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EXHIBIT 10.8
LEASE
THIS LEASE AGREEMENT (this "Lease") is entered into as of March 29,
1999, among LAKESIDE HOLDINGS, L.L.C., a Delaware limited liability company
("Landlord") and MULTI-LINK TELECOMMUNICATIONS, INC., a Colorado corporation
("Tenant"), and MULTI-LINK COMMUNICATIONS, INC., a Colorado corporation
("Guarantor").
1. LEASE GRANT. Subject to the provisions of Section 30 and Section 31
of the Addendum to this Lease and the remaining terms hereof, Landlord leases to
Tenant, and Tenant leases from Landlord, approximately 3,067 rentable square
feet on the fourth floor, identified as Suite 420 (the "Premises"), and as
depicted in the plan attached as Exhibit A-1 in the office building (the
"Building") located at Lakeside Office Park, 4704 Harlan Street, Lakeside,
Colorado, which Building is depicted on Exhibit B attached hereto, and which
Building is part of the Complex (hereinafter defined) known as Lakeside Plaza
and located on the Real Property more particularly described on Exhibit C
attached hereto and made a part hereof. The term "Complex" includes the Building
and all other buildings located at 4690 and 4704 Harlan Street and 12, 14, and
16 Lakeside Lane, the related land (including the Real Property), driveways,
parking facilities, and similar improvements.
2. TERM. The term of this Lease shall be thirty-six (36) months,
commencing May 1, 1999 (the "Commencement Date"), and expiring at 5:00 p.m.,
thirty-six months thereafter (the "Term", which definition shall include all
renewals of the initial Term). If the Commencement Date is not the first day of
a calendar month, then the Term shall be extended by the number of days between
the Commencement Date and the first day of the next month. If the Premises are
not ready for occupancy by Tenant on the Commencement Date, then (a) Tenant's
obligation to pay Basic Rent and Additional Rent (as defined in Section 3) shall
be waived until Landlord tenders possession of the Premises to Tenant, (b) the
Term shall be extended by the time between the scheduled Commencement Date and
the date on which Landlord tenders possession of the Premises to Tenant, and (c)
Landlord shall not be in default hereunder or be liable for damages therefor.
However, if the Premises are not ready for occupancy by Tenant within 60 days
after the scheduled Commencement Date, Tenant may, in its sole discretion,
terminate this Lease, in which event all sums previously paid by Tenant shall be
returned to Tenant and neither party shall thereafter have any liability
hereunder. Tenant agrees to execute and deliver to Landlord an Estoppel and
Commencement Date Certificate, within ten (10) days of the date the term
commences, certifying as to the actual commencement and termination dates of the
Term and such other matters as may be required by Landlord. Prior to the
Commencement Date and after Landlord has completed certain improvements on the
Premises, specifically the construction of a wall and the installation of
carpet, Tenant shall have access to the Premises, without charge, for the sole
purpose of installing network wiring and telephone wires.
3. RENT.
(a) Basic Rent. "Basic Rent" (herein so called) shall be the
following amounts for the following periods of time:
Time Period Annual Basic Rent Monthly Basic Rent
----------- ----------------- -------------------
Months 1 - 36: $ 52,139.04 $ 4,344.92
(b) Payment. Tenant shall timely pay to Landlord Basic Rent
and all additional sums to be paid by Tenant to Landlord under this
Lease (collectively, the "Rent"), without deduction or set off, but
subject to abatement pursuant to the provisions of Section 6(c) of this
Lease, at Landlord's address provided for in this Lease or as otherwise
specified by Landlord. Basic Rent, adjusted as herein provided, shall
be payable monthly in advance, and shall be accompanied by all
applicable state and local sales or use taxes. The first monthly
installment of Basic Rent shall be payable contemporaneously with the
execution of this Lease; thereafter, Basic Rent shall be payable on the
first day of each month beginning on the first day of the second full
calendar month of the Term. The monthly Basic Rent for any partial
month at the beginning of the Term shall equal the product of 1/365 of
the annual Basic Rent in effect during the partial month and the number
of days in the partial month from and after the Commencement Date and
shall be due on the Commencement Date.
