LEASE
FOR
FRONTIER CENTER ONE, LLC,
a Colorado limited liability company
(as Landlord)
and
FRONTIER AIRLINES, INC.,
a Colorado corporation
(as Tenant)
LEASE
This Lease is made as of the day of , 2000, by and between Frontier
Center One, LLC, a Colorado limited liability company ("Landlord") and Frontier
Airlines, Inc., a Colorado corporation, ("Tenant").
W I T N E S S E T H
1. Basic Provisions. In addition to other terms which are defined elsewhere
in this Lease or any Exhibits, the terms defined in the following subsections of
this Section 1 shall have the meaning set forth in such subsection whenever used
in this Lease.
1.1......Building: Approximately * rentable square foot, one story
building to be constructed by Landlord commonly known as Frontier Center One,
with a street address of 7001 Tower Road, Denver, CO 80249.
1.2......Premises: Approximately * rentable square feet of space
located in the Building, including all improvements therein or to be provided by
Landlord under the terms of this Lease, commonly known as Suite 101, as outlined
on Exhibit A attached hereto, and approximately * square feet of space in the
Building services court depicted on Exhibit A-1 attached hereto and made a part
hereof, (the "Ground Satellite Area" described in Section 49 hereof) and a day
care play area (the "DC Play Area"), if requested by Tenant and approved by
Landlord in accordance with Exhibit C hereof. In addition to Tenant's rights to
use and occupy the Premises as hereinafter specified, Tenant shall have
non-exclusive rights to the Common Areas (as defined in Section 2.4 below) as
hereinafter specified, but shall not have any rights to the roof (except as
expressly granted in Section 49 hereof), exterior walls or utility raceways of
the Building or to any other buildings in the Building Complex.
1.3......Building Complex: The Premises, the Building, the Common Areas
(as defined below), the land upon which they are located, which land is legally
described on Exhibit B attached hereto and made a part hereof (the "Real
Property").
1.4......Parking: * unreserved vehicle parking spaces for each *
rentable square feet of the Premises, excluding the Ground Satellite Area and DC
Play Area from such calculation.
1.5......Term: * years and * months ("Primary Lease Term") commencing
October 1, 2000 ("Commencement Date").
1.6......Estimated Delivery Date: October 1, 2000. [This is a non
binding estimate of the date on which the Premises will be Ready for Delivery as
defined below.]
1.7......Base Rent:
.........(a) For the Primary Lease Term and commencing on the Rent
Commencement Date, as defined in Section 4.1 below, Base Rent for the first *
rentable square feet of the Premises excluding the Ground Satellite Area and DC
Play Area shall be:
Lease Year Per Square Foot
1 $ *
2 $ *
3 $ *
4 $ *
5 $ *
6 $ *
7 $ *
8 $ *
9 $ *
10 $ *
11 $ *
12 $ *
(b) In addition, with respect to the rentable square feet of
the Building leased by Tenant exceeding * rentable square feet, excluding the
Ground Satellite Area and DC Play Area, which are part of the Premises as of the
Commencement Date, * rentable square feet, the Base Rent for the Primary Lease
Term shall be as follows:
Lease Year Per Square Foot
1 $ *
2 $ *
3 $ *
4 $ *
5 $ *
6 $ *
7 $ *
8 $ *
9 $ *
10 $ *
11 $ *
12 $ *
(c) In addition, Tenant shall pay Base Rent in the amount of
$* per month, for the Primary Lease Term for the Ground Satellite Area described
in Section 49 hereof.
1.8 Rentable Area: Approximately * rentable square feet which is all
rentable space available for lease in the Building ("Rentable Area of the
Building") and approximately * rentable square feet which is the rentable space
located within the Building comprising the Premises, excluding the Ground
Satellite Area and DC Play Area, ("Rentable Area of the Premises"). Unless
otherwise provided herein, any square footage set forth in this Lease or that
may have been used in calculating the Rent and/or Common Area Operating Expenses
is an approximation which Landlord and Tenant agree is reasonable and the Base
Rent and Tenant's Share based thereon are not subject to revision whether or not
the actual square footage is more or less. Notwithstanding the foregoing, if
there is: (i) alteration to the Premises or the Building after the Commencement
Date; or (ii) any change in the designated Rentable Area of the Premises and/or
the Building after the Commencement Date, then Landlord shall have the exclusive
discretion to recalculate Tenant's Share by substituting the revised approximate
Rentable Area of the Premises and/or the Building in the calculation described
above. Any change in the approximate Rentable Area of the Premises and/or the
Building recalculated by Landlord shall be effective, for purposes of
calculating Tenant's Share as of the first day of the next calendar month after
Landlord provides to Tenant written notice of such change. Landlord and Tenant
agree that the Rentable Area of the Premises shall be determined in accordance
with Paragraph 3 of the Work Agreement, Exhibit C hereto, and the Base Rent and
Tenant's Share of Operating Expenses shall be calculated at that time. Rentable
Area shall be calculated in accordance with the Standard Method for Measuring
Floor Area in Office Buildings published by The Building Owners and Managers
Association International and approved by the American National Standards
Institute, Inc., on June 7, 1996.
1.9 Tenant's Share of Operating Expenses: A percentage determined by
dividing the Rentable Area of the Premises by the Rentable Area of the Building.
Tenant shall commence paying Tenant's share of Operating Expenses on January 1,
2001. Landlord and Tenant acknowledge that Tenant has been granted the right to
more parking spaces than other tenants will be granted. Therefore, in
calculating Tenant's Share of Operating Expenses, Tenant shall pay * percent of
all costs associated with the maintenance, repair or replacement of parking
areas for each percent of Tenant's Share of other Operating Expenses. (For
example, if Tenant's Share is *%, Tenant's share for parking areas is * x * =
*.)
1.10 Security Deposit: Initially $* and thereafter decreasing in
accordance with Section 5.3 herein.
1.11 Permitted Use: (i) General office; (ii) telephone reservation
center; (iii) classroom training; (iv) flight simulator training; (v) dispatch
center; (vi) cafeteria only for employees; (vii) exercise area only for
employees; and (viii) day care center and for no other purpose; provided,
however, at no time during the Primary Lease Term as it may be extended, may
more than * of the Rentable Area of the Premises at any time, be used for uses
(vi) through (viii) above.
1.12 Applicable Laws: Applicable zoning, municipal, county, state and
federal laws, ordinances and regulations and any covenants or restrictions of
record (collectively, "Applicable Laws").
1.13 Business Day: Monday through Friday, legal holidays (days on which
the U.S. Post Office is closed) excepted.
2. Premises, Parking and Common Areas.
2.1 Grant. In consideration of the Rent and the other covenants
described in the Lease, Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, the Premises, for the Term, at the Rent and upon all of
the terms, covenants and conditions set forth in this Lease. Tenant accepts this
Lease and the Premises upon the covenants and conditions set forth in this Lease
and subject to: (a) any encumbrances, covenants, conditions, restrictions and
other matters of record as of the Commencement Date of the Lease; and (b) the
Applicable Laws. Landlord hereby represents, covenants and warrants to Tenant
that, as of the Commencement Date it will have fee simple title to the Real
Property of which the Premises is a part and as of the Commencement Date, the
Premises will not be subject to leases and tenancies other than this Lease.
Furthermore, between the date of this Lease and the Commencement Date, Landlord
agrees not to record (or voluntarily permit recording) against the Real Property
any document which would prohibit Tenant's Permitted Use.
2.2 Landlord Delivery. Landlord shall deliver the Premises to Tenant
"Ready for Delivery" as hereafter defined within the time frames described in
Section 3.2 herein. Ready for Delivery as used herein shall mean the date that
Tenant may enter the Premises to perform Tenant's Work (as defined in Exhibit C
hereto) including, sufficient access to the Premises for construction vehicles.
The certificate of the architect (or other representative of the Landlord) in
charge of supervising the completion of the Premises shall control conclusively
the date upon which the Premises are Ready for Delivery. On and after the
Delivery Date, Tenant and its authorized agents, contractors, subcontractors and
employees shall be entitled to enter the Premises at Tenant's sole risk and
expense to complete Tenant's Work. From the Delivery Date, estimated to be
October 1, 2000, the provisions of this Lease other than with respect to the
payment of Base Rent and Tenant's Share of Operating Expenses shall apply and
Tenant shall pay for all utilities used by Tenant, its agents, contractors,
subcontractors or employees. Prior to entry, Tenant shall provide to Landlord
evidence of insurance to be provided by Tenant pursuant to the provisions of
Section 9 of this Lease. Tenant acknowledges that on the Delivery Date, Landlord
will be completing Landlord's Work (as defined in Exhibit C hereto) and Tenant,
its agents, employees and contractors shall not interfere, delay or hinder
Landlord, its agents, contractors or subcontractors in construction of
Landlord's Work in accordance with the provisions of this Lease and any such
delay shall be Tenant Delay as described in the Work Agreement. Tenant shall not
use the Premises for storage of inventory or otherwise commence operation of
business until such time as Tenant has received and delivered to Landlord a
Certificate of Occupancy (temporary or final) or an equivalent sign-off issued
by the appropriate governmental authority permitting use of the Premises for the
Permitted Use under the Lease.
2.3 Acceptance of Premises. Landlord has advised Tenant to satisfy
itself with respect to the condition of the Premises including, but not limited
to, the electrical and fire sprinkler systems, security, environmental aspects,
and compliance with the Americans with Disabilities Act ("ADA") and the
Applicable Laws and the present and future suitability of the Premises for
Tenant's intended use. Notwithstanding the foregoing, and subject to
reimbursement as set forth in Section 4.2 below, Landlord will be responsible
for compliance of the Common Areas of the Building with Applicable Laws;
provided, however, Landlord shall have no obligation for non-compliance if such
non-compliance is a result of Tenant's Permitted Use or occupancy of the
Premises. The Landlord's Work (as the term is used in Exhibit C hereto), without
any interior finish work will comply with the requirements of the ADA required
for a commercial facility with no day care facility and excluding noncompliance
due to inconsistencies with building codes or interpretations thereof.
Compliance with the ADA as to the Tenant's Work shall be the sole responsibility
of Tenant and Tenant's Work will comply with the requirements of the ADA
required for Tenant's Permitted Use, including the day care center if Tenant
elects to operate one. Landlord's Work and Tenant's Work shall be completed in
accordance with Exhibit C attached hereto and made a part hereof (the "Work
Agreement"). Except as set forth expressly herein and in the Work Agreement,
Landlord shall have no obligation for completion of any improvements to the
Premises and Tenant shall accept the Premises in its "AS IS" condition on the
Lease Commencement Date. Subject to Total Delay (as defined in Section 3.2
hereof), Landlord's Work will be substantially completed (excluding landscaping
and parking lot striping that may not be able to be performed due to time of
year or weather constraints) by the Rent Commencement Date.
2.4 Common Areas. The term "Common Areas" is defined as all areas and
facilities outside the Premises and excluding Rentable Area of the Building
leased to other tenants and within the exterior boundary line of the Building
Complex and interior utility raceways within the Premises that are provided and
designated by the Landlord from time to time for the general non-exclusive use
of Landlord, Tenant and other tenants of the Building Complex and their
respective employees, suppliers, shippers, customers, contractors and invitees,
including parking areas, loading and unloading areas, trash areas, roadways,
sidewalks, walkways, parkways, driveways and landscaped areas. Landlord hereby
grants to Tenant, for the benefit of Tenant and its employees, suppliers,
shippers, contractors, customers and invitees, during the Term of this Lease the
non-exclusive right to use, in common with others entitled to such use, the
Common Areas as they exist from time to time, subject to any rights, powers, and
privileges reserved by Landlord under the terms hereof or under the terms of any
rules and regulations or restrictions governing the use of the Building Complex.
Under no circumstances shall the right therein granted to use the Common Areas
be deemed to include the right to store any property, temporarily or
permanently, in the Common Areas. Any such storage shall be permitted only by
the prior written consent of Landlord or Landlord's designated agent, which
consent may be revoked at any time. In the event that any unauthorized storage
shall occur, then Landlord shall have the right, without notice, in addition to
such other rights and remedies that it may have, to remove the property and
charge the cost to Tenant, which cost shall be immediately payable upon demand
by Landlord. Landlord or such other person(s) as Landlord may appoint shall have
the exclusive control and management of the Common Areas and shall have the
right, from time to time, to establish, modify, amend and enforce reasonable
rules and regulations with respect thereto subject to any limitations thereon
specifically set forth herein. Landlord shall have the right, in Landlord's sole
discretion, from time to time: (i) to make changes to the Common Areas,
including, without limitation, changes in the location, size, shape and number
of driveways, entrances, parking spaces, parking areas, loading and unloading
areas, ingress, egress, direction of traffic, landscaped areas, walkways and
utility raceways so long as access to the Premises remains available and such
modifications do not contravene any specific requirement contained in this
Lease; (ii) to close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available; (iii)
to designate other land outside the boundaries of the Building Complex to be a
part of the Common Areas; (iv) to add additional buildings and improvements to
the Common Areas; (v) to use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Building Complex, or any portion
thereof as long as access to the Premises remains available; (vi) to do and
perform such other acts and make such other changes in, to or with respect to
the Common Areas and Building Complex as Landlord may, in the exercise of sound
business judgment deem to be appropriate so long as such acts or modifications
do not contravene any specific requirement contained in the Lease and access to
the Premises remains available; and (vii) use the Common Areas for marketing
purposes.
2.5 Parking. Tenant shall be entitled to use the number of unreserved
parking spaces specified in Section 1.4 (which number of spaces may be reduced
if Tenant elects to place a day care center in the Premises and must install the
DC Play Area to comply with Applicable Laws related to such day care center) on
a first come, first served basis on those portions of the Common Areas
designated from time to time by Landlord for parking. Tenant shall not use more
parking spaces than said number. Said parking spaces shall be used in compliance
with the Parking License attached as Exhibit G hereto and made a part hereof for
parking by vehicles no larger than full-size passengerautomobiles, sport utility
vehicles, passenger vans, or pick-up trucks, herein called "Permitted Size
Vehicles." Vehicles other than Permitted Size Vehicles shall be parked and
loaded or unloaded as directed by Landlord in the Rules and Regulations issued
by Landlord. Tenant shall not permit or allow any vehicles that belong to or are
controlled by Tenant or Tenant's employees, suppliers, shippers, customers,
contractors or invitees to be loaded, unloaded, or parked in areas other than
those designated by Landlord for such activities. If Tenant permits or allows
use of the prohibited areas, then Landlord shall have the right, without notice,
in addition to such other rights and remedies that it may have, to remove or tow
away the vehicle involved and charge the cost to Tenant, or if applicable, the
owner of the vehicle where Tenant has not permitted or allowed the use of the
prohibited area, which cost shall be immediately payable upon demand by
Landlord, if Tenant shall be responsible for such costs pursuant to the terms
hereof.
3. Term.
3.1 Term. The Commencement Date, Expiration Date and Primary Lease
Term of this Lease are as specified in Section 1.5.
3.2 Delay in Possession.
(a) If for any reason Landlord cannot deliver possession of
the Premises to Tenant in accordance with the terms of Section 2.2 hereof by the
Estimated Delivery Date, Landlord shall not be subject to any liability
therefor, nor shall such failure affect the validity of this Lease, or the
obligations of Tenant hereunder, or extend the Term hereof; but in such case,
Tenant shall not, except as otherwise provided herein, be obligated to pay Base
Rent, utility costs or Tenant's Share of Operating Expenses, or perform any
other obligation of Tenant under the terms of this Lease until Landlord delivers
the Premises to Tenant in the condition described in Section 2.2. If the
Premises are not Ready for Delivery by the Commencement Date set forth in
Section 1.5 hereof, and such delay is due to other than Tenant Delay (as defined
in Exhibit C hereto) and except for force majeure events, Tenant shall be
entitled to * day of occupancy of the Premises without the payment of the Base
Rent for each day after * days (the "*-Day Period") from the Commencement Date
as set forth in Section 1.5 that the Premises are not Ready for Delivery. Tenant
Delay and delay due to force majeure events may be called "Total Delay" herein.
Such *-Day Period shall be extended one day for each day of Total Delay until
the Premises are Ready for Delivery. The term "force majeure" as used herein
shall mean delay due to causes outside of Landlord's control that could not be
avoided by the exercise of due care, including, without limitation, labor
disputes, fire, flood, earthquake or civil disturbance, unusual delay in
transportation, adverse weather conditions, or casualties. If the Premises are
not Ready for Delivery * days after the Commencement Date as set forth in
Section 1.5 hereof, and such delay is due to other than Total Delay Tenant shall
be entitled to * days of occupancy of the Premises without payment of the Base
Rent for each day after * days from the Commencement Date set forth in Section
1.5 that the Premises are not Ready for Delivery. Such * day period shall be
extended one day for each day of Total Delay until the Premises are Ready for
Delivery. If the Premises are not Ready for Delivery * days after the
Commencement Date as set forth in Section 1.5 hereof, and such delay is due to
other than Total Delay, Tenant shall have the right to terminate this Lease upon
written notice to Landlord given within * calendar days after such * day period.
If Tenant exercises its right to terminate hereunder, effective on the date such
notice is received by Landlord, this Lease shall be null and void and of no
further force and effect. If Tenant fails to timely exercise its right to
terminate, this Lease shall continue in full force and effect and the Lease
Commencement Date shall be the date that the Premises are Ready for Delivery.
The delay of the Commencement Date, the Rent credit and the right to terminate
the Lease as set forth herein shall be in full satisfaction of any claims Tenant
might otherwise have as a result of such delay; provided, however, except for
Total Delay, if and only if after the *-Day Period, Landlord is fully capable of
performing Landlord's Work and fails to proceed with Landlord's Work with
reasonable diligence, in addition to the Rent credit described above, Landlord
will be liable to Tenant in the total amount of Tenant's actual damages,
excluding any consequential damages, resulting from the delay in delivery of the
Premises in Ready for Delivery condition arising from delays which are not
Tenant Delay but are delays over which Landlord does have control and for which
Landlord fails to proceed with reasonable diligence. Likewise, in the event of
Tenant Delay exceeding * days, Tenant shall be liable to Landlord in the total
amount of Landlord's actual damages, excluding any consequential damages,
arising out of Tenant Delay in excess of * days.
(b) If in accordance with the foregoing provision, the
Commencement Date would occur on other than the first day of a calendar month,
the Commencement Date shall be delayed until the first day of the next calendar
month and the Primary Lease Term shall be measured from such date; provided,
however, during any period of delayed commencement, all terms and provisions set
forth in this Lease including, but not limited to Tenant's obligation to pay
Base Rent and all other charges under the Lease shall commence measured from
such earlier date. In order to place in writing the exact Commencement Date,
Rent Commencement Date and expiration date of the Lease, the Rentable Area of
the Premises and Building, the parties agree to execute a supplemental agreement
to become a part hereof in the form attached hereto as Exhibit E.
3.3 Lease Year. "Lease Year" as used in this Lease shall be defined as
each twelve month period beginning with the Rent Commencement Date or any
anniversary thereof and ending on the immediately preceding day one year later.
4. Rent.
4.1 Base Rent. Tenant shall pay Base Rent and other rent or charges, as
the same may be adjusted from time to time, to Landlord in lawful money of the
United States, without offset or deduction on or before the day on which it is
due under the terms of this Lease. Subject to the terms of Section 3.2, the
first payment of Base Rent shall be due no later than * calendar months after
the Commencement Date (the "Rent Commencement Date"). Base Rent and all other
Rent and charges for the period during the Term hereof which is for less than
one full month shall be prorated based upon the actual number of days of the
month involved. Payment of Base Rent and other charges shall be made to Landlord
at its address stated herein or to such other persons or at such other addresses
as Landlord may from time to time designate in writing to Tenant.
4.2 Operating Expenses. Subject to the terms of Section 3.2, commencing
no later than * calendar months after the Commencement Date, Tenant shall pay to
Landlord during the Term hereof, in addition to the Base Rent, Tenant's Share
(as specified in Section 1.8) of all Operating Expenses, as hereinafter defined,
during each calendar year of the Term of this Lease, in accordance with the
following provisions:
(a) "Operating Expenses" are defined, for purposes of this
Lease, as all costs incurred by Landlord relating to the ownership and operation
of the Building Complex including, but not limited to, the following:
(i) The operation, repair and maintenance, in neat, clean,
good order and condition of the Common Areas, including parking
areas, loading and unloading areas, trash areas, roadways,
sidewalks, walkways, parkways, driveways, landscaped areas,
striping, bumpers, irrigation systems, Common Area lighting
facilities, fences and gates, elevators, roofs, and exterior
walls, including paint; exterior signs, awnings, any tenant
directories, and fire detection and sprinkler systems.
(ii) The cost of water, sewer, gas, electricity and
telephone to service the Common Areas, or Premises to the extent
not separately metered.
(iii) Snow, ice and trash removal service, property
management and security services and the costs of any
environmental inspections and the heating, air conditioning and
ventilating maintenance contract.
(iv) The costs of capital improvements, structural repairs
and replacements in or to the Building in order to conform to
changes subsequent to the Commencement Date in any Applicable
Laws, ordinances, rules, regulations or orders of any
governmental or quasi-governmental authority having jurisdiction
over the building (the "Required Capital Improvements"); the
costs of any capital improvements, structural repairs and
replacements designed primarily to reduce any Operating Expenses
(the "Cost Savings Improvements"). The expenditures for Required
Capital Improvements and Cost Savings Improvements shall be
amortized at a market rate of return over the useful life of such
item as determined by Landlord's accountants. Capital
Improvements shall not include the initial costs of Building
expansions for purposes of determining Operating Expenses.
(v) Real Property Taxes to be paid by Landlord for the
Building and the Common Areas under Section 11 hereof.
(vi) The cost of the premiums for the insurance policies
maintained by Landlord under Section 9 hereof.
(vii) Any deductible portion of an insured loss concerning
the Building or the Common Areas.
(viii) Any other services to be provided by Landlord that
are stated elsewhere in this Lease to be an Operating Expense.
(ix) The cost of maintenance, repair or replacement of the
fire protection system.
(b) Operating Expenses shall not include:
(i) any repairs to, or replacements of the Building roof or
structural elements (including foundations, structural columns
and beams and load bearing walls) to the extent covered by
warranty;
(ii) any latent defect of Landlord's Work (Tenant must
notify Landlord of such defects within 90 days of the
Commencement Date);
(iii) any items (including but not limited to costs incurred
by Landlord for repair of damage to the Building) to the extent
Landlord receives reimbursement from insurance proceeds or from a
third party however any deductible portion of any insured loss
may be included in operating expenses;
(iv) interest or principal payments or any other financing
costs of any mortgage or any indebtedness of Landlord, except as
expressly included in Section 4.2(a) above.
(v) Depreciation, amortization, or interest payments except
as specifically included in Operating Expenses;
(vi) Landlord's general corporate overhead and general
administrative expenses including but not limited to, salaries of
officers and executives of Landlord except to the extent they
provide direct service to the Building Complex;
(vii) advertising and promotional expenditures and costs of
signs in or on the Building identifying the owner of the Building
or its manager;
(viii) costs arising from Landlord's charitable or political
contributions;
(ix) costs, fees, penalties and other expenses arising from
the presence, remediation or removal of any Hazardous Substances
on or from the Building or Real Property, not caused by the
actions of Tenant;
(x) any item to the extent that Tenant's payment thereof
would result in Landlord receiving more than 100% of Landlord's
actual expenditure;
(xi) legal and accounting fees for preparation of Landlord's
business documents including the preparation of any and all tax
returns; and
(xii) repairs or restoration necessitated by condemnation to
the extent reimbursed by the award granted by the condemning
authority.
