlord the
amount of $45,000.00, representing a portion of the costs of the Tenant Finish
and the relocation of the existing tenant of the Additional Space.
4. Subject to Landlord's approval, Tenant may request changes in the
Tenant Finish to be approved by Landlord and Tenant. If such change order
requested by Tenant is approved by Landlord and if additional costs are incurred
by Landlord as a result of such change order, Tenant shall pay all such
additional costs. Landlord shall not be obligated to construct the Tenant
Finish in accordance with any change order until Tenant pays such additional
costs for such change order to Landlord.
5. Tenant consents to any changes to the Tenant Finish (and the drawings,
plans and specifications) which may be imposed by any applicable governmental
authority including, without limitation, any municipal planning or building
department; provided, however, such changes do not substantially alter or modify
the size or character of the Additional Space.
6. Landlord shall commence construction of the Tenant Finish for the
Additional Space upon approval of the Tenant Finish and Tenant Finish Budget,
and relocation of the existing tenant of the Additional Space, subject to
paragraph 1 of this Work Letter. The date of substantial completion of the
Tenant Finish for the Additional Space (the "Completion Date") is anticipated to
be July 1, 1995.
7. Tenant's sole remedy for any delays caused by Landlord in the
completion of the Tenant Finish shall be the delay in adding the Additional
Space to the Premises; provided that if the Tenant Finish for the Additional
Space is not substantially completed by August 15, 1995, then Tenant shall be
entitled to an abatement of the Base Rent payable during the Lease Term for such
delayed space for a period equal to the number of days from August 16, 1995
until substantial completion of the Tenant Finish for such space.
8. Notwithstanding substantial completion of the Tenant Finish by
Landlord, Tenant shall be entitled to provide Landlord with written notice
within fifteen (15) days thereafter of a punch list of minor items which were
part of the Tenant Finish. Landlord shall complete all such punch list items
within forty-five (45) days after Tenant's notice.
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DATED this 28TH day of April, 1995.
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LANDLORD:
RCB TRUST CO., REAL PROPERTY TRUST--
SOUTHPORT FINANCIAL II
By: Southport Financial Corporation,
a Connecticut corporation,
Manager
By: \s\William C. Hillemeyer
-----------------------------------
William C. Hillemeyer
Manager Director
TENANT:
COMMNET CELLULAR INC., a
Colorado corporation
By: \s\Arnold C. Pohs
-----------------------------------
Its: President and CEO
-----------------------------------
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