(c) Operating Costs.
(1) Tenant shall pay an amount (per each rentable
square foot in the Premises) ("Additional Rent") which is
Tenant's Proportionate Share (defined below) of the amount by
which the Operating Costs incurred with respect to any
calendar year (or partial calendar year) exceed the Operating
Expense Base Amount (defined below). For purposes of this
Lease, "Operating Expense Base Amount" shall mean $4.83 per
rentable square foot per annum. Landlord may collect such
amount in a lump sum, which shall be due within 30 days after
Landlord furnishes to Tenant the Operating Costs and Tax
Statement (defined below). Alternatively, Landlord may make a
good faith estimate of the Additional Rent to be due by Tenant
for any calendar year or part thereof during the Term, and
Tenant shall pay to Landlord, on the Commencement Date and on
the first day of each calendar month thereafter, an amount
equal to the estimated Additional Rent for such calendar year
or part thereof divided by the number of months therein. From
time to time, Landlord may estimate and re-estimate the
Additional Rent to be due by Tenant and deliver a copy of the
estimate or re-estimate to Tenant. Thereafter, the monthly
installments of Additional Rent payable by Tenant shall be
appropriately adjusted in accordance with the estimations so
that, by the end of the calendar year in question, Tenant
shall have paid all of the
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Additional Rent as estimated by Landlord. Any amounts paid
based on such an estimate shall be subject to adjustment as
herein provided when actual Operating Costs are available for
each calendar year.
(2) The term "Operating Costs" shall mean all
expenses and disbursements (subject to the limitations set
forth below) that Landlord incurs in connection with the
ownership, operation, and maintenance of the Complex,
determined in accordance with sound accounting principles
consistently applied, including, but not limited to, the
following costs: (A) reasonable wages and salaries of all
employees engaged in the operation, maintenance, and security
of the Complex, (including but not limited to accounting
staff, property management staff, asset management staff,
consulting engineers, secretarial support staff, and parking
lot consultants), including taxes, insurance and benefits
relating thereto; (B) all supplies and materials used in the
operation, maintenance, repair, replacement, and security of
the Complex; (C) costs for improvements made to the Complex
which, although capital in nature, are expected to reduce the
normal operating costs of the Complex, as well as capital
improvements made in order to comply with any law or
regulation hereafter promulgated by any governmental authority
or any new interpretation of any law or regulation hereafter
rendered, as amortized over the useful economic life of such
improvements as determined by Landlord in its reasonable
discretion; (D) cost of all utilities, except the cost of
utilities reimbursable to Landlord by the Complex's tenants
other than pursuant to a provision similar to this Section
3(c); (E) insurance expenses; (F) repairs, replacements, and
general maintenance of the Complex; (G) service or maintenance
contracts with independent contractors for the operation,
maintenance, repair, replacement, or security of the Complex
(including, without limitation, alarm service, window
cleaning, and elevator maintenance); and (H) a five percent
(5%) Management Fee computed on the basis of all Operating
Costs, as otherwise set forth in this Lease.
Operating Costs shall not include costs for (i)
capital improvements made to the Complex, other than capital
improvements described in Section 3(c)(2)(C) and except for
items which are generally considered maintenance and repair
items, such as painting of common areas, replacement of carpet
in elevator lobbies, governmentally required improvements, and
the like; (ii) repair, replacements and general maintenance
paid by proceeds of insurance or by Tenant or other third
parties; (iii) interest, amortization or other payments on
loans to Landlord; (iv) depreciation; (v) leasing commissions;
(vi) legal expenses for services, other than those that
benefit the Complex tenants generally (e.g., tax disputes);
(vii) renovating or otherwise improving space for occupants of
the Complex or vacant space in the Complex; (viii) Taxes
(defined below); (ix) federal income taxes imposed on or
measured by the income of Landlord from the operation of the
Complex; (x) advertising and promotional expenses (except for
two (2) tenant events per year); (xi) costs incurred due to
any fines and/or penalties due to Landlord's violation of any
applicable law, rule, regulation or code; (xii) expenses
incurred in connection with the enforcement of the terms of
any other tenant leases; and (xiii) inheritance, estate, gift,
transfer, succession, franchise and profit taxes, subject to
the provisions of Section 3(c)(3) below.