(c) The inclusion of the improvements, facilities and services
set forth in Section 4.2(a) shall not be deemed to impose an obligation upon
Landlord to either have said improvements or facilities or to provide those
services unless Landlord has agreed elsewhere in this Lease to provide the same
or some of them.
(d) Tenant's Share of Operating Expenses shall be payable by
Tenant within * days after a reasonably detailed statement of actual expenses is
presented to Tenant by Landlord. At Landlord's option, however, an amount may be
reasonably estimated by Landlord, from time to time, of Tenant's Share of annual
Operating Expenses and the same shall be payable monthly, as Landlord shall
designate, during each calendar year on the same day as the Base Rent is due
hereunder. If during any particular calendar year, there is a change in the
information on which Landlord based the estimate upon which Tenant is then
making its estimated Operating Expense payments so that such estimate furnished
to Tenant is no longer accurate, Landlord shall be permitted to revise such
estimate, from time to time, by notifying Tenant and there shall be such
adjustments made in the monthly amount of Tenant's Share on the first day of the
month following the serving of such statement to Tenant. Landlord shall deliver
to Tenant after the expiration of each calendar year a reasonably detailed
statement showing Tenant's Share of the actual Operating Expenses incurred
during the preceding year. If Tenant's payments under this Section 4.2(c) during
said preceding calendar year exceed Tenant's Share as indicated on said
statement, Tenant shall be credited the amount of such overpayment against
Tenant's Share of Operating Expenses next becoming due. If Tenant's payments
under this Section 4.2(c) during said preceding year were less than Tenant's
Share as indicated on said statement, Tenant shall pay to Landlord the amount of
the deficiency within * days after delivery by Landlord to Tenant of said
statement. Landlord's failure to deliver to Tenant a statement of Tenant's Share
within * days after the end of the applicable calendar year shall not relieve
Tenant of the obligation to pay sums otherwise due, but Landlord shall make
reasonable efforts to cause such statement to be delivered to Tenant within such
period and shall deliver such statement to Tenant no later than * days after the
end of the applicable calendar year. Tenant's obligation to pay Tenant's Share
of Operating Expenses which accrue during the Term hereof shall survive the
expiration or termination of the Lease.
(e) If Tenant shall dispute the amount of an adjustment
submitted by Landlord's accountants or the proposed estimate on the basis of
which Tenant's Rent is to be adjusted as provided in subsection (d) above,
Tenant shall give Landlord written notice of such objection within * days after
Landlord's accountants or Landlord advise Tenant of such adjustment or proposed
increase or decrease. If Tenant does not give Landlord such written notice
within such time, Tenant shall have waived its right to dispute the amounts so
determined. If Tenant timely objects, Tenant shall have the right to engage its
own certified public accountants ("Tenant's Accountants") for the purpose of
verifying the accuracy of the statement complained of or the reasonableness of
the estimated increase or decrease. If Tenant's Accountants determine that an
error has been made, Landlord's accountants and Tenant's Accountants shall
endeavor to agree upon the matter, failing which the parties shall settle the
dispute by judicial action or in such other manner as they agree. All costs
incurred by Tenant in obtaining its own accountants shall be paid for by Tenant
unless Tenant's Accountants disclose an error, acknowledged by Landlord's
accountants (or found to have occurred in a judicial action), of more than * in
the computation of the total amount of Operating Expenses as set forth in the
statement submitted by Landlord's accountants which is challenged, in which
event Landlord shall pay the reasonable costs incurred by Tenant in obtaining
such audit (but excluding any such costs billed on a contingency fee basis).
Notwithstanding the pendency of any dispute over any particular statement,
Tenant shall continue to pay Landlord the amount of the adjusted monthly
installments of Rent determined by Landlord's accountants until the adjustment
has been determined to be incorrect as aforesaid. If it shall be determined that
any portion of the Operating Expenses were not properly chargeable to Tenant,
then Landlord shall promptly credit or in or after the final Lease Year, refund
the appropriate sum to Tenant. Delay by Landlord or Landlord's accountants in
submitting any statement contemplated herein for any calendar year shall not
affect the provisions of this Section 4 or constitute a waiver of Landlord's
rights as set forth herein for said calendar year or any subsequent calendar
years during the Primary Lease Term and any extensions thereof.
4.3 Rent. The Base Rent, Tenant's Share of Operating Expense and all
other amounts due to be paid to Landlord under this Lease may be referred to
herein collectively as "Rent".
4.4 Additional Consideration. As Additional Consideration for the
Tenant's entering the Lease for the Premises, Landlord will pay to Tenant the
amount of $* each calendar quarter commencing * and continuing each * thereafter
up to a total of $*; provided that on the date of each payment: (i) the Lease is
in full force and effect at the time of each payment; (ii) Tenant has taken
possession of the Premises and has commenced payment of Rent; (iii) Tenant is
not in monetary default or material non-monetary default under the Lease; and
(iv) Tenant has not assigned the Lease or sublet any interest in the Lease or
the Premises other than to Affiliates of Tenant (as defined below). The
Additional Consideration is personal to Tenant and may not be assigned to any
third party, nor shall it be for the benefit of any party other than Tenant. An
"Affiliate" as used herein shall mean a company that controls the Tenant
corporation, or is controlled by the Tenant corporation or is under common
control with the Tenant corporation.
5. Security Deposit.
5.1 The later of the date the Premises are Ready for Delivery or
October 1, 2000, Tenant shall deposit with Landlord the Security Deposit set
forth in Section 1.9 as security for Tenant's faithful performance of Tenant's
obligations under this Lease. The Security Deposit must be delivered on such
date in good funds or by Letter of Credit as described in Section 5.2 below. If
Tenant provides good funds, Tenant shall have the right at a later date to
deliver a Letter of Credit complying with the requirements of Section 5.2 below
and after acceptance of such Letter of Credit, Landlord will return the good
funds Security Deposit. If Tenant fails to pay Base Rent or other rent or
charges due hereunder, or otherwise is in default under this Lease, Landlord may
use, apply or retain all or any portion of said Security Deposit for the payment
of any amount due Landlord or to reimburse or compensate Landlord for any
liability, cost, expense, loss or damage (including attorneys' fees) which
Landlord may suffer or incur by reason thereof. If Landlord uses or applies all
or any portion of said Security Deposit, Tenant shall within * days after
written request therefore deposit monies with Landlord sufficient to restore
said Security Deposit to the full amount required by this Lease. If paid in
cash, Landlord shall keep the Security Deposit separate from its general
accounts in an interest bearing account of Landlord's choice with the interest
thereon payable to the Tenant at the expiration of the Lease; provided however
Landlord shall be entitled to the interest on the Security Deposit if Landlord
is entitled to the Security Deposit pursuant to the terms of this Lease.
Landlord shall, within * days after the expiration of the Term hereof and after
Tenant has vacated the Premises, return to Tenant (or, at Landlord's option, to
the last assignee, if any, of Tenant's interest herein), that portion of the
Security Deposit, and interest thereon, not used or applied by Landlord. At
Landlord's election, Landlord may elect to have the Security Deposit held by
Landlord's manager in a separate security deposit, trust, trustee or escrow
account established and maintained by such manager with respect to certain
security deposits of tenants within the Building Complex. Unless Tenant is so
notified, (i) Landlord will hold the Security Deposit and be responsible for its
return; and (ii) Tenant may request return of the Security Deposit by giving
Landlord written notice in accordance with the provisions of the Lease. If
Landlord's manager holds the Security Deposit, Landlord's manager will be
required to agree that in the event of a dispute over the ownership of the
Security Deposit, the manager will not wrongfully withhold Landlord's true name
and current mailing address from Tenant. Landlord may deliver the funds
deposited herein by Tenant to the purchaser of Landlord's interest in the
Premises in the event such interest be sold, and thereupon, Landlord shall be
discharged from further liability with respect to such deposit. If the claims of
Landlord exceed said deposit, Tenant shall remain liable for the balance of such
claims.
5.2 Notwithstanding anything to the contrary set forth in Section 5.1
above, Tenant has requested permission to provide Landlord with a clean,
unconditional, irrevocable letter of credit on a form and from a lending
institution acceptable to Landlord in its reasonable discretion (the "Letter of
Credit") instead of a good funds Security Deposit. If Tenant elects to deliver
the Letter of Credit instead of the good funds Security Deposit, the initial
Letter of Credit shall be in an amount as then required by the terms of Section
5.3. It is further understood and agreed, that no later than * days prior to the
expiration date of the initial Letter of Credit or renewal Letter of Credit, as
the case may be, Tenant shall present Landlord with good funds or an extension
or renewal of the initial Letter of Credit or a substitute Letter of Credit, in
the same form from a lending institution subject to Landlord's reasonable
approval, in the amount described herein, that shall be effective no later than
upon the expiration of the initial Letter of Credit and continue in effect for
at least a one-year period. Any failure of Tenant to provide Landlord with good
funds or the extensions or renewals or substitute Letter of Credit, as required
hereunder, shall be deemed a default by Tenant under the Lease and Landlord
shall have the right prior to expiration thereof, to present any Letter of
Credit then in its possession for payment, with the amounts received thereunder
to be held as the Security Deposit hereunder.
5.3 Notwithstanding the foregoing, provided Tenant is not in default
under the Lease, the Security Deposit shall be reduced by $* for the second
Lease Year and by $* for each succeeding Lease Year until the Security Deposit
has been reduced to $*. No earlier than * days nor later than * days prior to
the end of the fifth Lease Year, Tenant shall provide Landlord with a certified
statement of Tenant's net worth. If such statement certifies Tenant's net worth
to be $* or greater, Tenant shall not be required to maintain a Security Deposit
for the remainder of the Term. If such statement certifies Tenant's net worth to
be less than $*, Tenant shall maintain a Security Deposit of $* for the
remainder of the Term of the Lease, as it may be extended.
6. Use.
6.1 Permitted Use.
(a) Tenant shall use and occupy the Premises only for the
Permitted Use set forth in Section 1.11 and for no other purpose. Tenant shall
not use or permit the use of the Premises in a manner that is unlawful, creates
waste, odor, or a nuisance, or that disturbs owners and/or occupants of, or
causes damage to the Premises, Building or neighboring premises or properties.
(b) Landlord hereby agrees to not unreasonably withhold or
delay its consent to any written request by Tenant, Tenant's assignees or
subtenants, and by prospective assignees and subtenants of Tenant, its assignees
and subtenants, for a modification of said Permitted Use so long as the same
will not impair the structural integrity of the improvements on the Premises or
in the Building or the mechanical or electrical systems therein, does not
conflict with uses by other tenants, is not significantly more burdensome to the
Premises or the Building and the improvements thereon, and is otherwise
permissible pursuant to Applicable Laws and pursuant to this Section 6. If
Landlord elects to withhold such consent, Landlord shall within * business days
after such request give a written notification of same, which notice shall
include an explanation of Landlord's reasonable objections to the change in use.
7. Hazardous Substances.
7.1 Consent. Tenant shall not cause or permit any Hazardous Substances
to be used, stored, generated or disposed of on, in or about the Premises, the
Building, or the Building Complex by Tenant, or any of its agents, employees,
representatives, contractors, suppliers, customers, subtenants, concessionaires,
licensees unless Tenant shall have received Landlord's prior written consent,
which Landlord may withhold or at any time revoke in its sole discretion.
Landlord warrants that to the best of Landlord's actual current knowledge as of
the date hereof, there are no Hazardous Substances located in the Premises that
violate Hazardous Substance laws by their presence. Further, between the date of
this Lease and the Lease Commencement Date, Landlord agrees that it will not
knowingly authorize its contractor to install into the Premises Hazardous
Substances that violate Hazardous Substance laws by their presence.
7.2 Use. Notwithstanding the foregoing, Tenant may store, use and
dispose of de minimis amounts of office and cleaning products which may contain
small and/or unregulated amounts of such Hazardous Substances in the normal
course of Tenant's Permitted Use of the Premises, and Tenant covenants to comply
with all applicable laws, rules, regulations and ordinances governing same.
7.3 Indemnification. Tenant shall indemnify and defend Landlord, and
hold Landlord harmless, from and against any and all claims, damages, fines,
judgments, penalties, costs, expenses, liabilities, or losses relating to any
violation by Tenant of any Environmental Law (as hereinafter defined) or of this
Section 7 (including, without limitation, a decrease in value of the Premises,
damages caused by loss or restriction of rentable or usable space, and any and
all sums paid for settlement of claims, attorneys' fees, consultant fees, and
expert fees) incurred by or asserted against Landlord arising during or after
the Term of this Lease as a result thereof. This indemnification includes,
without limitation, any and all costs incurred because of any investigation of
the site or any cleanup, removal, testing or restoration mandated or conducted
by or on behalf of any federal, state, or local agency or political subdivision.
Without limitation of the foregoing, if Tenant causes or permits the presence of
any Hazardous Substance in the Premises, the Building, or the Building Complex
that results in any contamination, Tenant shall promptly, at is sole expense,
take any and all necessary or appropriate actions to return the Premises, the
Building and the Building Complex to the condition existing prior to the
presence of any such Hazardous Substance. Tenant shall first obtain Landlord's
written approval for the remedial action which is being proposed by Tenant,
which approval shall not be unreasonably withheld.
7.4 Hazardous Substance. Hazardous Substance means any substance that
is regulated by any local government, the State of Colorado, the United States
government, or any agency, authority and/or instrumentality thereof and includes
any and all materials or substances that are defined as "hazardous waste",
"extremely hazardous waste", or a "hazardous substance" pursuant to any
Environmental Law. Hazardous Substance includes but is not restricted to
petroleum and petroleum byproducts, asbestos, explosives, polychlorinated
biphenyls ("PCBs") and infectious waste.
7.5 Environmental Laws. Environmental Laws means all federal, state and
local laws, including statutes, regulations, and requirements, relating to the
discharge of air pollutants, water pollutants or process waste water or
otherwise relating to the environment or Hazardous Substances, including, but
not limited to, the Federal Clean Water Act, the Federal Resource Conservation
and Recovery Act of 1976, the Federal Comprehensive Environmental Responsibility
Cleanup and Liability Act of 1980, regulations of the Environmental Protection
Agency, regulations of the Nuclear Regulatory Agency, and regulations of any
state department of natural resources or state environmental protection agency,
as amended or supplemented from time to time, now or at any time hereafter in
effect.
8. Maintenance, Repairs, Utility Installations, Trade Fixtures and
Alterations.
8.1 By Tenant.
(a) Subject to the provisions of Sections 8.2, 10, and 15,
Tenant shall, at Tenant's sole cost and expense and at all times, keep the
Premises and every part thereof in good order, condition and repair (whether or
not such portion of the Premises requiring repair, or the means of repairing the
same, are reasonably or readily accessible to Tenant, and whether or not the
need for such repairs occurs as a result of Tenant's use, any prior use, the
elements or the age of such portion of the Premises), including, without
limiting the generality of the foregoing, all equipment or facilities
specifically serving the Premises and located within the Premises, such as
plumbing (excluding main utility lines serving more space than the Premises),
electrical lighting facilities, boilers, fired or unfired pressure vessels, fire
hose connections if within the Premises, fixtures, interior walls, interior
surfaces of exterior walls, ceilings, floors, windows, doors, plate glass, and
skylights, and subject to Section 8.1 (b) below heating, air conditioning and
ventilating systems, but excluding any items which are the responsibility of
Landlord pursuant to Section 8.2 below. Tenant, in keeping the Premises in good
order, condition and repair, shall exercise and perform good maintenance
practices including, without limitation, providing janitorial services to the
Premises substantially equivalent to those attached hereto as Exhibit I.
Tenant's obligations shall include restorations, replacements or renewals when
necessary to keep the Premises and all improvements thereon or a part thereof in
good order, condition and state of repair.
(b) Subject to reimbursement under the provisions of Section
4, Landlord shall procure a contract for maintenance of the heating, air
conditioning and ventilating systems for the Building Complex.
(c) If Tenant fails to perform Tenant's obligations under this
Section 8.1, Landlord may enter upon the Premises after * days' prior written
notice to Tenant (except in the case of an emergency, in which case no notice
shall be required), perform such obligations on Tenant's behalf, and put the
Premises in good order, condition and repair in which event Landlord shall be
entitled to charge Tenant with Landlord's cost plus * due from Tenant upon
presentation of a bill therefor.
(d) Notwithstanding the foregoing, Tenant may contract
directly with Landlord to perform Tenant's obligations set forth under this
Section 8.1 which contract shall set forth the terms and conditions under which
the Landlord or its manager will perform Tenant's obligations. The terms of such
performance shall be fully included in and governed by the contract between the
parties and shall not effect Landlord or Tenant's rights or obligations under
this Lease.
8.2 By Landlord. Subject to the provisions of Sections 2.2, 4.2, 6,
8.1, 9, 10, 11 and 15, and except for damage caused by any negligent or
intentional act or omission of Tenant, its agents, employees, suppliers or
invitees, in which event Tenant shall repair the damage, Landlord, shall keep in
good order, condition and repair the foundations, exterior walls, structural
condition of interior bearing walls, exterior roof, fire sprinkler and/or
standpipe and hose (if located in the Common Areas) or other automatic fire
extinguishing systems including fire alarm and/or smoke detention systems and
equipment, fire hydrants, the sewer line, utility main lines in the Common Areas
and any main utility lines which are located in the Premises but serve more
space than the Premises, parking lots, walkways, parkways, driveways,
landscaping, fences, signs and utility systems serving the Common Areas and all
parts of the Common Areas as well as providing the services for which there is a
Common Area Operating Expense pursuant to Section 4.2. Landlord shall not be
obligated to paint the interior surfaces of exterior walls nor shall Landlord be
obligated to maintain, repair or replace windows, doors or plate glass of the
Premises. Tenant shall have no right to make repairs to the Building or Building
Complex at Landlord's expense.
8.3 Utility Installations, Trade Fixtures, Alterations.
(a) Definitions, Consent Required. The term "Utility
Installations" is used in this Lease to refer to all air lines, power panels,
electrical distribution, security, fire protection systems, communications
systems, lighting fixtures, heating, ventilating and air conditioning equipment,
plumbing, and fencing in, on, or about the Premises. The term "Trade Fixtures"
shall mean Tenant's machinery and equipment which can be removed without doing
material damage to the Premises. The term "Alterations" shall mean any
modification of the improvements on the Premises which are provided by Landlord
under the terms of this Lease, other than Utility Installations or Trade
Fixtures. "Tenant-Owned Alterations and/or Utility Installations" are defined as
Alterations and/or Utility Installations made by Tenant that are not yet owned
by Landlord pursuant to Section 8.4(a). Tenant shall not make nor cause to be
made any Alterations or Utility Installations in, on, under or about the
Premises without Landlord's prior written consent. Tenant may, however, make
non-structural Utility Installations to the interior of the Premises (excluding
the roof) without Landlord's consent but upon notice to Landlord, so long as
they are not visible from the outside of the Premises, are not a water fixture,
do not involve puncturing, relocating or removing the roof or any existing walls
or changing or interfering with the fire sprinkler or fire detection systems or
the heating, air conditioning and ventilating systems, and the cost thereof
during the Term of this Lease as extended does not exceed * per occurrence or a
cumulative total of *; after which Tenant must seek Landlord's consent for such
Alterations and/or Utility Installations. Under no circumstances is Tenant
allowed to add water fixtures to the Premises.
(b) Consent. Any Alterations or Utility Installations that
Tenant shall desire to make and which require the consent of the Landlord shall
be presented to Landlord in written form with detailed plans. All consents given
by Landlord, whether by virtue of Section 8.3(a) or by subsequent specific
consent, shall be deemed conditioned upon: (i) Tenant acquiring all applicable
permits required by governmental authorities; (ii) the furnishing of copies of
such permits together with a copy of the plans and specifications for the
Alteration or Utility Installation to Landlord prior to commencement of the work
thereon; and (iii) the compliance by Tenant with all conditions of said permits
in a prompt and expeditious manner. Any Alterations or Utility Installations by
Tenant during the Term of this Lease shall be completed in a good and
workmanlike manner, with good and sufficient materials of at least the quality
of the original installations in the Premises, and be in compliance with all
Applicable Requirements, and be performed by qualified and licensed workers who
have provided Landlord with evidence of insurance required by Landlord. Tenant
shall promptly upon completion thereof furnish Landlord with as-built plans and
specifications therefor. Landlord may, (but without obligation to do so)
condition its consent to any requested Alteration or Utility Installation that
costs * or more upon Tenant providing Landlord with a lien and completion bond
in an amount equal to * times the estimated cost of such Alteration or Utility
Installation.
(c) Lien Protection. Excluding lien claims arising out of
Landlord's Work, Tenant shall pay when due all claims for labor or materials
furnished to or for Tenant at or for use on the Premises, which claims are or
may be secured by any mechanic's or materialmen's lien against the Premises or
any interest therein. Tenant shall give Landlord not less than * days' notice
prior to the commencement of any work in, on, or about the Premises, and
Landlord shall have the right to post notices of non-responsibility in or on the
Premises as provided by law. If Tenant shall, in good faith, contest the
validity of any such lien, claim or demand, then Tenant shall, at its sole
expense, defend and protect itself, Landlord and the Premises against the same
and shall pay and satisfy any such adverse judgment that may be rendered thereon
before the enforcement thereof against the Landlord or the Premises. If Landlord
shall require, Tenant shall furnish to Landlord a surety bond satisfactory to
Landlord in an amount equal to * the amount of such contested lien, claim or
demand, indemnifying Landlord against liability for the same, as required by law
for the holding of the Premises free from the effect of such lien or claim or,
in the alternative, if approved by Landlord's lender, if necessary, a surety
bond which complies with the then applicable requirements of the Colorado
statutes governing mechanic's liens. In addition, Landlord may require Tenant to
pay Landlord's attorneys' fees and costs in participating in such action if
Landlord shall decide it is to its best interest to do so, if Tenant has not
caused the Premises to be released from the lien in the manner required by then
applicable Colorado statutes governing mechanic's liens.
8.4 Ownership, Removal, Surrender, and Restoration.
(a) Ownership. Subject to Landlord's right to require their
removal and to cause Tenant to become the owner thereof as hereinafter provided
in this Section 8.4, all Tenant-Owned Alterations and Utility Installations made
to the Premises by Tenant shall be the property of and owned by Tenant, but
considered a part of the Premises. Landlord may, at any time and at its option,
elect in a writing delivered to Tenant to be the owner of all or any specified
part of the Tenant-Owned Alterations and Utility Installations. Unless otherwise
instructed per Section 8.4(b) hereof, all Tenant-Owned Alterations and Utility
Installations shall, at the expiration or earlier termination of this Lease,
become the property of Landlord and remain upon the Premises and be surrendered
with the Premises by Tenant.
(b) Removal. Unless otherwise agreed in writing, Landlord may
require that any or all Tenant-Owned Alterations or Utility Installations be
removed by the expiration or earlier termination of this Lease, notwithstanding
that their installation may have been consented to by Landlord. Landlord may
require the removal at any time of all or any part of any Tenant-Owned
Alterations or Utility Installations made without the required consent of
Landlord. Tenant shall be obligated to repair all damage caused by such removal.
If Tenant desires Landlord to decide at the time Tenant requests Landlord's
consent to a Tenant-Owned Alteration or Utility whether or not Tenant shall be
obligated to remove same upon expiration or termination of the Lease, Tenant
shall specifically request in writing that Landlord make such decision and
Landlord will promptly respond to Tenant with its decision.
(c) Surrender/Restoration. Tenant shall surrender the Premises
by the end of the last day of the Lease Term or any earlier termination date,
clean and free of debris and in good operating order, condition and state of
repair, ordinary wear and tear excepted. Ordinary wear and tear shall not
include any damage or deterioration that would have been prevented by good
maintenance practice or by Tenant performing all of its obligations under this
Lease. Except as otherwise agreed or specified herein, the Premises, as
surrendered, shall include the Alterations and Utility Installations. The
obligation of Tenant shall include the repair of any damage occasioned by the
installation, maintenance or removal of Tenant's Trade Fixtures, furnishings,
equipment, and Tenant-Owned Alterations and Utility Installations, and the
removal, replacement, or remediation of any soil, material or ground water
contaminated by Tenant, all as may then be required by Applicable Requirements.
Tenant's Trade Fixtures shall remain the property of Tenant and shall be removed
by Tenant subject to its obligation to repair and restore the Premises per this
Lease. Any Trade Fixtures, Tenant-Owned Alterations and/or Utility Installations
not removed upon the expiration of this Lease shall be deemed abandoned and may
be disposed of by Landlord, as Landlord may determine appropriate, without
further notice to Tenant. Tenant shall pay Landlord all expenses incurred in
connection with such items including, but not limited to, the costs of repairing
any damage to the Premises caused by removal of such items. Tenant's obligation
hereunder shall survive the expiration or other termination of the Lease.
9. Insurance; Indemnity.
9.1 Payment of Premiums. The cost of the premiums for the insurance
policies maintained by Landlord under this Section 9 shall be an Operating
Expense pursuant to Section 4.2 hereof. Premiums for policy periods commencing
prior to, or extending beyond, the Term of this Lease shall be prorated to
coincide with the corresponding Commencement Date or Expiration Date.
9.2 Liability Insurance.
(a) Carried by Tenant. Tenant shall obtain and keep in force
during the Term of this Lease a Commercial General Liability policy of insurance
protecting Tenant, Landlord and any Lender(s) whose names have been provided to
Tenant in writing (as additional insureds) against claims for bodily injury,
personal injury and property damage based upon, involving or arising out of the
ownership, use, occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be on an occurrence basis providing
single limit coverage in an amount not less than * per occurrence with an
"Additional Insured-Managers or Landlords of Premises" endorsement. The policy
shall not contain any intra-insured exclusions as between insured persons or
organizations, but shall include coverage for liability assumed under this Lease
as an "insured contract" for the performance of Tenant's indemnity obligations
under this Lease. The limits of said insurance required by this Lease or as
carried by Tenant shall not, however, limit the liability of Tenant nor relieve
Tenant of any obligation hereunder. All insurance to be carried by Tenant shall
be primary to and not contributory with any similar insurance carried by
Landlord, whose insurance shall be considered excess insurance only. In
addition, Tenant shall maintain workers' compensation insurance as is required
by state law.
(b) Carried By Landlord. Subject to reimbursement of premiums
as described in Section 9.1, Landlord shall also maintain liability insurance
described in Section 9.2(a) above in such amounts, from such companies and on
such terms and conditions as Landlord deems appropriate from time to time, in
addition to and not in lieu of, the insurance required to be maintained by
Tenant. Tenant shall not be named as an additional insured therein.
9.3 Property Insurance. Subject to reimbursement of premiums as
described in Section 9.1, Landlord shall maintain property damage insurance on
such portions of the Building and the Common Areas from time to time which
Landlord has the obligation to maintain and repair under this Lease, above
foundation walls, insuring against loss or damage by fire or other casualty
covered by a so-called "special form" policy, in such amounts, and from
companies and on such terms and conditions as Landlord deems appropriate from
time to time. Tenant-Owned Alterations and Utility Installations, Trade Fixtures
and Tenant's personal property shall be insured by Tenant pursuant to Section
9.4. Landlord may also obtain and keep in force during the Term of this Lease a
policy or policies in the name of Landlord, with loss payable to Landlord and
any Lender(s), insuring the loss of the full rental and other charges payable by
all tenants of the Building to Landlord for one year (including all Real
Property Taxes, insurance costs, all Operating Expenses and any scheduled rental
increases). Tenant shall pay for any increase in the premiums for the property
insurance of the Building and for the Common Areas if said increase is caused by
Tenant's acts, omissions, use or occupancy of the Premises.
9.4 Tenant's Property Insurance. Subject to the requirements of Section
9.5, Tenant at its cost shall either by separate policy or, by endorsement to a
policy already carried, maintain insurance coverage on all of Tenant's personal
property, Trade Fixtures and Tenant-Owned Alterations and Utility Installations
in, on, or about the Premises similar in coverage to that carried by Landlord as
the Insuring Party under Section 9.3. Such insurance shall be full replacement
cost coverage. The proceeds from any such insurance shall be used by Tenant for
the replacement of personal property and the restoration of Trade Fixtures and
Tenant-Owned Alterations and Utility Installations. Upon request from Landlord,
Tenant shall provide Landlord with written evidence that such insurance is in
force. Insurance required of Tenant hereunder shall be in companies duly
licensed to transact business in the state where the Premises are located, and
maintaining during the policy term a "General Policyholders Rating" of at least
B+, V, or such other rating as may be required by a Lender, as set forth in the
most current issue of "Best's Insurance Guide." Tenant shall not do or permit to
be done anything which shall invalidate the insurance policies referred to in
this Section 9. Tenant shall cause to be delivered to Landlord, within seven (7)
days after the Delivery Date evidence of the existence and amounts of, the
insurance required under Section 9.2(a) and 9.4. No such policy shall be
cancelable or subject to modification except after thirty (30) days' prior
written notice to Landlord. Tenant shall at least ten (10) Business Days prior
to the expiration of such policies, furnish Landlord with evidence of renewals
or "insurance binders" evidencing renewal thereof, or Landlord may order such
insurance and charge the cost thereof to Tenant, which amount shall be payable
by Tenant to Landlord upon demand.
9.5 Waiver. Tenant and Landlord each hereby release and relieve the
other (but not their contractors), and waive their entire right to recover
damages (whether in contract or in tort) against the other, for loss or damage
to their property or for any business interruption arising out of or incident to
the perils to the extent such loss or damage or business interruption is
coverable by a standard or special form policy regardless of whether such
insurance is carried or not, or if so carried, payable to or protects Landlord
or Tenant or both. The effect of such releases and waivers of the right to
recover damages shall not be limited by the amount of insurance carried or
required, or by any deductibles applicable thereto. Landlord and Tenant agree to
have their respective insurance companies issuing property damage insurance
waive any right to subrogation that such companies may have against Landlord or
Tenant, as the case may be, so long as the insurance is not invalidated thereby.
9.6 Indemnity.
(a) Subject to Section 9.5 above and except for Landlord's
willful misconduct, or that of Landlord's agents or employees, Tenant shall
indemnify, protect, defend and hold harmless the Premises, Landlord and its
agents, employees, Landlord's master or ground lessor members, partners and
Lenders, from and against any and all claims, loss of rents and/or damages,
costs, liens, judgments, penalties, loss of permits, attorneys' and consultants'
fees, expenses and/or liabilities arising out of, involving, or in connection
with, the occupancy of the Premises by Tenant, the conduct of Tenant's business,
any act, omission or neglect of Tenant, its agents, contractors, employees or
invitees, and out of any Default or breach by Tenant in the performance in a
timely manner of any obligation on Tenant's part to be performed under this
Lease. The foregoing shall include, but not be limited to, the defense or
pursuit of any claim or any action or proceeding involved therein, and whether
or not (in the case of claims made against Landlord) litigated and/or reduced to
judgment. In case any action or proceeding be brought against Landlord by reason
of any of the foregoing matters, Tenant upon notice from Landlord shall defend
the same at Tenant's expense by counsel selected by Tenant and/or Tenant's
insurer, which counsel is reasonably satisfactory to Landlord and Landlord shall
cooperate with Tenant in such defense. Landlord need not have first paid any
such claim in order to be so indemnified. The provisions of this Section shall
survive the expiration or termination of this Lease.
(b) Subject to Section 9.5 above and Section 9.7 below, and
except for Tenant's, its agents or employees negligence, Landlord shall
indemnify and save Tenant, its agents and employees harmless of and from all
liabilities, losses, damages, costs or expenses, including attorneys fees,
fines, penalties, judgments or obligations that the Tenant may sustain on
account of bodily injuries to third parties lawfully on the Common Areas where
the injuries are caused by the wilful misconduct of Landlord, its agents or
employees. The provisions of this Section shall survive the expiration or
termination of this Lease.
9.7 Exemption of Landlord from Liability. Landlord shall not be liable
for injury or damage to the goods, wares, merchandise or other property of
Tenant, Tenant's employees, contractors, invitees, customers, or any other
person in or about the Premises, excluding bodily injury claims, whether such
damage or injury is caused by or results from fire, steam, electricity, gas,
water or rain or from the breakage, leakage, obstruction or other defects of
pipes, fire sprinklers, wires, appliances, plumbing, air conditioning or
lighting fixtures, or from any other cause, excluding bodily injury claims,
whether said injury or damage results from conditions arising upon the Premises
or upon other portions of the Building of which the Premises are a part, from
other sources or places, and regardless of whether the cause of such damage or
injury or the means of repairing the same is accessible or not. Landlord shall
not be liable for any damages arising from any act or neglect of any other
tenant of Landlord nor from the failure by Landlord to enforce the provisions of
any other lease in the Building. Notwithstanding Landlord's negligence or breach
of this Lease, Landlord shall under no circumstances be liable for injury to
Tenant's business or for any loss of income or profit therefrom, or for any
consequential damages of Tenant. Notwithstanding anything to the contrary
contained herein, Landlord's liability under this Lease shall be limited to its
interest in the Building.
10. Casualty and Restoration of Premises.
10.1 Damage Before the Commencement Date. If the Premises or the
Building shall be damaged by fire or other casualty after the Delivery Date but
before the Landlord has substantially completed Landlord's Work, the Lease shall
not be terminated and Landlord shall cause the same to be repaired to the extent
of Landlord's Work set forth in Exhibit C hereof and Tenant shall, at its
expense, replace or fully repair Tenant's Work.
10.2 Total Damage. If, after the date of substantial completion of
Landlord's Work, the Premises or the Building shall be so damaged by fire or
other casualty so as to render the Premises wholly unuseable by Tenant (in
Landlord's reasonable discretion) and if such damage shall be so great that a
competent architect, in good standing, selected by Landlord shall certify in
writing to Landlord and Tenant within * days of said casualty that the Premises,
with the exercise of reasonable diligence, cannot be repaired to the extent the
Premises are useable by Tenant for general office use and the repairs to the
Building, to the extent of Landlord's Work, have been substantially completed
within * days from the date of the casualty (subject to delays beyond Landlord's
reasonable control), then this Lease shall cease and terminate from the date of
occurrence of such damage and Tenant shall, within * days after notice thereof,
surrender to Landlord the Premises and all interest therein under this Lease or
otherwise and Landlord may reenter and take possession of the Premises and
remove Tenant therefrom. Tenant shall pay Rent, duly apportioned, up to the time
of such termination of this Lease so long as Tenant surrendered the Premises to
Landlord within said * days; failing which Tenant shall pay Rent from the
expiration of said * day period until the date of Tenant's vacation and
surrender of the Premises. If, however, the damage shall be such that said
architect shall certify within said * day period that the Premises can be made
tenantable within said * day period (subject to delays beyond Landlord's
reasonable control), then, except as hereinafter provided, Landlord shall repair
the damage so done with all reasonable speed (to the extent of the Landlord's
Work set forth in Exhibit C hereof).
10.3 Partial Damage. If, after the date of substantial completion of
Landlord's Work, the Premises shall be slightly damaged by fire or other
casualty, but not so as to render the same wholly unuseable by Tenant (in
Landlord's reasonable discretion)or to require a repair period in excess of *
days (subject to delays beyond Landlord's reasonable control), then, Landlord,
after receiving notice in writing of the occurrence of the casualty, except as
hereafter provided, shall cause the same to be repaired to the extent of the
damage so done (to the extent of the Landlord's Work set forth in Exhibit C
hereof) with reasonable promptness. If the estimated repair period exceeds *
days (subject to delays beyond Landlord's reasonable control), then the
provisions of Section 10.2 shall control notwithstanding the fact that the
Premises are not wholly unuseable.
10.4 Building Damage. In case the Building throughout shall be so
injured or damaged after the date of substantial completion of Landlord's Work,
whether by fire or otherwise (though said Premises may not be affected, or if
affected), that can be repaired within said * days (subject to delays beyond
Landlord's reasonable control), that, within * days after the happening of such
injury, Landlord shall decide not to reconstruct or rebuild said Building, then,
notwithstanding anything contained herein to the contrary, upon notice in
writing to that effect given by Landlord to Tenant within said * days, Tenant
shall within * days after notice thereof, surrender the Premises to Landlord,
pay the Rent, properly apportioned up to the time of such termination of this
Lease so long as Tenant surrenders the Premises to Landlord within said * days;
failing which Tenant shall pay Rent from the expiration of said * day period
until the date of Tenant's vacation and surrender of the Premises. This Lease
shall terminate from the date of delivery of said written notice, and both
parties hereto shall be freed and discharged of all further obligations
hereunder.
10.5 Rent Abatement. Provided that the casualty is not the fault of
Tenant, Tenant's agents, servants, or employees, Tenant's Rent (Base Rent plus
Tenants Share of Operating Expenses) shall abate during any such period of
Landlord's repair or restoration, in the same proportion that the part of the
Premises rendered unuseable to the Tenant (in Landlord's reasonable discretion)
bears to the whole.
10.6 Tenant's Obligation. In the event the Lease is not terminated,
Tenant shall, at its expense, replace or fully repair Tenant's personal property
and Tenant's Work, Alterations and Utilities installed by Tenant in the Premises
existing on the date of the occurrence of the casualty. Tenant shall fully
cooperate with Landlord in removing Tenant's personal property and any debris
from the Premises to facilitate making of repairs.
10.7 Late Term Damage. Notwithstanding anything set forth herein to the
contrary, if at any time the Premises are damaged by fire or other casualty in
excess of * of the floor area and there is less than one (1) year remaining on
the then current Term of the Lease (including any Options to Extend that had
been exercised in accordance with Section 50 below), then either Landlord or
Tenant shall have the right to terminate this Lease. If either Landlord or
Tenant elect to terminate the Lease pursuant to this Section 10.7, it shall
advise the other party in writing within * days of said casualty of its election
to terminate and within fourteen (14) days after notice thereof, Tenant shall
surrender the Premises to Landlord, pay the Rent properly apportioned to the
date of the casualty so long as Tenant surrenders the Premises to Landlord
within said fourteen (14) days period; failing which Tenant shall pay rent from
the expiration of said * day period until the date of Tenant's vacation and
surrender of the Premises. If Landlord terminates the Lease in accordance with
this Section, but Tenant has an Option to Extend the Term of the Lease at the
end of the then-current Term in accordance with Section 50 below (which Option
has not yet been exercised nor waived in accordance with Section 50), Tenant
shall have the right to give notice to Landlord that Tenant is willing to (and
by such notice does) exercise its Option, in which event the Lease shall not be
terminated under this Section and this Lease shall continue in full force and
effect (unless otherwise terminated in accordance with other Sections of this
Article 10) and Landlord and Tenant shall repair the Premises as may be required
by this Article 10.
11. Real Property Taxes.
11.1 Payment of Taxes. Landlord shall pay the Real Property Taxes, as
defined in Section 11.2, applicable to the Building Complex, and except as
otherwise provided in Section 11.3, any such amounts shall be included in the
calculation of Common Area Operating Expenses in accordance with the provisions
of Section 4.2.
11.2 Real Property Tax Definition. As used herein, the term "Real
Property Taxes" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed upon the Building Complex by any
authority having the direct or indirect power to tax, including any city, state
or federal government, or any school, agricultural, sanitary, fire, street,
drainage, or other improvement district thereof, levied against any legal or
equitable interest of Landlord in the Building Complex or any portion thereof,
Landlord's right to rent or other income therefrom, and/or Landlord's business
of leasing the Premises (other than Landlord's income taxes, excess profit
taxes, estate tax, inheritance tax or similar taxes on Landlord's business). The
term "Real Property Taxes" shall also include any tax, fee, levy, assessment or
charge, or any increase therein, imposed by reason of events occurring, or
changes in Applicable Law taking effect, during the Term of this Lease,
including but not limited to a change in the ownership of the Building Complex
or in the improvements thereon, the execution of this Lease, or any
modification, amendment or transfer thereof, and whether or not contemplated by
the Landlord or Tenant. In calculating Real Property Taxes for any calendar
year, the Real Property Taxes for any real estate tax year shall be included in
the calculation of Real Property Taxes for such calendar year based upon the
number of days which such calendar year and tax year have in common.
11.3 Additional Improvements. Operating Expenses shall not include Real
Property Taxes specified in the tax assessor's records and work sheets as being
caused by additional improvements placed upon the Building Complex by other
tenants or by Landlord for the exclusive enjoyment of such other tenants.
Notwithstanding Section 11.1 hereof, Tenant shall, however, pay to Landlord at
the time Operating Expenses are payable under Section 4.2, the entirety of any
increase in Real Property Taxes if assessed solely by reason of Alterations,
Trade Fixtures or Utility Installations placed upon the Premises by Tenant or at
Tenant's request.
11.4 Tenant's Taxes. Tenant shall pay prior to delinquency all taxes
assessed against and levied upon Tenant-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
of Tenant contained in the Premises or stored within the Building. When
possible, Tenant shall cause its Tenant-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of
Landlord. If any of Tenant's said property shall be assessed with Landlord's
real property, Tenant shall pay Landlord the taxes attributable to Tenant's
property within * days after receipt of a written statement setting forth the
taxes applicable to Tenant's property. In addition, Tenant shall pay all taxes,
including, without limitation, workers' compensation, general license or
franchise taxes and rent taxes, if any, which may be required for the conduct of
Tenant's business.
12. Utilities.Tenant shall pay directly for all utilities and services
supplied to the Premises, including but not limited to electricity, telephone,
security, gas and cleaning of the Premises as described in Section 8.1 herein,
together with any taxes thereon. If any such utilities or services are not
separately metered to the Premises or separately billed to the Premises, Tenant
shall pay to Landlord a reasonable proportion to be determined by Landlord of
all such charges jointly metered or billed with other premises in the Building,
in the manner and within the time periods set forth in Section 4.2(c). In
addition, Tenant shall reimburse Landlord for the reasonable costs incurred by
Landlord in providing services which are shared by more than one tenant after
ordinary business hours, including, without limitation, the costs for materials,
additional wear and tear on equipment, utility charges and labor (including
fringe benefits and overhead costs). Computation for Landlord's costs for
providing such services will be made by Landlord's engineer or Landlord's
representative, based on such engineer's survey of Tenant's excess usage.
13. Assignment and Subletting.
13.1 Landlord's Consent. Tenant shall neither sublet any part of the
Premises nor assign this Lease or any interest herein without the written
consent of Landlord first being obtained, which consent, as to any subletting of
less than * of the Premises, will not be unreasonably withheld provided that:
(i) Tenant has complied with the applicable provisions of Section 13.3 below and
Landlord has declined to exercise its rights thereunder; (ii) the proposed
subtenant or assignee is engaged in a business and the Premises will be used in
a manner which is in keeping with the then standards of the Building and does
not conflict with any exclusive use rights granted to any other tenant; (iii)
the proposed subtenant or assignee has reasonable financial worth in light of
the responsibilities involved and Tenant shall have provided Landlord with
reasonable evidence thereof; (iv) Tenant is not in monetary default or material
non-monetary default hereunder at the time it makes its request for such
consent; (v) the proposed subtenant or assignee is not a governmental or
quasi-governmental agency; (vi) the proposed subtenant or assignee is not a
tenant under, or is not currently negotiating, a lease with Landlord in any
Building owned by Landlord in the Denver metropolitan area (including the
Building); or (vii) the rent under such sublease or assignment is not less than
the rent to be paid by Tenant for such space under the Lease and is not less
than *% of the rental rate then being offered by Landlord for similar space in
the Building. Notwithstanding anything contained herein to the contrary, Tenant
acknowledges that if the use of the Premises by any proposed subtenant or
assignee would require compliance by Landlord and the Building with any current
or future laws to a greater extent than that required prior to the proposed
occupancy by such subtenant or assignee, Landlord, at its sole option, may
refuse to grant such consent, unless, as an express condition thereof, Tenant
and/or such assignee or subtenant bears the entire cost of such greater
compliance. Subject to Section 13.7 below, a sale by Tenant of all or
substantially all of its assets or all or substantially all of its stock, if
Tenant is a publicly traded corporation; a merger of Tenant with another
corporation; the transfer of * or more of the stock in a corporate tenant whose
stock is not publicly traded; or transfer of * or more of the beneficial
ownership interests in a tenant shall constitute an assignment hereunder
requiring Landlord's prior written consent.
13.2 Terms and Conditions. If this Lease is assigned, Landlord may
collect the rent from the assignee and apply the net amount collected to the
Rent herein reserved. If the Premises or any part hereof is sublet or occupied
by anybody other than Tenant (other than an assignee), Landlord may, after a
default by Tenant, collect the rent from the subtenant or occupant and apply the
net amount collected to the Rent herein reserved. No such assignment,
subletting, occupancy, or collection shall be deemed an acceptance of the
assignee, subtenant, or occupant as the tenant hereof or a release of Tenant
from further performance by Tenant of covenants on the part of Tenant herein
contained. Consent by Landlord to any one assignment or sublease shall not in
anyway be construed as relieving Tenant from obtaining Landlord's express
written consent to any further assignment or sublease. Notwithstanding the
consent of Landlord to any sublease or assignment, Tenant shall not be relieved
from its primary obligations hereunder to Landlord, including, but not limited
to the payment of all Base Rent and Tenant's Share of Operating Expenses.
Landlord's consent to any requested sublease or assignment shall not waive
Landlord's right to refuse to consent to any other such request or to terminate
this Lease if such request is made, all as provided herein. If Landlord or
Tenant collects any rental or other amounts from an assignee or subtenant in
excess of the Base Rent and the Tenant's Share of Operating Expenses for any
monthly period, Landlord shall be entitled to * of such excess after deducting
actual payments by Tenant for brokerage commissions and tenant improvement
costs, and Tenant shall pay to Landlord on a monthly basis, as and when Tenant
receives the same, all such excess amounts received by Tenant.