(3) Tenant shall pay as additional rent for each
calendar year that amount which is Tenant's Proportionate
Share of the amount by which the Taxes incurred with respect
to such calendar year (or partial calendar year) exceed the
Tax Base Amount (defined below). For purposes of this Lease,
"Tax Base Amount" shall mean $1.17 per rentable square foot
per annum. Tenant shall pay its Proportionate Share of Taxes
in the same manner as provided above for Additional Rent with
regard to Operating Costs. "Taxes" shall mean taxes,
assessments, and governmental charges whether federal, state,
county or municipal, and whether they be by taxing districts
or authorities presently taxing or by others, subsequently
created or otherwise, and any other taxes and assessments
attributable to the Complex (or its operation), excluding,
however, penalties and interest thereon and federal and state
taxes on income (if the present method of taxation changes so
that in lieu of the whole or any part of any Taxes, there is
levied on Landlord a capital tax directly on the rents
received therefrom or a franchise tax, assessment, or charge
based, in whole or in part, upon such rents for the Complex,
then all such taxes, assessments, or charges, or the part
thereof so based, shall be deemed to be included within the
term "Taxes" for purposes hereof). Taxes shall include the
costs of consultants retained in an effort to lower taxes and
all costs incurred in disputing any taxes or in seeking to
lower the tax valuation of the Complex.
(4) By August 1 of each calendar year, or as soon
thereafter as practicable, Landlord shall furnish to Tenant a
statement of Operating Costs for the previous year, adjusted
as provided in Section 3(d)(6), and of the Taxes for the
previous year (the "Operating Costs and Tax Statement"). If
the Operating Costs and Tax Statement reveals that Tenant paid
more for Operating Costs than the actual amount for the year
for which such statement was prepared, or more than its actual
share of Taxes for such year, then Landlord shall promptly
credit or reimburse Tenant for such excess; likewise, if
Tenant paid less than Tenant's actual Proportionate Share of
Additional Rent or share of Taxes due, then Tenant shall
promptly pay Landlord such deficiency.
(5) As used herein, Tenant's "Proportionate Share"
shall be 2.356% which is the percentage obtained by dividing
the rentable square feet of area in the Premises, which is
stipulated to be 3,067 rentable square feet by the total
number of square feet of area in the Complex, which is
stipulated to be 130,150 rentable square feet (being 95% of
the rentable area of the office space in the Complex).
With respect to any calendar year or partial
calendar year in which the Complex is not occupied to the
extent of 95% of the rentable area thereof, the Operating
Costs for such period shall, for the purposes hereof, be
increased to the amount which would have been incurred had the
Complex been occupied to the extent of 95% of the rentable
area thereof.
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(6) Tenant will be entitled from time to time to
audit and verify the Operating Costs and the related books and
records of Landlord to assure that the Operating Costs from
time to time reported by Landlord are in keeping with the
provisions of this Section 3(c). In the event of any errors,
the appropriate party will make a correcting payment in full
to the other party within 30 days after the determination and
communication to all parties of the amount of such error. In
the event of any errors on the part of Landlord in excess of
3% of Tenant's actual Operating Costs liability for that
calendar year, Landlord will also reimburse Tenant for all
reasonable costs of the audit and verification reasonably
incurred by Tenant within the 30-day period.
4. DELINQUENT PAYMENT; HANDLING CHARGES. All past due payments (those
outstanding more than ten (10) days) required of Tenant hereunder shall bear
interest from the date due until paid at the rate of eighteen percent (18%) per
annum (the "Interest Rate"); additionally, Landlord may charge Tenant a fee
equal to five percent (5%) of the delinquent payment to reimburse Landlord for
its cost and inconvenience incurred as a consequence of Tenant's delinquency. In
no event, however, shall the charges permitted under this Section 4 or elsewhere
in this Lease, to the extent they are considered to be interest under law,
exceed the maximum lawful rate of interest.