13.3 Landlord's Rights. Notwithstanding anything contained in this
Article 13 to the contrary, in the event Tenant requests Landlord's consent to
sublet all or a portion of the Premises or to assign its interest in this Lease,
Landlord shall have the right to: (i) consent to such sublease or assignment in
its sole discretion (except if covered by Section 13.1 above); (ii) refuse to
grant such consent such in Landlord's sole discretion (except if covered by
Section 13.1 above); or (iii) refuse to grant such consent and terminate this
Lease as to the portion of the Premises with respect to which such consent was
requested; provided, however, if Landlord refuses to grant such consent and
elects to terminate this Lease as to such portion of the Premises, Tenant shall
have the right within * days after notice of Landlord's exercise of its right to
terminate to withdraw Tenant's request for such consent and remain in possession
of the Premises under the terms and conditions hereof. In the event the Lease is
terminated as set forth herein, such termination shall be effective as of the
date set forth in a written notice from Landlord to Tenant, which date shall in
no event be more than * days following such notice.
13.4 Tenant Notice. Tenant agrees that in the event it desires to
sublease all or any portion of the Premises or assign this Lease to any party,
in whole or in part, Tenant shall notify Landlord in writing not less than *
days prior to the date Tenant desires to sublease such portion of the Premises
or assign this Lease ("Tenant's Notice"). Tenant's Notice shall set forth the
description of the portion of the Premises to be so sublet or assigned and the
terms and conditions on which Tenant desires to sublet the Premises or assign
this Lease. Landlord shall have * days following receipt of Tenant's Notice
within which to exercise Landlord's rights pursuant to Sections 13.1 and/or 13.3
above. If Landlord consents to such sublease or assignment and if for any reason
Tenant is unable to sublet said portion of the Premises or assign the applicable
portion of its interest in this Lease on the terms and conditions contained in
Tenant's Notice within * days following its original notice to Landlord, Tenant
agrees to re-offer the Premises to Landlord in accordance with the provisions
hereof prior to leasing or assigning the same to any third party.
13.5 Documents. All documents utilized by Tenant to evidence any
subletting or assignment to which Landlord has consented shall be subject to
prior approval by Landlord or its counsel. Tenant shall pay on demand all of
Landlord's costs and expenses, including reasonable attorneys' fees, incurred in
determining whether or not to consent to any requested sublease or assignment
and in reviewing and approving such documentation.
13.6 Bankruptcy. Landlord and Tenant understand that notwithstanding
certain provisions to the contrary contained herein, a trustee or debtor in
possession under the Bankruptcy Code of the United States may have certain
rights to assume or assign this Lease. If a trustee in bankruptcy is entitled to
assume control over Tenant's rights under this Lease and assigns such rights to
any third party, the Base Rent to be paid hereunder by such party shall be
increased to the then current Base Rent (if greater than then being paid for the
Premises) which Landlord would charge for comparable space in the Building as of
the date of such third party's occupancy of the Premises. Landlord and Tenant
further understand that in any event Landlord is entitled under the Bankruptcy
Code to Adequate Assurance of future performance of the terms and provisions of
this Lease. For purposes of any such assumption or assignment, the parties
hereto agree that the term "Adequate Assurance" shall include at lease the
following:
(a) In order to assure Landlord that the proposed assignee
will have the resources with which to pay the Rent called for herein, any
proposed assignee must have demonstrated to Landlord's satisfaction a net worth
(as defined in accordance with generally accepted accounting principles
consistently applied) at least as great as the net worth of Tenant on the date
this Lease became effective increased by *, compounded annually, for each year
from the Lease Commencement Date through the date of the proposed assignment.
The financial condition and resources of Tenant were a material inducement to
Landlord in entering into this Lease.
(b) Any proposed assignee of this Lease must assume and agree
to be personally bound by the terms, provisions, and covenants of this Lease.
13.7 Permitted Transfers. Notwithstanding anything set forth in this
Article 13 to the contrary, Tenant shall have the right to make the following
types of assignments or subleases on the following conditions without Landlord's
prior written consent: (i) to any corporation into which Tenant may be merged or
consolidated or which purchases all or substantially all of the stock or assets
of Tenant; provided that the entity resulting from such merger, consolidation or
purchase has a net worth at least equivalent to that of Tenant immediately
preceding such merger, consolidation or purchase and Tenant has provided
Landlord with evidence thereof; (ii) to a subsidiary of Tenant, provided Tenant
owns a controlling interest in such subsidiary; or (iii) to any parent
corporation of Tenant or a sister corporation of Tenant wholly owned by the same
parent corporation as Tenant; provided that in the event (i), (ii), or (iii)
above that (a) the assignee or subtenant shall assume and be bound by all
obligations of Tenant for the payment of all amounts of Rent and other charges
under the Lease and the performance of all covenants required by Tenant pursuant
to the Lease; and such assignee or subtenant has executed a document to that
effect which has been transmitted to the Landlord; (b) Tenant continues to
remain liable on its obligations set forth in the Lease; (c) at the time of such
assignment or sublease there shall not be an existing Event of Default under the
Lease; (d) the Premises shall continue to be used for the Permitted Use; and (e)
within * days after the effective date of such assignment or subletting, Tenant
provides Landlord with a copy of the assignment or sublease document and
substantiation that such assignment or sublease meets the criteria set forth in
this subparagraph. Landlord has the right in its discretion to require a
Security Deposit from such assignee or subtenant of the greater of (x) the
Security Deposit amount then required of Tenant or (y) * if a transfer meeting
the requirements of (i) above does not result in an entity with a net worth of
at least *.
14. Default; Remedies.
14.1 Default. A "Default" or "Event of Default" by Tenant is defined as
a failure by Tenant to observe, comply with or perform any of the terms,
covenants, conditions or rules applicable to Tenant under this Lease, which
failure shall remain uncured for any applicable cure periods allowed herein.
Each one of the following shall be an Event of Default:
(a) The vacating of the Premises without the intention to
reoccupy same, or the abandonment of the Premises; provided, however, Tenant may
vacate the Premises in whole or in part provided the Tenant: (i) gives Landlord
* days prior written notice of its intent to vacate; and (ii) complies with all
other terms of the Lease, including payment of all Rent and any other monetary
sums required to be paid hereunder.
(b) Except as expressly otherwise provided in this Lease, the
failure by Tenant to make any payment of Base Rent, Tenant's Share of Operating
Expenses, or any other monetary payment required to be made by Tenant hereunder
as and when due; provided, however, the Tenant may cure an Event of Default
under this provision within * calendar days after Landlord gives written notice
thereof to Tenant. Tenant shall not be entitled to more than two such written
notices within any * consecutive months. The failure by Tenant to provide
Landlord with reasonable evidence of insurance or surety bond required under
this Lease, or the failure of Tenant to fulfill any obligation under this Lease
which endangers or threatens life or property.
(c) Except as expressly otherwise provided in this Lease, the
failure by Tenant to provide Landlord with reasonable written evidence (in duly
executed original form, if applicable) of (i) the rescission of an unauthorized
assignment or subletting per Section 13; (ii) a Tenancy Statement per Section
17; (iii) the subordination or non-subordination of this Lease per Section 31;
(iv) the execution of any document requested under Section 41 (easements); or
(v) any other documentation or information which Landlord may reasonably require
of Tenant under the terms of this Lease, where any such failure continues for a
period of * days following written notice thereof by or on behalf of Landlord to
Tenant.
(d) A Default by Tenant as to the terms, covenants, conditions
or provisions of this Lease, or of the rules adopted under Section 39 hereof
that are to be observed, complied with or performed by Tenant, other than those
described in Subparagraphs 14.1(a), (b) or (c) above, where such Default
continues for a period of * days after written notice thereof by or on behalf of
Landlord to Tenant; provided, however, that if the nature of Tenant's Default is
such that more than * days are reasonably required for its cure, then it shall
not be deemed to be a breach of this Lease by Tenant if Tenant commences such
cure within said * day period and thereafter diligently prosecutes such cure to
completion.
(e) The occurrence of any of the following events: (i) the
making by Tenant of any general arrangement or assignment for the benefit of
creditors; (ii) Tenant's becoming a "debtor" as defined in 11 U.S. Code Section
101 or any successor statute thereto (unless, in the case of a petition filed
against Tenant, the same is dismissed within * days); (iii) the appointment of a
trustee or receiver to take possession of substantially all of Tenant's assets
located at the Premises or of Tenant's interest in this Lease, where possession
is not restored to Tenant within * days; or (iv) the attachment, execution or
other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where such seizure is not
discharged within * days; provided, however, in the event that any provision of
this subparagraph 14.1(e) is contrary to any applicable law, such provision
shall be of no force or effect, and shall not affect the validity of the
remaining provisions.
(f) The discovery by Landlord that any financial statement of
Tenant, given to Landlord by Tenant, was materially false.
14.2 Remedies.
(a) If any one or more Events of Default shall occur and shall
remain uncured by Tenant during the applicable cure periods set forth in Section
14.1 above or as otherwise specified in this Lease, then Landlord shall have the
right at Landlord's election, then or at any time thereafter either:
(1)(a) Without demand or notice, to reenter and take possession of the Premises
or any part thereof and repossess the same as of Landlord's former estate and
expel Tenant and those claiming possession through or under Tenant and remove
the effects of both or either, without being deemed guilty of any manner of
trespass and without prejudice to any remedies for arrears of Rent or preceding
breach of covenants or conditions. Should Landlord elect to reenter, as provided
in this subparagraph (1), or should Landlord take possession pursuant to legal
proceedings or pursuant to any notice provided for by law, Landlord may, from
time to time, without terminating this Lease, relet the Premises or any part
thereof, either alone or in conjunction with other portions of the Building of
which the Premises are a part, in Landlord's or Tenant's name but for the
account of Tenant, for such term or terms (which may be greater or less than the
period which would otherwise have constituted the balance of the Term of this
Lease) and on such conditions and upon such other terms (which may include
concessions of free Rent and alteration and repair of the Premises) as Landlord,
in its absolute discretion, may determine and Landlord may collect and receive
the Rents therefor. Landlord shall in no way be responsible or liable for any
failure to relet the Premises, or any part thereof, or for any failure to
collect any Rent due upon such reletting; provided, however, Landlord shall use
reasonable efforts to relet the Premises. No such reentry or taking possession
of the Premises by Landlord shall be construed as an election on Landlord's part
to terminate this Lease unless a written notice of such intention be given to
Tenant. No notice from Landlord hereunder or under a forcible entry and detainer
statute or similar law shall constitute an election by Landlord to terminate
this Lease unless such notice specifically so states. Landlord reserves the
right following any such reentry and/or reletting to exercise its right to
terminate this Lease by giving Tenant such written notice, in which event the
Lease will terminate as specified in said notice.
(1)(b) If Landlord elects to take possession of the Premises as provided in this
subparagraph (1) without terminating the Lease, Tenant shall pay to Landlord (i)
the Base Rent and Tenant's Share of Operating Expenses, and other sums as herein
provided, which would be payable hereunder if such repossession had not
occurred, less (ii) the net proceeds, if any, of any reletting of the Premises
after deducting all of Landlord's expenses incurred in connection with such
reletting, including, but without limitation, all repossession costs, brokerage
commissions, legal expenses, reasonable attorney's fees , expenses of employees,
alteration, remodeling, and repair costs and expenses of preparation for such
reletting. If, in connection with any reletting, the new lease term extends
beyond the existing Term, or the premises covered thereby include other premises
not part of the Premises, a fair apportionment of the Rent received from such
reletting and the expenses incurred in connection therewith, as provided
aforesaid, will be made in determining the net proceeds received from such
reletting. In addition, in determining the net proceeds from such reletting, any
Rent concessions will be apportioned over the term of the new lease. Tenant
shall pay such amounts to Landlord monthly on the days on which the Rent and all
other amounts owing hereunder would have been payable if possession had not been
retaken and Landlord shall be entitled to receive the same from Tenant on each
such day; or
(2)(a) To give Tenant written notice of intention to terminate this Lease on the
date of such given notice or on any later date specified therein and, on the
date specified in such notice, Tenant's right to possession of the Premises
shall cease and the Lease shall thereupon be terminated, except as to Tenant's
liability hereunder as hereinafter provided, as if the expiration of the term
fixed in such notice were the end of the Term herein originally demised. In the
event this Lease is terminated pursuant to the provisions of this subparagraph
(2), Tenant shall remain liable to Landlord for damages in an amount equal to
the Base Rent and Tenant's Share of Operating Expenses and other sums which
would have been owing by Tenant hereunder for the balance of the Term had this
Lease not been terminated less the net proceeds, if any, of any reletting of the
Premises by Landlord subsequent to such termination, after deducting all
Landlord's expenses in connection with such reletting, including, but without
limitation, the expenses enumerated above. Landlord shall be entitled to collect
such damages from Tenant monthly on the days on which the Base Rent and Tenant's
Share of Operating Expenses and other amounts would have been payable hereunder
if this Lease had not been terminated and Landlord shall be entitled to receive
the same from Tenant on each such day. Alternatively, at the option of Landlord,
in the event this Lease is terminated, Landlord shall be entitled to recover
forthwith against Tenant as damages for loss of the bargain and not as a penalty
an amount equal to the present value (calculated using the Treasury Rate for the
period remaining) of the worth at the time of termination of the excess, if any,
of the amount of Rent reserved in this Lease for the balance of the Term hereof
over the then Reasonable Rental Value of the Premises for the same period plus
all amounts incurred by Landlord in order to obtain possession of the Premises
and relet the same, including reasonable attorneys' fees, reletting expenses,
alterations and repair costs, brokerage commissions and all other like amounts.
It is agreed that the " Reasonable Rental Value" shall be the amount of rental
which Landlord can obtain as Rent for the remaining balance of the Term.
(b) Suit or suits for the recovery of the Rents and other
amounts and damages set forth hereinabove may be brought by Landlord, from time
to time, at Landlord's election, and nothing herein shall be deemed to require
Landlord to await the date whereon this Lease or the Term hereof would have
expired had there been no such default by Tenant or no such termination, as the
case may be. Each right and remedy provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy provided for
in this Lease or now or hereafter existing at law or in equity or by statute or
otherwise, including, but not limited to, suits for injunctive relief and
specific performance. The exercise or beginning of the exercise by Landlord of
any one or more of the rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by Landlord of any or all other
rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise. All such rights and remedies shall
be considered cumulative and non-exclusive. All costs incurred by Landlord in
connection with collecting any Rent or other amount and damages owing by Tenant
pursuant to the provisions of this Lease, or to enforce any provision of this
Lease, shall also be recoverable by Landlord from Tenant. Further, if an action
is brought pursuant to the terms and provisions of the Lease, the prevailing
party in such action shall be entitled to recover from the other party any and
all reasonable attorneys' fees incurred by such prevailing party in connection
with such action.
(c) No failure by Landlord to insist upon the strict
performance of any agreement, term, covenant or condition hereof or to exercise
any right or remedy consequent upon a Default thereof and no acceptance of full
or partial Rent during the continuance of any such Default shall constitute a
waiver of any such Default or of such agreement, term, covenant, or condition.
No agreement, term, covenant, or condition hereof to be performed or complied
with by Tenant and no Default thereof shall be waived, altered, or modified,
except by written instrument executed by Landlord. No waiver of any Default
shall affect or alter this Lease but each and every agreement, term, covenant,
and condition hereof shall continue in full force and effect with respect to any
other then existing or subsequent Default thereof. Notwithstanding any
termination of this Lease, the same shall continue in force and effect as to any
provisions which specifically by their terms provide that such provisions
survive the termination of this Lease and require observance or performance by
Landlord or Tenant subsequent to such termination.
(d) Nothing contained in this Section 14 shall limit or
prejudice the right of Landlord to prove and obtain as liquidated damages in any
bankruptcy, insolvency, receivership, reorganization, or dissolution proceeding
an amount equal to the maximum allowed by any statute or rule of law governing
such a proceeding and in effect at the time when such damages are to be proved,
whether or not such amount be greater, equal to, or less than the amounts
recoverable, either as damages or Rent, referred to in any of the preceding
provisions of this Section. Notwithstanding anything contained in this Section
to the contrary, any such proceeding or action involving bankruptcy, insolvency,
reorganization, arrangement, assignment for the benefit of creditors, or
appointment of a receiver or trustee, as set forth above, shall be considered to
be an Event of Default only when such proceeding, action, or remedy shall be
taken or brought by or against the then holder of the leasehold estate under
this Lease.
(e) Pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the state wherein the Premises
are located.
(f) The expiration or termination of this Lease and/or the
termination of Tenant's right to possession shall not relieve Tenant from
liability under any indemnity provisions of this Lease as to matters occurring
or accruing during the Term hereof or by reason of Tenant's occupancy of the
Premises.
14.3 Inducement Recapture in Event of Default. Any agreement by
Landlord for free or abated Rent or other charges applicable to the Premises, or
for the giving or paying by Landlord to or for Tenant of any cash or other
bonus, inducement or consideration for Tenant's entering into this Lease, but
excluding Tenant's right to occupy the Premises without payment of Rent as
described in Section 3.2 herein, and excluding any equity Tenant may have in the
Landlord entity, if any, all of which concessions are hereinafter referred to as
"Inducement Provisions" shall be deemed conditioned upon Tenant's full and
faithful performance of all of the terms, covenants and conditions of this Lease
to be performed or observed by Tenant during the Term hereof as the same may be
extended. Upon the occurrence of a Default (as defined in Section 14.1) of this
Lease by Tenant, not cured within an applicable cure period, any such Inducement
Provision shall automatically be deemed deleted from this Lease and of no
further force or effect, and any Rent, other charge, bonus, inducement or
consideration theretofore abated, given or paid by Landlord under such an
Inducement Provision shall be immediately due and payable by Tenant to Landlord,
and recoverable by Landlord, as Additional Rent due under this Lease,
notwithstanding any subsequent cure of said Default by Tenant. The acceptance by
Landlord of Rent or the cure of the Default which initiated the operation of
this Section 14.3 shall not be deemed a waiver by Landlord of the provisions of
this Section 14.3 unless specifically so stated in writing by Landlord at the
time of such acceptance. Notwithstanding the foregoing, for the first full *
Lease Years of the Lease Term, Tenant shall be obligated to repay any such
charge, bonus, inducement or consideration theretofore abated given or paid by
Landlord. During the * Lease Year, Tenant must repay one-half of such charge,
bonus inducement or consideration. During Lease Years * through *, Tenant's
obligation to repay such charge, bonus, inducement or consideration shall be
further reduced by * of the full amount of any such charge, bonus inducement or
consideration each Lease Year until such time as Tenant's obligations are
reduced to zero.
14.4 Late Charges. Tenant hereby acknowledges that late payment by
Tenant to Landlord of Rent and other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed upon
Landlord by the terms of any ground lease, mortgage or deed of trust covering
the Premises. Accordingly, if any installment of Base Rent and Tenant's Share of
Operating Expenses or other sum due from Tenant shall not be received by
Landlord or Landlord's designee within * days after such amount shall be due,
then, without any requirement for notice to Tenant, Tenant shall pay to Landlord
a late charge equal to * of such overdue amount. The parties hereby agree that
such late charge represents a fair and reasonable estimate of the costs Landlord
will incur by reason of late payment by Tenant. Acceptance of such late charge
by Landlord shall in no event constitute a waiver of Tenant's Default with
respect to such overdue amount, nor prevent Landlord from exercising any of the
other rights and remedies granted hereunder. In the event that a late charge is
payable hereunder, whether or not collected for * consecutive installments of
Base Rent and Tenant's Share of Operating Expenses, then notwithstanding Section
4.1 or any other provision of this Lease to the contrary, Base Rent and Tenant's
Share of Operating Expenses shall, at Landlord's option, become due and payable
quarterly in advance.
14.5 Default by Landlord. Landlord shall not be deemed in default of
this Lease unless Landlord fails within a reasonable time and with due diligence
to proceed promptly to perform an obligation required to be performed by
Landlord. For purposes of this Section 14.5, a reasonable time shall in no event
be less than * days after receipt by Landlord, and by any Lender(s) whose name
and address shall have been furnished to Tenant in writing for such purpose, of
written notice specifying wherein such obligation of Landlord has not been
performed; provided, however, that if the nature of Landlord's obligation is
such that more than * days after such notice are reasonably required for its
performance, then Landlord shall not be in breach of this Lease if performance
is commenced within such * day period and thereafter diligently pursued to
completion. In the event of Landlord's default, and after expiration of
Landlord's right to cure such default, Tenant will be entitled to exercise any
right or remedy available to Tenant at law or in equity by reason of such
default, except to the extent expressly waived or limited by the terms of this
Lease and provided that Tenant gave Landlord written notice of the obligation
required to be performed by Landlord under the Lease.
15. Condemnation. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said power
(all of which are herein called "condemnation"), this Lease shall terminate as
to the part so taken as of the date the condemning authority takes title or
possession whichever first occurs. If more than * of the floor area of the
Premises or more than * of the portion of the Common Areas designated for
parking is taken by condemnation, Tenant may, at Tenant's option, to be
exercised in writing within * days after Landlord shall have given Tenant
written notice of such taking (or in the absence of such notice, within * days
after the condemning authority shall have taken possession) terminate this Lease
as of the date the condemning authority takes such possession. If Tenant does
not terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises remaining,
except that the Base Rent and Tenant's Share of Operating Expenses shall be
reduced in the same proportion as the rentable floor area of the Premises taken
bears to the total Rentable Area of the Premises. No reduction of Base Rent
shall occur if the condemnation does not apply to any portion of the Premises.
In the event a portion of the Common Area designated for parking is taken by
condemnation, Landlord will retain the ratio of Tenant's parking based on the
square feet remaining of the Premises to the ratio of parking spaces made
available for other tenants in the Building. Any award for the taking of all or
any part of the Premises under the power of eminent domain or any payment made
under threat of the exercise of such power shall be the property of Landlord,
whether such award shall be made as compensation for diminution of value of the
leasehold or for the taking of the fee, or as severance damages; provided,
however, that Tenant shall be entitled to any compensation, separately awarded
to Tenant for Tenant's relocation expenses, taking of Tenant's chattels and/or
loss of Tenant's Trade Fixtures in the condemnation.
16. Brokers. Tenant and Landlord each represent and warrant to the other that
(i) it has had no dealings with any person, firm, broker or finder other than
Coldwell Banker Commercial, Moore and Company who acted as Tenant's agent in
connection with the negotiation of this Lease and/or the consummation of the
transaction contemplated hereby; and (ii) no broker or other person, firm or
entity other than said named Broker(s) is entitled to any commission or finder's
fee in connection with said transaction. Landlord shall pay a real estate
commission to such Broker pursuant to a separate written agreement between them.
Tenant and Landlord do each hereby agree to indemnify, protect, defend and hold
the other harmless from and against liability for compensation or charges which
may be claimed by any such unnamed broker, finder or other similar party by
reason of any dealings or actions of the indemnifying Party, including any
costs, expenses, and/or attorneys' fees reasonably incurred with respect
thereto.
17. Statements.
17.1 Estoppel. Each party shall within * days after written notice from
the other party execute, acknowledge, and deliver to the requesting party a
statement in writing certifying that this Lease is unmodified and in full force
and effect (or, if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), that there have been no
defaults thereunder by Landlord or Tenant (or, if there have been defaults,
setting forth the nature thereof), the date to which the Rent and other charges
have been paid in advance, if any, and such other information as the requesting
party may request. It is intended that any such statement delivered pursuant to
this Section may be relied upon by any prospective purchaser of all or any
portion of Landlord's interest herein or any holder of any mortgage or deed of
trust encumbering the Building Complex. Tenant's failure to deliver such
statement within such time shall be conclusive upon Tenant that: (i) the Lease
has not been canceled or terminated and is in full force and effect, without
modification except as may be represented by Landlord; (ii) there are no uncured
defaults in Landlord's performance (iii) not more than one month's Base Rent and
Tenant's Share of Operating Expenses has been paid in advance; and (iv) that the
current amounts of the Base Rent are as represented by Landlord; and (v) there
have been no subleases or assignments of the Leases. Further, with * days after
Landlord's request, Tenant will supply Landlord a corporate or partnership
resolution, as the case may be, or a certificate executed by the Corporate
secretary of Tenant certifying that the party signing said statement of Tenant
is properly authorized to do so.
17.2 Financial Statement. If Landlord desires to finance, refinance, or
sell the Premises or the Building Complex, or any part thereof, Tenant shall
deliver to any potential lender or purchaser designated by Landlord such
financial statements of Tenant and such Guarantors as may be reasonably required
by such lender or purchaser, including but not limited to Tenant's financial
statements for the past three (3) years. All such financial statements shall be
received by Landlord and such lender or purchaser in confidence and shall be
used only for the purposes herein set forth.
18. Landlord's Liability. The term Landlord" as used herein shall
mean the owner or owners at the time in question of the fee title to the
Premises. In the event of a transfer of Landlord's title or interest in the
Premises or in this Lease during the Term hereof, Landlord shall deliver to the
transferee or assignee (in cash or by credit) any unused Security Deposit held
by Landlord at the time of such transfer or assignment. Upon such transfer or
assignment and delivery of the Security Deposit, as aforesaid, and notification
of Tenant thereof, the prior Landlord shall be relieved of all liability with
respect to the obligations and/or covenants under this Lease thereafter to be
performed by the Landlord. Subject to the foregoing, the obligations and/or
covenants in this Lease to be performed by the Landlord shall be binding only
upon the Landlord as hereinabove defined. Notwithstanding the foregoing,
Landlord (or Landlord's transferee or assignee) shall be liable for the actual
costs incurred by Tenant in obtaining a transfer of the letter of credit
referenced in Section 5.1 hereof, if any, upon the transfer of Landlord's title
or interest in the Premises up to a maximum amount of * of the then letter of
credit amount, if any held by Landlord as a Security Deposit.
19. Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
20. Interest on Past-Due Obligations.Any monetary payment due Landlord
hereunder, other than late charges, not received by Landlord within * days for
the first two lat payments (and * days after the first two of such late
payments) following the date on which it was due, shall bear interest from the
date due at an annual of interest equal to the lesser of (i) the Prime Rate plus
* (* after the first two of such late payments); or (ii) the highest rate
permitted by applicable usury law, until paid. For purposes hereof, the term
"Prime Rate" shall mean the rate published by The Western Edition of The Wall
Street Journal under "Money Rates". If, for any reason, the Prime Rate is no
longer published in The Wall Street Journal then the Landlord shall select
another financial publication and reasonably announced rate as the Prime Rate.
21. Time of Essence. Time is of the essence with respect to the
performance of all obligations to be performed or observed by the parties under
this Lease.
22. Rent. All monetary obligations of Tenant to Landlord under the
terms of this Lease are deemed to be Rent.
23. No Prior or Other Agreements. This Lease contains all agreements
between the parties with respect to any matter mentioned herein, and no other
prior or contemporaneous agreement or understanding shall be effective.
24. Notices.
24.1 Notice Requirements. All notices required or permitted by this
Lease shall be in writing and may be delivered in person (by hand or by
messenger or courier service) or may be sent by certified or registered mail or
U.S. Postal Service Express Mail, with postage prepaid, and shall be deemed
sufficiently given if served in a manner specified in this Section 24. The
addresses noted below shall be that party's address for delivery or mailing of
notice purposes. Either party may by written notice to the other specify a
different address for notice purposes, except that upon Tenant's taking
possession of the Premises, the Premises shall constitute Tenant's address for
the purpose of mailing or delivering notices to Tenant. A copy of all notices
required or permitted to be given to Landlord hereunder shall be concurrently
transmitted to such party or parties at such addresses as Landlord may from time
to time hereafter designate by written notice to Tenant.
If to Landlord: Shea Homes Lim. Partnership
300 W. Plaza Drive
Highlands Ranch, CO 80126
Attn: Mr. David Goldberg
with a copy to: L.C. Fulenwider, Inc.
1125 17th Street, Ste. 2500
Denver, CO 80202
Attn.: Mr. William K. Prather
with a copy to: The Krovitz Law Firm, P.C.
5290 DTC Parkway, Suite 150
Englewood, CO 80111-2764
Attn: R. G. (Shelley) Krovitz, Esq.
If to Tenant (prior to Frontier Airlines, Inc.
the Delivery Date): 12015 E. 46th Ave., #200
Denver, CO 80239-3116
Attn.: General Counsel
If to Tenant (after the The Premises
Delivery Date):
With a copy to: Randall G. Alt, Esq.
Otten, Johnson, Robinson, Neff & Ragonetti, P.C.
950 17th Street, Suite 1600
Denver, CO 80202
and
Douglas R. Wright, Esq.
Faegre & Benson LLP
370 17th Street, Suite 2500
Denver, CO 80202
24.2 Date of Notice. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given and received * hours after the
same is addressed as required herein and mailed with postage prepaid. Notices
delivered by United States Express Mail or overnight courier that guarantees
next day delivery shall be deemed given and received * hours after delivery of
the same to the United States Postal Service or courier. If notice is received
on a Saturday or a Sunday or a legal holiday, it shall be deemed received on the
next business day.
25. Waivers. No waiver by Landlord of the Default of any term,covenan
or condition hereof by Tenant shall be deemed a waiver of any other form
covenant or condition hereof or of any subsequent Default by Tenant of the same
or any other term, covenant or condition hereof. Landlord's consent to or
approval of any such act shall not be deemed to render unnecessary the obtaining
of Landlord's consent to or approval of any subsequent or similar act by Tenant
or be construed as the basis of an estoppel to enforce the provision or
provisions of this Lease requiring such consent. Regardless of Landlord's
knowledge of a Default at the time of accepting Rent, the acceptance of Rent by
Landlord shall not be a waiver of any Default by Landlord of any provision
hereof. Any payment given Landlord by Tenant may be accepted by Landlord on
account of moneys or damages due Landlord, notwithstanding any qualifying
statements or conditions made by Tenant in connection therewith, which such
statements and/or conditions shall be of no force or effect whatsoever unless
specifically agreed to in writing by Landlord at or before the time of deposit
of such payment.
26. Recording. Tenant shall not record this Lease or a memorandum
hereof. In the event that Tenant violates this provision, this Lease shall be
null, void and of no further force and effect, at Landlord's option, except that
Tenant shall be liable to Landlord as liquidated damages, in the amount of the
remaining Rent to be paid hereunder.
27. Holdover. Tenant has no right to retain possession of the Premises
or any part thereof beyond the expiration or earlier termination of this Lease.
In the event that Tenant holds over in violation of this Section 27 with the
consent of Landlord, then the Base Rent payable from and after the time of the
expiration or earlier termination of this Lease shall be increased to * of the
Base Rent applicable during the month immediately preceding such expiration or
earlier termination. Nothing contained herein shall be construed as a consent by
Landlord to any holding over by Tenant.
28. Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
29. Covenants and Conditions. All provisions of this Lease to be
observed or performed by either Landlord or Tenant are both covenants and
conditions.
30. Binding Effect: Choice of Law. This Lease shall be binding upon
the parties, their personal representatives, successors and assigns and be
governed by the laws of the State of Colorado. Any litigation between the
parties hereto concerning this Lease shall be initiated in the county in which
the Premises are located.
31. Subordination; Attornment; Non-Disturbance.
31.1 Subordination. This Lease, at Landlord's option, shall be
subordinate to: (i) any mortgage, deed of trust or ground lease (now or
hereafter placed upon the Building, or any portion thereof), including any
amendment, modification, or restatement of any of such documents; (ii) any and
all advances made under any mortgage or deed of trust; and (iii) all renewals,
modifications, consolidations, replacements, and extensions of any such
mortgage, deed of trust or ground lease. Tenant agrees that with respect to any
of the foregoing documents, no documentation, other than this Lease, shall be
required to evidence such subordination.
31.2 Superior. If any Mortgagee shall elect to have this Lease superior
to the lien of the applicable mortgage, deed of trust or ground lease, and shall
give written notice thereof to Tenant, this Lease shall be deemed prior to such
mortgage, deed of trust or ground lease, whether this Lease is dated prior or
subsequent to the date of said mortgage, deed of trust or ground lease or the
date of recording thereof.
31.3 Documentation. In confirmation of such subordination or superior
position, as the case may be, Tenant agrees to execute such documents as may be
required by Landlord or any Mortgagee to evidence the subordination of its
interest herein to any of the documents described above, or to evidence that
this Lease is prior to the lien of any mortgage or deed of trust or any ground
lease, as the case may be, and failing to do so within fifteen (15) Business
Days after written demand, Tenant shall be in default under the Lease without
the necessity of further notice. Tenant's subordination and attornment to a
future mortgage, deed of trust or other encumbrance on the Building and/or the
Real Property, shall be contingent upon Tenant's receipt from such lender of a
non-disturbance agreement prepared on the lender's standard form; provided,
however, receipt of such non-disturbance agreement shall be conditioned upon
Tenant not being in default under this Lease. Such non-disturbance agreement
will provide in substance that so long as Tenant fully complies with the terms,
covenants and conditions of this Lease, the party succeeding to Landlord's
interest will recognize this Lease.
31.4 Attornment. Tenant hereby agrees to attorn to all successor owners
of the Building, whether or not such ownership is acquired as a result of a
sale, through foreclosure of a deed of trust or mortgage, or otherwise.
32. Attorneys' Fees. If any party brings an action or proceeding to
enforce the terms hereof or declare rights hereunder, the Prevailing Party (as
hereafter defined) in any such proceeding, action, or appear thereon, shall be
entitled to reasonable attorneys' fees. Such fees may be awarded in the same
suit or recovered in a separate suit, whether or not such action or proceeding
is pursued or decision or judgment. The term "Prevailing Party" shall include,
without limitation, a party who substantially obtains or defeats the relief
sought, as the case may be, whether by compromise, settlement, judgment or the
abandonment by the other party of its claim or defense. The attorneys' fee award
shall not be computed in accordance with any court fee schedule, but shall be
such as to fully reimburse all attorneys' fees reasonably incurred.
33. Right of Entry. Landlord and Landlord's agents shall have the
right to enter the Premises at any time, in the case of an emergency, and
otherwise at reasonable times during normal business hours for (i) the purpose
of showing the same to prospective purchasers, lenders, or tenants, and (ii)
making such alterations, repairs, improvements or additions to the Premises or
to the Building, as Landlord may reasonably deem necessary; provided that in
doing so, Landlord shall not unreasonably disturb or interfere with Tenant's use
of the Premises beyond what may be reasonably necessary under the circumstances.
Landlord may at any time place on or about the Premises or Building any ordinary
"For Sale" signs and Landlord may at any time during the last * days of the Term
hereof place on or about the Premises any ordinary "For Lease" signs. All such
activities of Landlord shall be without abatement of Rent or liability to
Tenant; provided, however, subject to Section 9.5 herein and excluding Tenant's
personal property, Trade Fixtures, and Tenant-Owed Alterations and Utility
Installations in, on or about the Premises, Landlord shall repair damage to the
Premises caused by Landlord exercising its rights under (ii) above.
34. Auctions. Tenant shall not conduct, nor permit to be conducted,
either voluntarily or involuntarily, any auction upon the Premises without first
having obtained Landlord's prior written consent. Notwithstanding anything to
the contrary in this Lease, Landlord shall not be obligated to exercise any
standard of reasonableness in determining whether to grant such consent.
35. Signage. Tenant shall not place any sign upon the exterior of the
Premises or the Building, except in conformance with the Landlord's sign
criteria attached hereto as Exhibit D, and made a part hereof. The installation
of any sign on the Premises by or for Tenant shall be subject to the provisions
of Section 7 (Maintenance, Repairs, Utility Installations, Trade Fixtures and
Alterations). Unless otherwise expressly agreed herein, Landlord reserves all
rights to the use of the roof of the Building, and the right to install
advertising signs on the Building, excluding the roof, which do not unreasonably
interfere with the conduct of Tenant's business and further provided such
signage does not advertise a scheduled passenger airline (provided, however,
such exclusion shall not apply if any such competitor is a tenant in the
Building Complex). Landlord shall be entitled to all revenues from such
advertising signs, if any. Notwithstanding the foregoing, Tenant shall be
entitled to exterior signage on the Building provided that the size, location
and design shall be subject to Landlord's prior written approval which approval
will not be unreasonably withheld. Tenant's right to the exterior signage is
personal to the Tenant corporation, is not assignable and may not be used for
any other name than Tenant's corporate name unless the Tenant changes its name
by corporate action, but such action shall not include a name change by
assignment or sublease as described in Section 13 above. All such exterior
signage rights shall be of no further force and effect if the named Tenant
corporation is not occupying at least * square feet of space in the Building at
any time during the Lease Term as it may be extended. Tenant shall obtain all
approvals necessary for all signage including, approval pursuant to the Denver
International Business Center protective covenants and all governmental
entities, at its cost and expense and such signage shall comply with all codes.
36. Termination; Merger. Unless specifically stated otherwise in
writing by Landlord, the voluntary or other surrender of this Lease by Tenant,
the mutual termination or cancellation hereof, or a termination hereof by
Landlord for Default by Tenant, shall automatically terminate any sublease or
lesser estate in the Premises; provided, however, Landlord shall, in the event
of any such surrender, termination or cancellation, have the option to continue
any one or all of any existing subtenancies. Landlord's failure within * days
following any such event to make a written election to the contrary by written
notice to the holder of any such lesser interest, shall constitute Landlord's
election to have such event constitute the termination of such interest.
37. Guarantor. [Intentionally Deleted]
38. Quiet Possession. Upon payment by Tenant of the Rent for the
Premises and the performance of all of the covenants, conditions and provisions
on Tenant's part to be observed and performed under this Lease and subject to
the provisions of this Lease, Tenant shall not be disturbed in its possession of
the Premises for the entire Term hereof by Landlord or any other person lawfully
claiming through or under Landlord.
39. Rules and Regulations. Tenant agrees that it will abide by, and
keep and observe all rules and regulations ("Rules and Regulations) which
Landlord may make from time to time for the management, safety, care, and
cleanliness of the grounds, the parking and unloading of vehicles and the
preservation of good order, as well as for the convenience of other occupants or
tenants of the Building and their invitees. The current Rules and Regulations
are attached hereto as Exhibit F and made a part hereof. Any modification to the
current Rules and Regulations shall be effective only upon delivery of a copy
thereof to Tenant at the Premises. Landlord shall use reasonable efforts to
secure compliance by all tenants with the Rules and Regulations from time to
time in effect, but shall not be responsible to Tenant or any other person for
failure of any person to comply with such Rules and Regulations. Notwithstanding
the foregoing, the terms and conditions set forth in the body of this Lease
shall control over any inconsistent Rules and Regulations.
40. Security. Tenant hereby acknowledges that the Rent payable to
Landlord hereunder does not include the cost of guard service or other security
measures, and that Landlord shall have no obligation whatsoever to provide same.
Tenant assumes all responsibility for the protection of the Premises, Tenant,
its agents and invitees and their property from the acts of third parties.
Notwithstanding the foregoing, Landlord may elect to provide a concierge or
security guard for more efficient operation of the Building Complex, and the
cost thereof shall be included as a Common Area Operating Expense. Landlord is
not obligated to provide such security services at any time or for any length of
time. Tenant expressly acknowledges that Landlord has not represented to Tenant
that the Building Complex is secure and Landlord shall not be responsible for
the quality of any security services which may be provided hereunder or for
damage or injury to Tenant, its agents, employees, invitees or others or its
betterments contained in the Building Complex or the Premises due to the
failure, action or inaction of such persons providing the security services.
41. Reservations. Landlord reserves the right, from time to time, to
grant, without the consent or joinder of Tenant, such easements, rights of way,
utility raceways, and dedications that Landlord deems necessary, and to cause
the recordation of parcel maps and restrictions, so long as such easements,
rights of way, utility raceways, dedications, maps and restrictions do not
unreasonably interfere with the use of the Premises by Tenant. Tenant agrees to
sign any documents reasonably requested by Landlord to effectuate any such
easement rights, dedication, maps or restrictions.
42. Authority. If either party hereto is a corporation, trust, or
general or limited partnership, each individual executing this Lease on behalf
of such entity represents and warrants that he or she is duly authorized to
execute and deliver this Lease on its behalf. If Tenant is a corporation, trust
or partnership, Tenant shall within * days after written request by Landlord,
deliver to Landlord evidence satisfactory to Landlord of such authority.
43. Conflict. Any conflict between the printed provisions of this
Lease and any typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
44. Offer. Preparation of this Lease by either Landlord or Tenant or
Landlord's agent or Tenant's agent and submission of same to Tenant or Landlord
shall not be deemed an offer to lease. This Lease is not intended to be binding
until executed and delivered by all parties hereto.
45. Amendments. This Lease may be modified only in writing, signed
by the parties in interest at the time of the modification. The parties shall
amend this Lease from time to time to reflect any adjustments that are made to
the Base Rent or other rent payable under this Lease. As long as they do not
materially or unreasonably change Tenant's obligations hereunder, Tenant agrees
to make such reasonable non-monetary modifications to this Lease as may be
reasonably required by an institutional insurance company or pension plan lender
in connection with the obtaining of normal financing or refinancing of the Real
Property of which the Premises are a part.
46. Multiple Parties. Except as otherwise expressly provided herein,
if more than one person or entity is named herein as either Landlord or Tenant,
the obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Landlord or
Tenant.
47. Building Name. As of the date hereof, the name of the Building is
and shall continue to be "Frontier Center One". Notwithstanding the foregoing,
if at any time during the Lease Term, as it may be extended, the named Tenant
Corporation is occupying less than * rentable square feet of space in the
Building under the name "Frontier Airlines," this Paragraph 47 shall be of no
further force and effect and Landlord shall be free to rename the Building in
its sole discretion.
48. Confidentiality. All information contained in this Lease Agreement
is hereby deemed confidential and shall not be divulged to anyone without the
express written consent of Landlord except as otherwise specified in Section 17
of this Lease Agreement to their professional consultants and advisors, the
Broker identified in Section 16 or as otherwise required by judicial action or
governmental law, rules and regulations.
49. Satellite. Landlord hereby grants Tenant a nonexclusive right to
install one ground satellite dish in the Ground Satellite Area (the "Ground
Satellite") and (ii) other reasonable telecommunications equipment of which
Landlord has received prior written notice and has exercised Landlord's right to
approve the height, weight, load factor, design, placement and screening
thereof, and has given Landlord's prior written consent thereto, on the roof of
the Building (the "Roof Satellite") during the Term of this Lease in accordance
with the following provisions:
49.1 The Ground Satellite dish and all equipment associated therewith
shall be installed in the Ground Satellite Area which shall be located as set
forth on Exhibit A-1 and shall be secured by Tenant. The requirements for the
Ground Satellite Area enclosure shall be subject to Landlord's approval at the
time Landlord approves the plans and specifications for the Premises as
described in Exhibit C hereto. Landlord shall not unreasonably withhold consent
of the design of Tenant's Ground Satellite Area enclosure. The Tenant must keep
the Ground Satellite Area in a clean and orderly condition at its sole cost and
expense. The Roof Satellite and other equipment required for same shall be
mounted on a self-mounting/supporting pedestal that does not require penetration
of the roof membrane and one antenna of two (2) inch diameter that may not
extend higher than sixteen (16) feet from the primary roof surface in one
location over the dispatch center to be located near the center of the Premises
and the remainder not to exceed eight (8) feet from the primary roof surface.
All satellite dishes shall be connected to the Premises through lines in
appropriate utility raceways in the Building (the dishes, pedestals and
connecting equipment are hereinafter referred to as the "Equipment"). Equipment
in the Building (but not the Ground Satellite Area and not in a part of the
Premises) shall be in locations designated by Landlord; it being understood and
agreed that the exact location may be designated by Landlord and is subject to
change from time to time by Landlord, at Landlord's cost and expense; provided,
however, that such changed location shall permit satellite reception.
49.2 Tenant shall be responsible at its sole cost for construction,
installation, relocation and maintenance of the Equipment; provided, however,
that Landlord shall install any necessary conduit from the Ground Satellite Area
through the appropriate utility raceways in the Building to the Premises at
Tenant's sole cost and expense and the connecting Equipment shall be installed
in the conduit by Tenant at Tenant's sole cost and expense. The Allowance
described on Exhibit C hereto may be used to pay for the Equipment installation
costs. All installations shall be subject to the requirements set forth under
Section 9 of the Lease. Tenant agrees not to install the Equipment without first
submitting plans and specifications and obtaining the written approval thereof
by Landlord, such approval or consent not being unreasonably withheld. Tenant
agrees not to make any subsequent alterations in or additions to the Equipment
without in each instance obtaining the prior written consent of Landlord, such
approval or consent not being unreasonably withheld. Tenant at its expense shall
obtain all necessary governmental permits and certificates required for such
construction, installation, authorization and use, as well as approvals
necessary under any declaration of covenants or any maintenance and/or easement
agreements affecting the Real Property or the Building Complex, including,
without limitation, required consent of the architectural control committee of
the Denver International Business Center. All construction, installation,
alterations, repair and maintenance work shall be performed in a manner which
will not unreasonably interfere with, delay, or impose any additional expenses
upon Landlord in the maintenance or operation of the Building Complex or upon
other tenants' use of their premises.
49.3 Tenant shall maintain the Equipment and keep it in good repair and
keep the Ground Satellite Area and the roof free from all trash, debris and
waste resulting from the use thereof by Tenant. Tenant shall pay or cause to be
paid all costs for work done by Tenant or caused to be done by Tenant related to
the Equipment of a character which will or may result in liens on Landlord's
interest therein, in accordance with the provisions of the Lease. The Equipment
shall be operated in strict compliance with all governmental and
quasi-governmental laws, codes, rules or regulations. Tenant shall have access
to the rooftop Equipment; provided, however, that Tenant shall give Landlord
reasonable prior notice of the need for access and such access shall be subject
to such reasonable rules as Landlord may adopt, including, but not limited to,
the requirement that an agent of Landlord accompany persons during such roof
access.
49.4 Tenant hereby agrees to indemnify, defend and save Landlord
harmless of and from all liability, loss, damage, costs or expenses, including
reasonable attorneys' fees, on account of any claims of any nature whatsoever,
including work performed, materials or supplies furnished, damage to the
property or injury to persons caused by negligence or misconduct of Tenant,
Tenant's agents, servants, or employees or any other persons entering upon the
roof under express or implied invitation of Tenant or where such injury is the
result of the violation of the provisions of this Lease by any such person or
caused by the construction, installation, alteration, repair or use of the
Equipment.
49.5 Tenant shall have the right to install the Equipment in the Ground
Satellite Area and/or roof throughout the Term; provided, however, the terms of
the Option granted in Section 50 hereof may include a requirement for Tenant to
pay for such rights if applicable pursuant to the terms of such Section 50. Upon
the expiration or other termination of the Term of this Lease, Tenant shall
remove its Equipment and all other improvements or alterations related thereto
and restore the Building, the roof and Ground Satellite Area to its original
condition, to the extent of any damages or changes caused by the installation or
use of the Equipment. In the event Tenant fails to vacate the roof space on a
timely basis as required, Tenant shall be responsible to Landlord for all costs
and expenses incurred by Landlord as a result of such failure, including, but
not limited to, any amounts required to be paid to third parties, which
obligation shall survive the termination of the Lease.
49.6 Tenant acknowledges that the Equipment shall be of such type and
frequencies, and operated in a manner that will not cause interference with
other tenants' business in the Building Complex, including operation of
transmitting and receiving devices. Landlord will advise other tenants or users
desiring receiving and transmitting equipment who must obtain Landlord's prior
approval that their use is subject to that of Tenant's Equipment then installed;
provided, however, Tenant will make reasonable efforts to accommodate other
users receiving and transmitting satellite needs about which it has been
notified in writing. Landlord and Tenant agree that Landlord shall arbitrate any
disputes between Tenant and other tenants concerning alleged interference by
operation of the Equipment, whether claimed to be caused by Tenant or such other
tenants, and Tenant shall be bound by Landlord's determination in such disputes.
If Tenant's installation or operation of the Equipment results in an increase in
Landlord's insurance on the Building Complex at any time during the Term of this
Lease, Tenant shall be responsible for the payment of such increased premiums
attributable to Tenant's installation or operation, as reasonably determined by
Landlord. Tenant shall pay such amount upon receipt of billing therefor by
Landlord together with the insurance documentation relied upon by Landlord in
making such determination. Tenant shall not install or operate the Equipment in
a manner that results in cancellation or termination of Landlord's insurance.
49.7 Tenant shall neither hold nor attempt to hold Landlord liable for
an injury or damage either proximate or remote, occurring through or caused by
fire, water, steam or other repairs, alterations, injury, accident or any other
cause to the Equipment, or to other personal property of Tenant kept with the
Equipment or in other parts of the Real Property, whether by reason of the
negligence or default of Landlord or any occupants of the Building or any other
person or otherwise and the keeping or storing of all property of Tenant shall
be the sole risk of Tenant.
50. Option to Extend.
As additional consideration for the covenants of Tenant hereunder,
Landlord hereby grants unto Tenant an option (the "Option") to extend the term
of this Lease for * years each (the "First" or "Second Option Term"). The Option
shall apply to all space then under the Lease at the time the respective Option
Term would commence and shall be on the following terms and conditions:
50.1 Written notice of Tenant's interest in exercising each Option
shall be given to Landlord not earlier than * months and not later than * months
prior to the expiration of the Primary Lease Term or First Option Term as the
case may be ("Tenant's Notice"). Not later than * days after receiving Tenant's
Notice, Landlord shall give to Tenant notice of the terms, conditions and rental
rate applicable during the respective Option Term, in accordance with
subparagraph E below ("Landlord's Notice")
50.2 Tenant shall have * days following Tenant's receipt of Landlord's
Notice within which to exercise the Option by delivering written notice of such
exercise to Landlord under the terms, conditions and rental rate set forth in
Landlord's Notice. If Tenant gives such Notice and provided the other conditions
to the extension have been satisfied, the Term of the Lease shall be
automatically extended for the respective Option Term without requiring further
action by the parties; provided, however, the parties shall execute an amendment
to the Lease to confirm the terms of the extension.
50.3 Unless Landlord is timely notified by Tenant in accordance with
subparagraphs A and B above, the respective Option shall terminate and the Lease
shall expire in accordance with its terms, at the end of the Primary Lease Term
or First Option Term, as the case may be.
50.4 Tenant's Option to extend shall continue only if as of the date of
Tenant's Notice or as of the date of commencement of the respective Option Term,
Tenant: (i) shall not be in default under the Lease at the time of exercise of
the option or at the time of the commencement of the respective Option Terms; or
(ii) Tenant shall not have sublet more than * of the Premises nor assigned its
interest in the Lease other than an assignment to an Affiliate of Tenant
consented to under the terms of Section 13 hereof (which shall not be a
violation hereof) nor vacated the Premises.
50.5 The Option granted hereunder shall be upon the same terms and
conditions of this Lease, except for the rental to be paid by Tenant, and
except, after the Second Option Term, there shall be no further option to extend
the Lease. The Base Rent applicable during each Option Term shall be comparable
to that for comparable space in a comparable building complex as of the date of
Landlord's Notice but in no event shall the rate be less than the Base Rent
which Tenant is paying immediately prior to commencement of the respective
Option Term.
50.6 After exercise of the Option as to the Second Option Term, there
shall be no further rights on the part of Tenant to extend the Term of the
Lease.
50.7 In order to have the right to the Second Option Term, Tenant shall
be required to have exercised the Option as to the First Option Term.
The parties hereto have executed this Lease to be effective on the date and year
first above written.
LANDLORD: TENANT:
FRONTIER CENTER ONE LLC, FRONTIER AIRLINES, INC.,
a Colorado limited liability company a Colorado corporation
By:
SHEA FRONTIER CENTER, LLC,
a California limited liability company, By: _____________________________
its Manager Its: _____________________________
By: J.F. Shea Co., Inc., a Nevada
corporation, its Manager ATTEST:
By: ________________________________ By: ____________________________
Assistant Secretary Title: _____________________________
By: ________________________________
Assistant Secretary
EXHIBITS
Exhibit A - Depiction of Premises
Exhibit A-1 - Ground Satellite Area
Exhibit B - The Building Complex
Exhibit C - Work Agreement
Exhibit D - Sign Criteria
Exhibit E - Commencement Certificate
Exhibit F - Rules and Regulations
Exhibit G - Parking License
Exhibit G-1 - Parking Map
Exhibit H - [Intentionally Deleted]
Exhibit I - Janitorial Requirements
EXHIBIT A
DEPICTION OF PREMISES
EXHIBIT A-1
GROUND SATELLITE AREA
EXHIBIT B
THE BUILDING COMPLEX
A PARCEL OF LAND LOCATED IN THE NORTHEAST QUARTER OF SECTION 4, TOWNSHIP 3
SOUTH, RANGE 66 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY AND COUNTY OF DENVER,
STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID SECTION 4, WHENCE THE EAST QUARTER
CORNER THEREOF BEARS SOUTH 00 DEGREES 48 MINUTES 54 SECONDS WEST, A DISTANCE OF
2629.96 FEET; THENCE SOUTH 00 DEGREES 48 MINUTES 54 SECONDS WEST, ALONG THE EAST
LINE OF THE NORTHEAST QUARTER OF SAID SECTION 4, A DISTANCE OF 932.42 FEET;
THENCE NORTH 89 DEGREES 11 MINUTES 06 SECONDS WEST, A DISTANCE OF 70.00 FEET TO
A POINT ON THE WEST RIGHT-OF-WAY LINE OF TOWER ROAD, BEING THE POINT OF
BEGINNING; THENCE SOUTH 00 DEGREES 48 MINUTES 54 SECONDS WEST, ALONG SAID WEST
RIGHT-OF-WAY LINE, A DISTANCE OF 382.56 FEET; THENCE NORTH 89 DEGREES 48 MINUTES
51 SECONDS WEST, A DISTANCE OF 315.05 FEET; THENCE SOUTH 00 DEGREES 00 MINUTES
00 SECONDS WEST, A DISTANCE OF 142.76 FEET; THENCE NORTH 90 DEGREES 00 MINUTES
00 SECONDS WEST, A DISTANCE OF 188.36 FEET; THENCE NORTH 00 DEGREES 49 MINUTES
56 SECONDS EAST, A DISTANCE OF 30.50 FEET; THENCE NORTH 90 DEGREES 00 MINUTES 00
SECONDS WEST, A DISTANCE OF 51.79 FEET; THENCE NORTH 00 DEGREES 49 MINUTES 56
SECONDS EAST, A DISTANCE OF 237.73 FEET TO A POINT OF CURVE; THENCE ALONG A
CURVE TO THE LEFT HAVING A DELTA OF 25 DEGREES 16 MINUTES 23 SECONDS, A RADIUS
OF 538.00 FEET AND AN ARC LENGTH OF 237.31 FEET; THENCE NORTH 65 DEGREES 33
MINUTES 34 SECONDS EAST, A DISTANCE OF 63.38 FEET; THENCE SOUTH 89 DEGREES 56
MINUTES 19 SECONDS EAST, A DISTANCE OF 547.19 FEET TO THE POINT OF BEGINNING.
To be known as: Lot 3, Block 1
Denver International Business Center Filing No. 8
City and County of Denver
State of Colorado
EXHIBIT C
WORK AGREEMENT
Re: Tenant: Frontier Airlines, Inc., a Colorado corporation
Premises: Approximately * rentable square feet of floor space
known as Suite 101 (the "Premises")
Concurrently herewith, you as Tenant and the undersigned as Landlord
have executed a Lease (the "Lease") covering the Premises (the provisions of the
Lease are hereby incorporated by reference as if fully set forth herein).
Landlord has agreed to complete the base building items described on Schedule 1
to this Exhibit C. All such base building items to be completed by Landlord are
referred to herein as "Landlord's Work." All work that is necessary to permit
Tenant to commence its business in the Premises , including, without limitation,
the Tenant Improvements set forth on Schedule 1 to this Exhibit C, except
Landlord's Work including installation of trade fixtures and furnishings shall
be completed by Tenant ("Tenant Work") at Tenant's cost and expense (other than
the Tenant Finish Allowance described below). In consideration of the execution
of the Lease, Landlord and Tenant mutually agree as set forth below:
A. Landlord's Work.
1. Landlord shall complete Landlord's Work in accordance with the
working drawings prepared by The Neenan Company dated April 11, 2000
(the "Approved Plan").
2.
3. 2. Landlord's contractor shall perform Landlord's Work
substantially in accordance with the Approved Plan at Landlord's cost
and expense. Other than Landlord's Work, Landlord shall have no
obligation for completion or remodeling of the Premises.
4.
B. Tenant's Work.
1. Tenant may contract with any architect/designer of its
choice. Services requested by Tenant in connection with design and drawing
preparation shall be at Tenant's sole cost and expense. Landlord makes no
representation or guarantee with respect to fees, services, schedules or other
items to be provided by the architect/designer and shall in no way be
responsible for such architect/designer's work product. Tenant's
architect/designer shall prepare plans and specifications for Tenant's Work to
be completed in the Premises (the "Plans and Specifications"). All Plans and
Specifications shall be subject to review and approval by Landlord, Landlord's
architect and Landlord's engineer prior to commencement of Tenant's Work. All
costs of preparation, review and approval, including review and approval by
Landlord, Landlord's architect, and/or Landlord's engineer, shall be borne by
Landlord. Landlord shall, within * Business Days after receipt of the Plans and
Specifications by Landlord for its review and approval, submit to Tenant the
Plans and Specifications with the required approvals noted thereon, or submit
comments to Tenant setting forth changes to be made in the Plans and
Specifications. If changes are required by Landlord, Tenant shall have the Plans
and Specifications modified and resubmitted to Landlord for approval and such
process shall be repeated until Landlord, Landlord's architect, and/or
Landlord's engineer have approved the Plans and Specifications for the Premises
(hereinafter referred to as "Approved Plans and Specifications"). Changes to the
Approved Plans and Specifications shall be made only upon prior written approval
of Landlord and shall be at Tenant's sole cost and expense.
2. Tenant shall contract directly for the Tenant's Work to be
completed in accordance with the Approved Plans and Specifications. Tenant's
contractor shall bill Tenant and Tenant shall be solely responsible for paying
all costs for Tenant's Work as set forth on the Approved Plans and
Specifications. Tenant and Tenant's contractor will be required to adhere to the
requirements set forth in Schedule 2 attached hereto in connection with
performance of Tenant's Work and the contract between Tenant and Tenant's
contractor shall incorporate all of the provisions of Schedule 2. All Tenant's
Work shall (i) be performed pursuant to written contracts with workmen and
mechanics, which shall be acceptable to Landlord; (ii) comply with all
reasonable restrictions and requirements as Landlord may impose with respect to
Tenant's Work; (iii) conform to the standards of the Building Complex; (iv) be
done in a safe and lawful manner in compliance with applicable laws,
governmental regulations, and requirements; and (v) be done so as not to
interfere with Landlord's completion of Landlord's Work in the Building Complex
and the Premises. Tenant shall cause such contractor to take all steps necessary
to cooperate in the coordination of the performance of Tenant's Work with the
work of Landlord or Landlord's contractors in the Premises or in the Building
Complex, including, without limitation, exchanging information about and
coordinating their respective schedules, attending coordination meetings, and
cooperating in allowing and obtaining access to and availability of portions of
the site for performance of Tenant's Work and the work of such other
contractors. Tenant may contract with Landlord's contractor to perform Tenant's
Work which contract must also meet the terms and conditions of this paragraph.
Notwithstanding the foregoing, Landlord's contractor will be required to
cooperate and coordinate to the extent possible with Tenant's contractor, so as
not to cause any unreasonable delays in Tenant's Work, provided, however, the
parties agree that because of the penalties to Landlord set forth in Section 3.2
of the Lease, if a conflict arises, Landlord's contractor's schedule shall have
priority.
3. Landlord has agreed to pay that portion of the costs of
Tenant's Work up to a maximum of $* per rentable square foot of the Premises
(the "Tenant Work Allowance"). The cost of Tenant's Work payable from the Tenant
Work Allowance shall include all costs attributable to design and construction
of the Tenant's Work including but not limited to, services, fees and expenses
of the Tenant's architect and Tenant's engineers; costs of permits and licenses
required for completion of the Tenant's Work; labor, materials, fees and
expenses of Tenant's contractor in completing the Tenant's Work. Landlord agrees
to provide up to an additional $* per rentable square foot of the Premises, in
addition to the Tenant Work Allowance, such amount to be applied toward costs of
Tenant's Work (the "Additional Allowance"). Such Additional Allowance shall be
payable to Landlord by Tenant as Additional Rent in addition to the Base Rent in
an amount calculated by amortizing the Additional Allowance over the Primary
Lease Term at * per annum. If for any reason at any time during the Lease Term,
Tenant is in default, which default is not cured with an applicable cure period,
or in the event the Lease Term is terminated for any reason prior to the
expiration of the Lease Term, the Additional Allowance shall be immediately due
and payable upon the occurrence of such default. Tenant's obligation to repay
Landlord the Additional Allowance shall survive the expiration or termination of
the Lease. All costs incurred in the completion of Tenant's Work in excess of
the Tenant Work Allowance and the Additional Allowance shall be at Tenant's sole
cost and expense and shall be promptly paid in full by Tenant to Landlord upon
receipt of billing therefor. Any amount of the Tenant Work Allowance (but not
Additional Allowance) not utilized for Tenant's Work may be applied to next due
Base Rent under the Lease.
4. Tenant's Work Allowance (and after it has been depleted,
the Additional Allowance if Tenant provides Landlord written notice that Tenant
elects to use the Additional Allowance and wishes Landlord to disburse it for
payments hereunder and Landlord and Tenant have executed an amendment to this
Lease restating the Base Rent to include the Additional Allowance) shall be paid
to Tenant periodically as portions of Tenant's Work have been completed in
accordance with the Approved Plans and Specifications and the provisions hereof:
a. Before the first application of payment, Tenant shall submit a
schedule of values to Landlord allocating the Tenant's Work Allowance
to various portions of Tenant's Work.
b. On or before the 5th day of each month following the
commencement of the work, Tenant shall submit to the Landlord an
application for payment on account of Tenant's Work performed during
the payment period covered by the application for payment. For
purposes of this Lease, the payment period shall be the first day of
each month and run through the last day of each month. On the last day
of each payment period, Tenant shall determine as of the date the
percentage of completion of the work covered by each line item of the
approved schedule of values. Each monthly application for payment
shall be based upon the percentage of completion of each such line
item of Tenant's Work and shall be in the sum of the amounts
determined by multiplying the value of Tenant's Work of each line item
as set forth in the approved schedule of values by the percentage of
completion determined as to each line item on the last day of each
payment period less the amounts previously paid with respect to such
line items.
c. Each application for payment shall be accompanied by lien
waivers and affidavits from Tenant's contractor and its subcontractors
in a form reasonably satisfactory to Landlord attributable to the
immediately preceding month's application for payment. Additionally,
Tenant's contractor shall deliver an affidavit to accompany each
application for payment setting forth the names and addresses of the
subcontractors' materialmen and suppliers and the dollar amount of
liability which has been contracted for with each such subcontractor
materialman or supplier and the amounts requested by each in that
month's application for payment.
d. The Landlord will review Tenant's application for payment
within * Business Days after receipt and will pay Tenant approved
amounts within * days after submittal of a complete application.
Notwithstanding anything contained in this Lease to the contrary,
Landlord may decline to make a payment to Tenant of all or a portion
of any application for payment to the extent as may be necessary to
protect Landlord from loss because of defective work; third party
claims filed or reasonable evidence indicating probable filing of such
claims; failure of the Tenant to make payment to contractors or
subcontractors or for labor, materials or equipment; reasonable
evidence that the Tenant's Work cannot be completed for the unpaid
balance of the Tenant Work Allowance. In the event Landlord withholds
payment on account of any of the foregoing reasons, Landlord shall
provide written notice of such reasons to Tenant. When the grounds for
withholding of payment are removed, payment shall be made promptly for
amounts withheld because of such grounds. The application for payment
shall reflect retainage of * which Landlord shall hold until
Landlord's final payment, described in subparagraph e below. Landlord
in its reasonable discretion may agree to not withhold any further
retainage when Tenant's Work is * complete provided that Landlord is
satisfied with the progress and quality of the Tenant's Work.
e. Landlord's final payment to Tenant of the Tenant's Work
Allowance (and Additional Allowance, if applicable) and the retainage
shall not become due until Tenant submits to Landlord (i) an affidavit
signed by Tenant that upon payment of the remaining portion of the
Tenant's Work Allowance, all payrolls, bills for materials and any
equipment and other indebtedness connected with the subject portion of
Tenant's Work for which Landlord or its property might in any way be
responsible, have been paid or otherwise satisfied; (ii) the
certificate by Tenant's architect that the subject portion of Tenant's
Work is complete in accordance with the Approved Plans and
Specification; (iii) a Certificate of Occupancy (temporary or final)
or equivalent sign off has been issued by the appropriate governmental
authority permitting use of the Premises for the Permitted Use under
the Lease and a copy of such certificate of occupancy has been
delivered to Landlord; (iv) other data establishing the final cost of
Tenant's Work, reasonable evidence that Tenant has satisfied all of
its construction obligations such as receipts, releases and waivers of
liens arising out of Tenant's Work to the extent and in such form as
may be reasonably designated by Landlord.
5. Tenant and Tenant's contractor shall indemnify Landlord from
any mechanic's or materialman's lien against Landlord's interest in
the Building Complex or Premises. If a lien is filed, Tenant or
Tenant's contractor shall, at Tenant's option, remove the lien by
paying in it full, furnish Landlord a bond sufficient to discharge the
lien or deposit in an escrow approved by Landlord *% of the amount of
such lien and release the lien from the real property records of the
City and County of Denver. In the event Tenant or Tenant's contractor
shall fail to remove the lien, provide a bond or cash escrow, Tenant
shall immediately be in default under the Lease without the necessity
of further notice from Landlord and Landlord shall be entitled to take
such action at law, in equity or under the Lease as Landlord deems
appropriate and Tenant shall be responsible for all monies Landlord
may pay in discharging any lien including all costs and reasonable
attorneys' fees incurred by Landlord in settling, defending against,
appealing or in any manner dealing with lien.
C. Notwithstanding the provisions of the Lease, the Rent Commencement
Date will not be delayed or extended by any Tenant delay, which includes,
without limitation, delay: (i) in the preparation, finalization or approval of
the working drawings for Landlord's Work caused by Tenant, its agents or
employees; (ii) caused by modifications, revisions and changes to the final
working drawings due to changes requested by Tenant, its agents or employees or
objections from Tenant; (iii) in the delivery or installation of any special or
non-standard building items specified by Tenant; or (iv) of any kind or nature
in the completion of Landlord's Work caused by Tenant, its agents or employees
("Tenant Delay"). Tenant shall pay all costs arising from Tenant Delay.
D. Tenant has designated Ms. Joan Osterman and/or Mr. Cornelius Baas
as its sole representative with respect to the matters set forth in this Work
Agreement, who shall have full authority and responsibility to act on behalf of
the Tenant as required in this Work Agreement. Tenant shall have the right, by
written notice to Landlord, to change its designated representatives.
E. Landlord has designated Mr. David Goldberg and/or Mr. Mark
Throckmorton as its representatives with respect to Landlord's responsibilities
under this Work Agreement, who shall have full authority and responsibility to
act on behalf of the Landlord as required in this Work Agreement. Landlord shall
have the right, by written notice to Tenant, to change its designated
representatives.
F. Any and all notices required to be given hereunder shall be in
writing in accordance with the terms and provisions of the Lease. However, in
all cases notices shall also be given to those individuals to be specified
pursuant to Paragraphs D and E above.
FRONTIER CENTER ONE LLC,
a Colorado limited liability company
By: SHEA FRONTIER CENTER, LLC,
a California limited liability company,
its Manager
By: J.F. Shea Co., Inc., a Nevada
corporation, its Manager
By: ________________________________
Assistant Secretary
By: ________________________________
Assistant Secretary
"Landlord"
AGREED AND ACCEPTED
this day of , 2000.
----- -----------------
FRONTIER AIRLINES, INC.,
a Colorado corporation
By:
Title:
ATTEST:
By:
Title:
SCHEDULE 1 TO EXHIBIT C WORK AGREEMENT
ITEM BASE BUILDING TENANT IMPROVEMENTS
Site a. Site to be paved, striped, and landscaped. a. No requirement.
Structure a. Site cast concrete and structural steel frame. a. No requirement.
b. Site cast concrete slab on grade.
c. Roof deck and roofing.
Core Service Areas a. Utility service entry provided. a. Distribution by Tenant.
Lobby Improvements a. No requirement. a. Dedicated Tenant's lobbies per Tenant
plans.
Toilet Room a. No requirement. a. Dedicated toilet rooms to accommodate
Tenant's projected occupancy.
Perimeter Walls a. Fur and insulate perimeter walls as a. Gypsum board, paint, wall coverings,
follows: Walls R13 base, and window sill finishes per
minimum building standard.
Roof R19 minimum
b. Complete exterior finishes including exterior b. Install building standard window
window systems and door systems. All coverings; optional exercise room
perimeter window and door glass shall have a exterior door.
minimum shading coefficient of 0.56.
Interior Columns a. Structural requirements only. a. Finishes per code and Tenant plan.
Interior Partitions a. No requirement. a. Construct interior gypsum board
partitions as required by Tenant's space
plan. Construct demising wall
con-sisting of wall framing and gypsum
board finishes on Tenant side only.
b. No requirement. b. Finishes per Tenant plan.
Ceilings a. No requirement. b. Furnish and install building standard 2'
x 4' acoustical ceiling grid and tile
throughout leasable area.
Floor Covering a. No requirement. a. Furnish and install all Tenant areas with
building standard or better floor
coverings. Building standard shall be a
minimum of $*/Square Yard installed.
Doors, Frames & a. Furnish and install exterior doors, frames a. Furnish, install and finish building
Hardware and hardware with mutually acceptable locks interior standard doors, frames and
and closers. hardware as required by Tenant's space
plan.
HVAC a. Furnish and install roof top HVAC units with a. Furnish and install distribution duct
a maximum 157.5 tons of cooling. Landlord's runs from roof top HVAC units as
mechanical engineer shall design the units in required. The supplemental computer roof
conjunction with Tenant's mechanical engineer. top units shall be provided by Tenant.
b. Landlord will provide gas service hookup and b. Furnish and install separate HVAC units
all roof penetrations. for non-standard loads (if any). Tenant
will provide all electrical service
hookups for HVAC units electrical wiring
and conduit).
c. Tenant pays cost of all HVAC electrical
and control related roof penetrations.
Plumbing a. Furnish and install waste line down center of a. Provide distribution waste and vent lines
building per applicable code. as required to facilitate tenant plan.
Tenant shall be responsible for
maintaining flow only in that portion of
the drain line(s) that serves plumbing
fixtures within the boundaries of its
premises. All other drain lines will be
served by Landlord.
b. Furnish and install water service to Tenant b. Extension of water service within Tenant
space, minimum size 1-1/2" to common single space as required.
meter for entire building. Landlord will
provide a 2" capped and valved stub to
Tenant's space from riser room.
c. Furnish and install all plumbing fixtures
and required connections per code and
tenant finish plan.
Fire Protection and a. Furnish and install complete fire protection a. Relocate and add standard building
Sprinkler System system per code for unimproved base building; sprinkler drops and heads for proper
risers, mains and branch lines with brass coverage as dictated by the Tenant's
upright sprinkler heads for a wet pipe system space plan and code.
at 1 head per 125 square feet of spacing.
Electrical a. Furnish and install electrical service a. Power and lighting distribution per code
including transformers, to dedicated and Tenant specifications.
electrical room to meet a minimum load
requirement of 480 volt, 3-phase, 1125 amp
demand load maximum for Tenant.
Fire Extinguishers a. No requirement. a. Furnish and install fire extinguishers
and cabinets as required by space layout
and code.
Satellite Dish a. Landlord shall provide a walled enclosure a. Provide and install including electrical
sufficient in size to accommodate the distribution and any building
building transformers, building gas metering modi-fications.
system, electrical metering system, and the
Tenant satellite dish and back up generators.
Uninterrupted Power a. No requirement. a. All service provisions by Tenant.
Source and Back Up
Generation
SCHEDULE 2 TO EXHIBIT C WORK AGREEMENT
PROCEDURE AND SCHEDULES FOR COMPLETION
OF TENANT WORK BY TENANT
Tenant and Tenant's Contractor and the contracts between Tenant and Tenant's
Contractors, to be entered into in connection with the performance of Tenant's
Work, shall conform to the following rules, regulations, and requirements, which
shall be incorporated into such contracts. Tenant shall ensure that all of
Tenant's Contractors act in conformity with the provisions set forth herein. In
the event of any conflict between any other terms or provisions of Tenant's
contracts and the terms and provisions set forth below, the terms and provisions
set forth below shall control.
1. Tenant shall start construction of Tenant's Work in the Premises not
later than * days from issuance of a building permit, and shall carry such
construction to completion with all due diligence.
2. Tenant shall submit to Landlord, in writing, at least *days prior to
the commencement of construction, the following information:
A. The names and addresses of the general, mechanical and
electrical contractors, if any, Tenant intends to engage in the construction of
Tenant's Work and copies of proposed contracts executed by Tenant. (The term
"Contractor" as used hereinafter shall mean Tenant's general Contractor or, if
Tenant does not use a general Contractor, then all Contractors with whom Tenant
contracts directly for Tenant's Work. The term "Subcontractors" shall mean and
refer to all entities contracting with the Contractor to complete Tenant's
Work.)
B. A proposed schedule setting forth the commencement date of
construction of Tenant's Work and the date of completion of construction of
Tenant's Work, fixturing work, dates for proposed interruption of services (if
any required) and the date of projected opening.
C. Copies of performance and/or labor and material bonds, as
required by Landlord, from the Contractor and Subcontractors.
D. Final itemized statement of estimated construction costs,
including architectural, engineering and contracting fees.
E. Evidence of insurance as called for herein. Tenant shall
secure, pay for and maintain, or cause its Contractor(s) to secure, pay for and
maintain, during the continuance of and for * year after completion of
construction and fixturing work within Tenant's Premises, all of the insurance
policies required and in the amounts as set forth herein. Tenant shall not
permit, and Tenant's contract shall prohibit its Contractor to commence any work
until all required insurance has been obtained and certified copies of policies
have been delivered to Landlord.
3. Insurance: The following insurance requirements shall be complied
with:
A. Minimum Coverage - Prior to any Tenant's Work being
commenced by Tenant's Contractor or Subcontractors, Tenant or Tenant's
Contractor (as set forth below), shall obtain and maintain insurance with
minimum coverage and limits to protect Landlord and Landlord's managing agent
from the claims hereinafter set forth which may arise or result from performance
of any Tenant's Work, whether such work be done by Tenant's Contractor or by any
of Subcontractors or by anyone directly or indirectly employed by Tenant's
Contractor or Subcontractors or by anyone for whose acts Tenant's Contractor or
Subcontractors may be liable as set forth as follows (such limits may be
provided by an appropriate "umbrella" policy):
1. Workmen's Compensation insurance at the statutory limits provided
for by the State of Colorado;
2. Employer's liability insurance at a limit of not less than $* for
all damages arising from each accident;
3. Comprehensive general liability insurance covering: (i) Operations
Premises liability; (ii) Completed operations; (iii) Product liability; (iv)
Contractual liability; (v) Broad form property damage endorsement and property
damage caused by conditions otherwise subject to exclusion for explosion,
collapse or underground damage; (vi) Fire legal liability, with the following
insurance limits: Bodily Injury: $* each occurrence; $* general aggregate and $*
products/completed operation aggregate;
4. Comprehensive automobile liability insurance covering all owned,
hired or non-owned vehicles including the loading and unloading thereof with
limits of no less than: $* combined single limit each occurrence; Automobile
Property Damage: $* each person;
5. Physical damage insurance covering the completed value of the
Tenant's Work which shall afford coverage against "all risks" for physical loss
or damage.
B. Cancellation - All such insurance shall be carried with a
company or companies reasonably satisfactory to Landlord and Landlord's managing
agent and the insurance described in (3), (4) and (5) above, and shall name
Landlord and Landlord's managing agent and their employees and agents as
additional insured parties. In addition, each policy shall provide that it will
not be canceled or altered except after * days advance written notice to
Landlord, and the certificate of insurance shall so state.
C. Policy Termination -Tenant's Contractor shall maintain all
insurance required hereunder during the completion of Tenant's Work and for a
period ending * year after the date of completion of all Tenant's Work.
D. Policies -Either Tenant or Tenant's Contractor may provide
the insurance required hereunder except that Tenant's Contractor shall at a
minimum provide the insurance described in (1), (2) and (3) of subparagraph 3(a)
above. Prior to commencement of work by Tenant's Contractor, it shall deliver
two (2) copies of the aforementioned policies or evidence of policies such
insurance to Landlord. All policies shall be deemed primary over any other valid
or collectible insurance carried by Landlord or Landlord's managing agent. Such
policies must be approved by Landlord prior to commencement of said work.
Without the express written consent of the Landlord, Tenant agrees that it shall
not allow any Contractor or subcontractor to commence work within the Building
until such entity has obtained the insurance required above. Landlord shall have
ten (10) Business Days to disapprove such policies or they will be deemed
approved.
E. Waiver of Subrogation - Tenant and Tenant's Contractor and
Subcontractors shall waive all rights against each other and the subcontractors,
sub-subcontractors, agents and employees, each of the other for damages caused
by fire or other perils available under the normal "All Risk" I.S.0. insurance
policy on the work itself and the Building.
4. As provided above, Tenant shall notify Landlord of the names of
the proposed Tenant's Work general, mechanical and electrical contractors. All
Contractors and Subcontractors engaged by Tenant shall be bondable, licensed
contractors, capable of performing quality workmanship and working in harmony
with Landlord's general contractor and other contractors on the job. All work
shall be coordinated with the general project work. Landlord shall have the
right to require Tenant's Contractors to provide payment and performance bonds
for any or all Tenant's Work, such bonds to be paid for out of Tenant's Work
Allowance if such funds are available. Any bond shall be requested and provided
prior to the commencement of Tenant's Work.
5. Tenant's Contractor and construction shall comply in all
respects with applicable federal, state, county and/or local statutes,
ordinances, regulations, laws and codes. All required building and other permits
in connection with the construction and completion of Tenant's Work shall be
obtained and paid for by Tenant out of Tenant's Work Allowance if such funds are
available. If either party observes that any Tenant's Work is at variance in any
respect with any applicable codes, ordinances, laws, rules and regulations, it
shall promptly notify the other party and Landlord in writing, and any necessary
changes shall be made by Tenant. If Tenant's Contractor performs any Tenant's
Work that it knows is contrary to such codes, laws, ordinances, rules and
regulations, and fails to deliver such notice to the Tenant and Landlord,
Tenant's Contractor shall assume full responsibility therefor and shall bear all
costs attributable to repair, replacement or correction. Tenant and Tenant's
Contractor and its subcontractors shall comply with Federal, State and local tax
laws, social security acts, unemployment compensation acts and such other acts
and laws as are applicable to the performance of Tenant's Work.
6. All contracts shall be in writing, and no work shall be done
except pursuant to such contracts. Tenant'scontract with Tenant's Contractor
shall be subject to Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed. Any approved contracts shall not be amended or
modified without approval by Landlord, which consents shall not be unreasonably
withheld or delayed. The Tenant's contract shall conform with the provisions of
the Lease, including all provisions herein, and shall obligate the Tenant's
Contractor to complete Tenant's Work in accordance with the schedule referred to
in Paragraph 2(b) above.
7. Work which Landlord shall have the right to have performed on
behalf of and for the benefit of Tenant shall be limited to work which Landlord
deems necessary to be done on an emergency basis and which pertains to
structural components, the general utility systems for the project, and the
erection of temporary barricades and temporary signs, per standard project
details and criteria, during construction or Tenant's Work which in Landlord's
reasonable opinion is not being performed in compliance with this Schedule 2.
8. Tenant's Work shall be subject to the inspection and reasonable
approval of Landlord, Landlord's architect and general Contractor. Such
inspection shall be for Landlord's sole benefit and shall in no event be
construed as any benefit to, nor may Tenant rely thereon. All of Tenant's Work
shall be first quality, new materials and equipment and meet or exceed those
standards or qualities (as judged by Landlord's architect) contemplated at the
Building Complex.
9. Tenant shall apply and pay for all utility meters except where
metered service is provided by Landlord or public service agency.
10. The Tenant's contract shall include a statement requiring the
Contractor and all Subcontractors, laborers, and materialmen to execute a lien
waiver for any interim and final payments. A copy of the executed waiver or
notice of refusal is to be immediately forwarded to the Landlord.
11. Tenant and Tenant's Contractor shall indemnify and hold
harmless Landlord, Tenant and their respective representatives, agents and
employees from and against all claims, damages, losses, and expenses, including,
but not limited to, reasonable attorney's fees arising out of or resulting from
the performance of Tenant's Work or Tenant's Contractor's performance of the
Tenant's contract which are: (a) caused in whole or in part by any negligence or
omission of Tenant's Contractor, any subcontractor or anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be
liable; and (b) attributable to bodily injury, sickness, disease or death, or
the destruction of tangible personal property, including loss of use resulting
from any of the foregoing acts and all Tenant's Work contracts shall reflect
this indemnity. In any and all claims against the Landlord, Tenant or their
respective representatives or any of their agents or employees or by an employee
of Tenant's Contractor, any subcontractor, anyone directly or indirectly
employed by any of them, or anyone for whose acts any of them may be liable. The
indemnification obligation under this Paragraph 11 shall not be limited in any
way by any limitation on the amount or type of damages, compensation or benefits
payable by or for the Tenant's Contractor or any Subcontractor under the Workers
Compensation Act, disability benefit acts, or other employee benefit acts.
12. In the event a Subcontractor or materialman files a mechanics'
lien as a result of performing work pursuant to Tenant's contract then Tenant's
Contractor shall indemnify the Tenant and Landlord from said lien and shall,
when requested by the Tenant and/or Landlord, pay the amount requested to
release the lien or furnish Tenant and Landlord (as Landlord or Tenant may
specify) either a bond sufficient to discharge the lien or deposit in an escrow
approved by Landlord and Tenant a sum equal to 150% of the amount of such lien.
Subject to any restrictions thereon posed by any mortgagee of Landlord, Tenant's
Contractor shall have the right and opportunity, in cooperation with Landlord
and Tenant, to contest the validity of any such mechanics' lien by such legal
means as are available, including the right to prosecute any appeals which may
be permitted by law so long as during the pendency of any contest or appeal, the
Tenant's Contractor shall effectively stay or prevent any official or judicial
sale of any of the real property or improvements comprising the building, upon
execution or otherwise, and so long as the Tenant's Contractor pays any final
judgment entered with respect to any such mechanics' lien and thereafter
procures and records, within a reasonable time, record satisfaction thereof. In
the event the Tenant and Landlord shall be a party to any such contest or
appeal, or any other action resulting from or arising out of the performance of
the work by Tenant's Contractor (or any of its subcontractors, agents, or
employees), Tenant's Contractor shall be responsible for all legal fees and
other costs and expenses incurred by Landlord and Tenant in any such action.
Landlord and Tenant shall have the right to obtain separate counsel of their
choice at Tenant's Contractor's expense. In the event that Tenant's Contractor
fails to pay the lien or provide a bond or cash escrow, or otherwise fails to
fully satisfy and obtain the release of any lien or claim in accordance with the
provisions hereof, Tenant's Contractor shall be obligated to pay to Tenant or
Landlord, as the case may be, all monies that the latter may pay in discharging
any such lien including all costs and reasonable attorneys' fees incurred by
Landlord or Tenant in settling, defending against, appealing or in any other
manner dealing with any such lien.
13. All risk of loss to all property of the Tenant's Contractor
and its subcontractors, including, but not limited to, tools and materials
located on the Premises, shall be the sole and exclusive responsibility of the
Tenant's Contractor and its subcontractors, and the Landlord shall have no
responsibility therefor.
14. If Tenant or Tenant's Contractor is adjudicated a bankrupt, or
if Tenant or Tenant's Contractor makes a general assignment for the benefit of
its creditors, or if a receiver is appointed on account of Tenant's Contractor's
insolvency, or if Tenant's Contractor persistently or repeatedly refuses or
fails, except in cases where delay is justified, to supply enough properly
skilled workmen or proper materials or if Tenant's Contractor persistently
disregards laws, ordinances, rules, regulations or orders of any public
authority having jurisdiction, or otherwise is guilty of a substantial violation
of a provision of Tenant's contract, then the Tenant (or Landlord in the event
of Tenant's bankruptcy, default, or assignment to creditors) may, without
prejudice to any right or remedy and after giving the Tenant's Contractor and
its surety, if any, * business days' written notice, terminate Tenant's contract
with the Contractor and in the event of Contractor's default take possession of
all materials, equipment, tools, construction equipment and machinery thereon
owned by Tenant's Contractor and shall thereafter finish all Tenant's Work being
constructed and previously contracted for by Tenant's Contractor by whatever
method it may deem expedient. In such case, Tenant's Contractor shall not be
entitled to receive any further payments from Tenant until completion of all
Tenant's Work; provided, however, that the Tenant's actions shall not release
Tenant's Contractor from any obligations to Tenant arising from its performance
or nonperformance under any contracts prior to the date of such termination.
Following the completion of such uncompleted Tenant's Work, Tenant shall pay the
Tenant's Contractor an amount equal to the aggregate of the amounts actually due
under Tenant's contract at the time of the termination of the contract, less the
cost to Tenant of completing all the Tenant's Work. Upon termination of Tenant's
contract, Tenant's Contractor shall execute and deliver all documents and take
all steps, including the legal assignment of Tenant's Contractor contractual
rights as the Tenant may require for the purpose of fully vesting in Tenant the
rights and benefits of the Tenant's Contractor under Tenant's contract, and
arising out of it. Tenant shall also pay to the Tenant's Contractor fair rental
for any equipment retained.
15. Tenant's Contractor shall warrant and agree, at its expense,
and at no expense whatsoever to Landlord or Tenant to correct or cause to be
corrected any defects in the Tenant's Work (including, but not limited to,
latent defects or defects due to defective workmanship or materials whether
supplied, installed or performed by Tenant's Contractor or any Subcontractor or
supplier) which occur within * year after Tenant's Contractor has substantially
completed the Tenant's Work, including completion of all punchlist items, (as
evidenced by the Tenant's acceptance of such Work) or for such longer period as
may be set forth in the Tenant's contract. Tenant's Contractor shall require a
similar warranty in all Subcontracts, and shall deliver to Landlord and Tenant,
together with appropriate assignments, if required, all warranties of
subcontractors and suppliers of materials, components and equipment furnished
and installed in connection with such Tenant's Work. Tenant's Contractor further
agrees that all guaranties and warranties relating to any Tenant's Work or any
materials incorporated into the Tenant's Work shall be extended to and given to
both the Landlord and the Tenant, as their respective interests in such Tenant's
Work exist, as more particularly set forth in the Lease between the Landlord and
Tenant.
16. Landlord shall have no obligation with respect to Tenant's
Contractor.
17. Landlord and Landlord's contractor shall have the right, from
time to time as may be required, to inspect or perform work within the Premises.
Such inspections or work shall not conflict with Tenant's Contractor's work in
the Premises unless it is necessary in an emergency situation. Further, Landlord
shall have the right to suspend Tenant's Contractor's work in the Premises if
such work, in the reasonable opinion of Landlord or of Landlord's contractor, is
presenting or may present a danger to life, safety, or property, or in an
emergency situation.
18. Tenant shall give Landlord reasonable prior notice to all
inspections, punchouts and other reviews during the course of construction so
that Landlord may observe such events. Further, Landlord shall be likewise
informed of all Building Department inspections and requirements for issuance of
the Certificate of Occupancy for the Premises. Landlord's observation of any
such events shall, in no event be construed or interpreted as a review or
approval by Landlord of any such work nor shall it prevent Landlord, if it
thereafter discovers any deficiency in such Work, from requiring correction
thereof as otherwise provided herein. Tenant's Contractor shall be solely
responsible for obtaining such Certificate of Occupancy and shall submit to
Landlord the original thereof prior to Tenant's occupancy of the Premises for
the purpose of conducting business.
19. Provided the same is performed in a reasonable manner,
Landlord's architect or other agent shall have the option of reviewing all
equipment and materials to be used in the construction of the Tenant's Work and
all such work prior to Tenant move-in. Such review shall in no event constitute
approval by Landlord and shall not unreasonably delay Tenant's Contractor's
progress.
20. Tenant's Contractor will not store materials or supplies in,
about, or outside the Building Complex (other than within the Premises) without
the prior approval of the Landlord and Landlord's contractor.
21. Tenant's Contractor will provide, at all times, direct
supervision of any and all work being performed for the Tenant including the
delivery and hoisting of materials, if necessary.
22. Tenant's Contractor will cooperate with Landlord to dispose of
refuse resulting from Tenant's Work. This may include the use of Landlord's
dumpster and a proration of charges associated with such use or at Landlord's
option and Tenant's sole cost and expense the placement of Tenant Contractor's
dumpster at a location specified by Landlord.
23. If any legal action or arbitration proceeding is commenced in
order to enforce the provisions of Tenant's contract or to recover damages as a
result of the alleged breach of the provisions thereof, the prevailing party in
any such action or proceeding shall be entitled to recover all reasonable costs
incurred in connection therewith, including reasonable attorneys' fees.
EXHIBIT D
SIGN CRITERIA
These criteria have been established for the purpose of assuring a
quality business park and for the mutual benefit of all Tenants. Conformance
will be strictly enforced, and any installed nonconforming or unapproved signs
must be brought in conformance at the expense of the Tenant. After written
notice to Tenant of a violation and * days to cure such violation, ANY SIGN THAT
DOES NOT CONFORM TO THESE REGULATIONS WILL BE REMOVED AND REPLACED WITH A
CONFORMING SIGN AT TENANT'S EXPENSE.
It will be the sole responsibility of the Tenant to conform to the
terms of this Sign Criteria as follows:
1. No later than * days prior to the Delivery Date, Tenant will
provide, at its sole cost and expense, the Tenant's portion of the
sign in conformance with the criteria below.
2. The sign base complete with the unit number has been provided on
the Building. The sign base is the property of the Landlord.
3. Tenant identification shall be restricted to the Tenant portion of
the sign.
4. The lettering/logo and installation of the Tenant portion of the
sign on the sign base shall be paid for by Tenant and remain the
property of Landlord. All letters and other scripting shall be
consistent in color and style with the lettering on the base and
in good taste, in the opinion of Landlord.
5. Tenant shall submit to Landlord for its approval all copy and/or
logo prior to installation of the Tenant portion of the sign.
6. Upon Lease termination, Tenant shall remove its sign and return
the Premises to their original condition.
7. No audible signs will be allowed; provided, however, the parties
acknowledge that the permitted signs may emit an audible
mechanical hum during operation. Landlord will allow internally
illuminated lighting with no moving fixtures.
8. Except as provided herein, no banners, pennants, placards,
freestanding signs, or signs affixed to automobiles or trailers
are allowed on the Building, in the landscaped areas, or on
streets or parking area. The restriction pertaining to automobiles
or trailers does not apply to magnetic or painted identification
signs placed on company or private vehicles for use in the normal
course of business.
9. All signs will be reviewed for conformance with this criteria and
overall aesthetics and design quality. Approval or disapproval of
sign submittals based on aesthetics shall remain the sole right of
the Landlord.
10. Each Tenant shall submit or cause to be submitted to Landlord for
approval before fabrication at least * copies of detailed drawings
indicating location, size, layout, design and color of the
proposed signs, including all lettering and/or graphics.
11. All permits for signs and their installation shall be obtained by
the Tenant or their representative at Tenant's cost and expense
and will comply with all appropriate government requirements.
Nothing in this criteria shall imply a waiver of requirements by
the local authorities.
12. Tenant shall be responsible for the fulfillment of all
requirements and specifications.
13. All signs shall be constructed and installed at Tenant's expense.
EXHIBIT E
Commencement Date Certificate
COMMENCEMENT DATE CERTIFICATE ("Certificate") is executed this ___ day
of __________________, 2000, by Frontier Center One, LLC, a Colorado limited
liability company, ("Landlord") and Frontier Airlines, Inc., a Colorado
corporation, ("Tenant") with respect to and forming a part of that certain
Office Suite lease ("Lease") dated __________________, 20__, for the premises
commonly known as Suite _________________________________ ("Premises").
WITNESSETH:
WHEREAS, the parties desire to reaffirm and/or amend and certify to
certain provisions of the Lease; and
WHEREAS, the parties desire that the matters set forth herein be
conclusive and binding on the parties.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Lease Commencement Date is deemed and agreed to be
_____________________, 20___, and the Lease termination date is
_____________________, 20___, unless sooner terminated or extended, as
provided therein.
2.
3. Base Rent as set forth in Section 1.7 of the Lease is hereby confirmed
to be as follows:
4.
5. Period Monthly Rent
------ ------------
6. $
------------------
7. $
------------------
8. $
------------------
9. $
------------------
10. $
------------------
11.
12. Tenant's first installment of Base Rent in the amount of ______________
Dollars ($__________) for the period of ___________________ (is due on)
(was paid on) _______________, 20__.
13.
14. Tenant's Share of Operating Expenses as set forth in Section 1.9 of the
Lease is hereby confirmed to be _________%. Tenant's first installment
of Tenant's Share of Operating Expenses in an amount to be determined
is due on _________________, 20____.
15.
16. The Rentable Area of the Building (as defined in Section 1.8 of the
Lease) is agreed to be _________ rentable square feet.
17.
18. The Rentable Area of the Premises (as defined in Section 1.8 of the
Lease) is agreed to be __________ rentable square feet.
19.
20. By execution hereof, Tenant acknowledges and agrees that all
improvements or other work required of Landlord has been satisfactorily
performed except for latent defects, and Tenant hereby accepts the
Premises in full compliance with the terms and conditions of the Lease.
21.
22. Except as may be amended herein, all terms and conditions of the Lease
shall continue in full force and effect and are hereby republished and
reaffirmed in their entirety.
23.
24. This Certificate shall be binding upon and may be relied upon by the
parties hereto and their respective legal representatives, successors
and assigns.
25.
IN WITNESS WHEREOF, the parties have executed this Certificate as of
the day and year first above written.
FRONTIER CENTER ONE LLC,
a Colorado limited liability company
By: SHEA FRONTIER CENTER, LLC,
a California limited liability company,
its Manager
By: J.F. Shea Co., Inc., a Nevada
corporation, its Manager
By: ___________________________________
Assistant Secretary
By: ___________________________________
Assistant Secretary
"Landlord"
FRONTIER AIRLINES, INC.,
a Colorado corporation
By:
Title:
ATTEST:
By:
Title:
"Tenant"
EXHIBIT F
RULES AND REGULATIONS
The Rules and Regulations in this Exhibit F have been adopted by
Landlord for the safety, benefit and convenience of all tenants and other
persons in the Building Complex. Landlord may, from time to time in its sole
discretion, amend, delete from, or add to the Rules and Regulations and any such
modification shall be effective upon delivery of a copy thereof to Tenant at the
Premises. Landlord shall use reasonable efforts to secure compliance by all
tenants with the Rules and Regulations then in effect, but shall not be
responsible to Tenant for the failure of any person to comply with such Rules
and Regulations nor shall any such failure relieve Tenant of its obligation to
comply with the Rules and Regulations. In these Rules and Regulations, the Term
"Tenant" includes the employees, agents, invitees and licensees of Tenant and
others permitted by Tenant to use or occupy the Premises.
1. Tenant shall not do or permit anything to be done on the Premises, or bring
or keep anything therein which shall in any way obstruct or interfere with
the rights of other tenants, or in any way injure or annoy them, or with
any insurance policy covering the Building and/or Common Areas thereof. Any
picketing of the Premises shall take place only on publicly dedicated
sidewalks and not on the Common Area or in the Premises. 2.
2.
3. Tenant shall not sweep or throw, or permit to be swept or thrown from the
Premises, any dirt or other substance into any of the Common Areas of the
Building Complex. Tenant shall not use, keep or permit to be used any foul
or noxious gas or substance in the Premises, or permit or suffer the
Premises to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the property by reason of noise, odors
and/or vibrations. Tenant shall place all refuse in proper receptacles
provided by Landlord (and charged as a Common Area Operating Expense), in
the locations designated by Landlord for the Building, and shall keep the
loading dock area outside the Premises free of all refuse. Tenant shall not
loiter on the Common Areas to smoke except in the Building designated
smoking area. Tenant shall, at its sole cost and expense, comply with
recycling programs for the Building Complex established by Landlord.
4.
5. Tenant shall not store, nor cause to be stored, any material, substance,
equipment, supplies or vehicles outside or adjacent to the Premises
described in this Lease.
6.
7. Tenant and its employees or vendors shall not go upon the roof of the
Building without prior written consent of Landlord.
8.
9. No animals, birds, reptiles or other pets may be brought in or kept in or
about the Premises without Landlord's written consent except for animals
assisting persons with disabilities.
10.
11. Unless escorted by an adult, children are not allowed on the Premises or in
the Building Complex.
12.
13. Canvassing, soliciting and peddling in the Building Complex or on the
Premises are prohibited, and Tenant shall cooperate to prevent the same.
Only persons approved in writing, from time to time by Landlord, may
solicit orders for, sell, serve or distribute foods or beverages in the
Building or Common Areas. Except with Landlord's prior written consent and
in accordance with arrangements approved by Landlord. Tenant shall not
permit cooking within the Premises, except for microwave ovens, coffee
makers, etc., for the use of their employees, agents or invitees. Tenant
shall be entitled to install vending machines operated by third party
licensees and contract with a caterer who may serve breakfast and/or lunch
to Tenant, its employees, agents or invitees; provided such caterer does
not have its personal property or fixtures on the Premises for more than
the period reasonably necessary to serve such meal(s) and such catering is
operated in compliance with the requirements of this Lease including,
without limitation, approval of Final Working Drawings showing the location
of the eating area in which the caterer will serve meals and Paragraph 18
below. If such caterer will occupy a portion of the Premises as evidenced
by its personal property or fixtures remaining in the Premises beyond the
meal it is serving, then Tenant must comply with the requirements of
Section 13 of the Lease for subletting a portion of the Premises.
14. Tenant shall not use or keep on the Premises, any kerosene, gasoline or any
inflammable, combustible or explosive fluid, chemical or substance, or use
any method of heating or air conditioning other than that authorized in
writing by Landlord; provided, however, Tenant can store small quantities
of paint thinner and other similar cleaning products in compliance with the
requirements of all governmental and quasi-governmental rules, regulations
and laws applicable thereto and with the provisions of Section 7.
15.
16. Tenant shall give prompt notice to Landlord of any accidents to or defects
in plumbing, electrical fixtures, heating or cooling apparatus or other
utilities.
17.
18. The toilet rooms, toilets, urinals, wash bowls and other apparatus serving
the Premises shall not be used for any purpose other than that for which
they were constructed, and no foreign substance of any kind whatsoever
shall be thrown therein. All damage and expense resulting from any misuse
of the fixtures shall be borne by Tenant to the extent its servants,
employees, agents, visitors and licensees shall have caused it.
19.
20. Tenant shall give Landlord reasonable advance notice of and refer all
contractors, contractors' representatives and installation technicians
rendering any service to the Premises for Tenant to Landlord for Landlord's
approval and supervision before performance of any contractual service
relating to the Premises itself. This provision shall apply to all work
performed which may effect the Building or in the Building Complex,
including installation of telephones, telegraph equipment, electrical
devices and attachments and installations of any nature. Excluded from the
requirement of advance notice to Landlord shall be repairs and maintenance
of any of Tenant's own equipment or Tenant's Trade Fixtures to include, but
not be limited to phone equipment, security system, copiers and computers.
Tenant shall carry out those activities which are restricted herein in
connection with Tenant's repair, maintenance, approved alterations and
improvements in the Premises only during the times agreed to in advance by
Landlord and in a manner which will not interfere with the rights of other
tenants in the Building Complex.
21.
22. The sidewalks, exits, entrances, driveways and Common Areas in and around
the Premises shall not be obstructed by Tenant or used by Tenant for any
purpose other than for ingress to and egress from the Premises. The exits,
entrances, driveways, Common Areas, and roof are not for the use of the
general public, and Landlord shall, in all cases, retain the right to
control and prevent access thereto by all persons whose presence, in the
judgment of Landlord, shall adversely affect the safety, character,
reputation and interest of the Building and its tenants, provided, that
nothing herein contained shall be construed to prevent such access to
persons with whom Tenant normally deals in the ordinary course of its
business unless such persons are engaged in illegal activities. Landlord
may remove, at Tenant's expense, any such obstruction or thing
(unauthorized by Landlord) without notice or obligation to Tenant. 23.
24. Landlord agrees to furnish Tenant fifteen (15) keys without charge for each
of the keyed exterior entry doors. Additional keys will be furnished at a
nominal charge. Tenant shall not alter any lock, nor install any new or
additional locks or any bolts on any door of the Premises without written
consent of the Landlord. If Landlord shall give its consent, Tenant shall
in each case, furnish the Landlord with a key for any such lock. Tenant
acknowledges that Landlord retains a master key to all entry doors in the
Building Complex.
25.
26. Tenant must, upon the termination of this Lease, return to Landlord all
keys either furnished to, or otherwise procured by Tenant; and in the event
of the loss of any keys so furnished, Tenant shall pay to Landlord the cost
of replacing the same or of changing the lock or locks opened by such lost
key if Landlord shall deem it necessary to make such change. Landlord will
not permit entrance to the Premises by use of pass key controlled by
Landlord, to any person at any time without the permission of Tenant,
except employees, contractors, or service personnel authorized by Landlord
in accordance with the provisions of Section 33 herein.
27.
28. Tenant shall ensure that the windows and doors of the Premises are closed
and securely locked before leaving the Premises. Tenant must observe strict
care and caution that all water faucets or other apparatus are entirely
shut off before Tenant or Tenant's employees leave the Premises so as to
prevent damage, and Tenant shall be responsible for the costs for all
injuries or damages sustained by other tenants or by Landlord as a result
thereof.
29.
30. Special requests by Tenant shall be attended to only upon written approval
by Landlord or its agent. Employees or agents of Landlord shall not perform
any work for or do anything outside of their regular duties for Tenant
unless under written approval from the Landlord.
31.
32. Landlord will not be responsible for damaged, lost or stolen personal
property, equipment, money or jewelry from Tenant's Premises or the Common
Areas regardless of whether such loss occurs when area is locked against
entry or not.
33.
34. Tenant, its employees, agents or invitees shall comply with all directions
of Landlord as posted in and for the use of the Building Complex parking
areas.
35.
36. With regard to the employee cafeteria or food service preparation area,
Tenant shall be obligated to comply with, at its sole cost and expense, any
code, ordinance, statute, law, rule, regulation, or requirement of any
governmental agency having jurisdiction over the Premises or declaration of
covenants affecting the Real Property related to Tenant's preparation and
service of food from a portion of the Premises and Tenant shall obtain all
licenses related to such operation. Tenant shall maintain any required
grease traps and all plumbing and electrical facilities related to the
operation of the Cafeteria in good order, condition and repair. Tenant will
at all times maintain and conduct its business so that no odors, fumes,
vapors, steam, moisture or condensation shall affect any walls, floors, or
ceilings in the Building or emanate from the Premises. All refuse cans must
be kept inside the Premises and shall be kept as required by the health
codes. Tenant shall at all times transport the refuse and garbage from the
Premises to the refuse area in such manner as may be designated by Landlord
from time to time. Tenant shall enter into and keep in full force and
effect throughout the term of this Lease a full service preventative
extermination contract with a licensed pest control operator approved in
advance by Landlord. Further, Tenant agrees to keep the premises at all
time free from pests attracted by the cafeteria and shall cause the same to
be exterminated from time to time to the satisfaction of the Landlord.
Tenant shall have no right to apply for and obtain a license to serve
liquor or wine from the Premises.
37.
38. The Premises shall not be used or permitted to be used for residential,
lodging or sleeping purposes, or for the storage of personal effects or
property not required for business purposes.
39.
40. No blinds, drapes or other window coverings shall be detached from or
installed in the Premises without the express prior written consent of
Landlord. In the event of violation of any of the foregoing by Tenant,
Landlord may remove the articles constituting the violation without any
liability and Tenant shall reimburse Landlord for the expense incurred in
such removal and replacement upon demand as additional Rent under the
Lease.
41.
42. Tenant, its employees, agents and invitees shall not bring any weapons
and/or explosives into the Premises, Building or Common Areas for any
reason; provided, however, if Tenant provides a security guard for the
Premises, such guard may carry a firearm so long as such guard has a valid
license therefor.
43.
44. No person shall enter or remain within the Building Complex while
intoxicated or under the influence of liquor or drugs. Landlord shall have
the right to exclude or expel from the Building Complex any person who, in
the sole discretion of Landlord, is under the influence of liquor or drugs.
45.
46. Tenant shall maintain the air temperature in its Premises warm enough to
prevent the freezing of the plumbing and sprinkler system.
47.
48. The failure of the Landlord to seek redress for violation of, or insist
upon the strict performance of any covenants or conditions of this Lease or
any of the Rules and Regulations set forth above or hereafter adopted by
Landlord, shall not prevent a subsequent act, which would have originally
constituted a violation from having all the force and effect of any
original violation. The receipt of Landlord of any rental payment with
knowledge of the breach of any covenant of this Lease or breach of these
Rules and Regulations shall not be deemed a waiver of such breach.
49.
50. No act or thing done or omitted to be done by Landlord or Landlord's agent
during the term of the Lease which is necessary to enforce these Rules and
Regulations shall constitute an eviction by Landlord nor shall it be deemed
a surrender or acceptance of said Premises, and no agreement to accept such
surrender shall be valid unless in writing signed by Landlord. No employee
of Landlord or Landlord's agent shall have any power to accept the keys of
said Premises prior to the termination of the Lease. The delivery of keys
to any employee of Landlord or Landlord's agent shall not be construed as a
termination of the Lease or a surrender of the Premises.
PARKING LICENSE
Landlord hereby grants a license to Tenant for the use by Tenant at the
option of Tenant on an unreserved, unassigned basis of * standard size passenger
vehicle parking stalls (the "Spaces") on the surface lot adjacent to the
Building upon terms of the Lease and this License. Tenant's Spaces shall be
located in the area of the surface lot marked on the diagram attached hereto as
Exhibit G-1. Tenant shall have the right to designate visitor parking near its
entrances at its discretion. The right to use such spaces is non-exclusive and
is in common with others on a first-come, first-served basis (the "Parking
Privileges"). In the event Tenant elects to construct a day care center in the
Premises and in the event an outdoor play area may be required or desired in
connection with the operation of such day care center, Tenant's Spaces will be
reduced to provide such DC Play Area on the surface parking lot. Tenant shall be
required to obtain Landlord's prior written consent to the location of such DC
Play Area.
1. Tenant's right to the Parking Privileges shall commence on the date of
execution of the Lease and shall continue for the Term of the Lease unless
sooner terminated or extended, or unless Tenant is in default not cured within
an applicable cure period under the Lease. The Parking Privileges shall
automatically terminate upon the expiration or earlier termination of the Lease,
the Primary Lease Term and any extensions thereof.
2.
3. Landlord shall have the right at any time to change the arrangement or
location of or to regulate the use of Spaces without incurring any liability to
Tenant or its Designated Users as long as the number of Spaces referenced above
area are available. Landlord will not require parking off the Building Complex
except for reasons beyond Landlord's control. Among other things, Landlord shall
be entitled to assign designated areas of the surface lot for use by particular
persons or groups of persons and Tenant shall refrain from parking in such
Spaces as long as the number of Spaces referenced above are available. Tenant
acknowledges that the Spaces will not be individually designated or reserved for
use by Tenant and that Tenant will use the Spaces in the surface lot in common
with all persons to whom or which Landlord grants the right to use the surface
lot except as expressly set forth herein as long as the number of Spaces
referenced above are available.
4.
5. In addition to the Rules and Regulations set forth in the Lease, the use of
the Spaces is subject to the following rules related to Landlord's measures to
restrict use of the Building parking facilities by unauthorized persons:
6.
7. a. Landlord will provide Tenant with written notice that Landlord intends to
establish a system of restricted parking and will consult with Tenant prior to
finalizing any such system.
8.
9. b. At Landlord's written request, Landlord may provide Tenant with tags or
stickers for Tenant to distribute to specific individual employees of Tenant
(the "Designated Users"). Alternatively, Landlord may designate use of specific
spaces to Designated Users; but Tenant shall remain responsible for all
obligations hereunder. Within * business days after Landlord's written request,
Tenant agrees to provide Landlord with a listing of all vehicles or Designated
Users, including names of vehicle owners, vehicle models, colors, license plate
numbers, and Tenant shall provide Landlord with a revised listing promptly after
any change to the listing. Tenant shall deliver to Tenant's Designated Users
parking decals or other identification provided by Landlord which shall be at
all times displayed prominently on the vehicles of Designated Users. Landlord
shall have the right to directly ban any Designated User from further use of any
of the Spaces for violation of the rules for the use of the Spaces. Anyone
parked in the Spaces without a parking decal may be towed by Landlord without
notice and at the vehicle owner's expense.
10.
11. c. Tenant and Designated Users shall park only in parking spaces and not on
ramps, corridors, approaches, or other areas designated as "no parking" areas.
12.
13. d. Tenant and Designated Users shall observe the special hours of opening,
closing and non-use of the surface lot when closings are necessary for repairs,
cleaning and rehabilitation.
14. e. Tenant and Designated Users shall use the Spaces only for automobile
parking to include Permitted Size Vehicles as defined in the Lease.
15.
16. f. Tenant and Designated Users shall observe all posted vehicle height
limitations.
17.
18. g. Tenant and Designated Users shall not allow unauthorized vehicles to use
the Spaces and, except for emergencies, shall not repair nor authorize service
to vehicles parked in the parking structure or in surface parking area.
19.
20. If any portion of the surface lot shall be damaged by fire or other casualty
or shall be taken by right of eminent domain or by condemnation or shall be
conveyed in lieu of any such taking, the Parking Privileges shall automatically
cease and terminate, Tenant thereupon shall surrender to Landlord the Spaces and
all interest therein, and Landlord may re-enter and take possession of the
Spaces. 21.
22. Tenant shall not be permitted to assign the Spaces or any interest herein or
permit the Space or any part thereof to be used by other than Designated Users
without the prior written consent of Landlord, which consent may be granted or
withheld in Landlord's sole discretion, except as to Landlord's approved
subleases in which event consent shall be granted. Tenant shall remain primarily
liable for the performance of the obligations of the Tenant hereunder
notwithstanding any assignment or occupancy arrangement permitted or consented
to by Landlord.
23.
24. Neither Landlord or its agents shall be liable for any damage, fire, theft
or loss to vehicles or other properties or persons while in the parking
facilities of the Building, whether caused by theft, collision, moving vehicles,
explosion, fire, or any other activity or occurrence in such Building. Tenant
and/or its Designated Users assume the risk of such loss or damage and shall
indemnify, defend and hold Landlord and its agents harmless from any and all
claims against and damages incurred by Landlord arising from Tenant's or the
Designated Users' use of the parking facilities, including all costs, attorneys'
fees, expenses and liabilities incurred on or about any such claim or action.
25.
26.
EXHIBIT G-1
PARKING MAP
EXHIBIT H
[INTENTIONALLY DELETED]
EXHIBIT I
JANITORIAL REQUIREMENTS
I. GENERAL SERVICES
A. DAILY SERVICES
1. Clean entry door glass.
2. Sweep with chemically treated dust mop or vacuum all
floors.
3. Spot clean composition floors and carpets.
4. Dust desk, chairs and all other office furniture.
5. Clean all ash trays and sand urns.
6. Properly position furniture in offices.
7. Empty all waste baskets and carry trash to pick up area.
8. Spot clean door, door frames and counters.
9. Spot clean partition and door glass.
10. Spot clean around wall switches.
11. Clean and polish drinking fountains.
12. Clean elevator and elevator tracks.
13. Leave on designated lights.
14. Police stairway entries.
II. OTHER REQUIREMENTS
A. WEEKLY SERVICES
1. Dust ledges and window sills.
2. Perform low dusting.
3. Dust the baseboards.
4. Sweep/Vacuum stairways and dust the rails.
5. Remove fingerprints from woodwork, walls and partitions.
B. MONTHLY SERVICES
1. Perform high dusting (i.e., Door sashes and tops of
partitions).
2. Dust picture frames.
C. FLOOR FINISHING SERVICES
1. Clean and refinish all composition floors - Monthly.
III. RESTROOM SERVICES
A. DAILY SERVICES
1. Empty and wipe out all waste paper receptacles.
2. Empty sanitary napkin containers and replace insert.
3. Polish all metal and mirrors.
4. Clean and polish all dispensers.
5. Clean and disinfect wash basins, toilet bowls and urinals.
6. Disinfect underside and tops of toilet seats.
7. Spot clean tile walls and toilet partitions.
8. Spot clean walls around wash basins.
9. Clean floors with a germicidal solutions.
10. Refill soap, towel, tissue and seat cover dispensers.
B. SEMI-WEEKLY SERVICES
1. Pour clean water down floor drains to prevent sewer gases
from escaping.
C. WEEKLY SERVICES
1. Wash down ceramic tile walls and toilet compartment
partitions.
2. Perform high dusting.
D. MONTHLY SERVICES
1. Brush down vents.
2. Machine scrub floors.
TABLE OF CONTENTS
1. Basic Provisions 1
2. Premises, Parking and Common Areas 3
3. Term 5
4. Rent 6
5. Security Deposit 9
6. Use 11
7. Hazardous Substances 11
8. Maintenance, Repairs, Utility Installations,
Trade Fixtures and Alterations 12
9. Insurance; Indemnity 15
10. Casualty and Restoration of Premises 17
11. Real Property Taxes 18
12. Utilities 19
13. Assignment and Subletting 19
14. Default; Remedies 22
15. Condemnation 26
16. Brokers 26
17. Statements 26
18. Landlord's Liability 27
19. Severability 27
20. Interest on Past-Due Obligations 27
21. Time of Essence 27
22. Rent 27
23. No Prior or Other Agreements 28
24. Notices 28
25. Waivers 29
26. Recording 29
27. Holdover 29
28. Cumulative Remedies 29
29. Covenants and Conditions 29
30. Binding Effect: Choice of Law 29
31. Subordination; Attornment; Non-Disturbance 29
32. Attorneys' Fees 30
33. Right of Entry 30
34. Auctions 30
35. Signage 30
36. Termination; Merger 31
37. Guarantor 31
38. Quiet Possession 31
39. Rules and Regulations 31
40. Security 31
41. Reservations 32
42. Authority 32
43. Conflict 32
44. Offer 32
45. Amendments 32
46. Multiple Parties 32
47. Building Name 32
48. Confidentiality 32
49. Satellite 32
50. Option to Extend 34