5. SECURITY DEPOSIT. Contemporaneously with the execution and delivery
of this Lease by Tenant, Tenant shall pay Landlord the amount of $3,000.00 (the
"Security Deposit"), which shall be held by Landlord to secure Tenant's
performance of its obligations under this Lease. In the event the Substitute
Premises or Alternative Substitution Premises become the Premises as provided in
Section 30 or Section 31, respectively, of the Addendum, Tenant shall pay
Landlord the amount of $39,286.00 as an addition to the Security Deposit. In the
event the Tenant pays such addition to the Security Deposit and Tenant has not
been in default in the performance of its obligations under this Lease after the
expiration of twelve (12) months after the Substitute Premises Commencement Date
(hereinafter defined in Section 30) or Alternative Substitute Premises
Commencement Date (defined in Section 31), Landlord shall return a portion of
the Security Deposit to the Tenant in the amount of $12,686.02, and shall return
an additional amount of $12,686.02 of the Security Deposit to Tenant within
forty-five (45) days after expiration of the expiration of such twelve (12)
month period. In the event the Tenant pays such addition to the Security Deposit
and Tenant has not been in default in the performance of its obligations under
this Lease after the expiration of twenty-four (24) months after the
Substitution Premises Commencement Date or Alternative Substitute Premises
Commencement Date, Landlord shall return a portion of the Security Deposit to
Tenant in the amount of $12,686.02, and shall return an additional amount of
$12,686.02 of the Security Deposit to Tenant within forty-five (45) days after
the expiration of such twenty-fourth month period. The Security Deposit
(including any addition thereto) is not an advance payment of Rent or a measure
or limit of Landlord's damages upon an Event of Default (defined in Section 16).
Landlord may, from time to time and without prejudice to any other remedy, use
all or a part of the Security Deposit to perform any obligation Tenant fails to
perform hereunder. Following any such application of the Security Deposit,
Tenant shall pay to Landlord on demand the amount so applied in order to restore
the Security Deposit to the amount of the security deposit immediately prior to
such application. Provided that Tenant has performed all of its obligations
hereunder, Landlord shall, within 30 days after the Term ends, return to Tenant
the portion of the Security Deposit which was not applied to satisfy Tenant's
obligations. The Security Deposit shall be held by Landlord in a separate
account maintained by Landlord for security deposits, and no interest shall be
paid thereon. If Landlord transfers its interest in the Premises and the
transferee assumes Landlord's obligations under this Lease, then Landlord may
assign the Security Deposit to the transferee and Landlord thereafter shall have
no further liability for the return of the Security Deposit.
6. LANDLORD'S OBLIGATIONS.
(a) Services. Landlord shall furnish to Tenant (1) water at
those points of supply provided for general use of tenants of the
Complex; (2) heated and refrigerated air conditioning as appropriate,
at such temperatures and in such amounts as are standard for comparable
buildings in the vicinity of the Complex; (3) janitorial service to the
Premises on weekdays, other than holidays, for Complex-standard
installations and such window washing as may from time to time be
reasonably required; (4) elevators for ingress and egress to the floor
on which the Premises are located, in common with other tenants,
provided that Landlord may reasonably limit the number of operating
elevators during non-business hours and holidays; and (5) electrical
current during normal business hours for equipment that does not
require more than 110 volts and whose electrical energy consumption
does not exceed normal office usage. Landlord shall maintain the common
areas of the Complex in reasonably good order and condition, except for
damage caused by a Tenant Party. If Tenant desires any of the services
specified in Section 6(a)(2) at any time other than between 7:00 a.m.
and 6:00 p.m. on weekdays and 8:00 a.m. to 12:00 p.m. on Saturdays
(excluding holidays), then such services shall be supplied to Tenant
upon the written request of Tenant delivered to Landlord before 3:00
p.m. on the business day preceding such extra usage, and Tenant shall
pay to Landlord the cost of such services within ten days after
Landlord has delivered to Tenant an invoice therefor. The costs
incurred by Landlord in providing after-hour HVAC service to Tenant
shall include costs for electricity, water, sewage, water treatment,
labor, metering, filtering, and maintenance reasonably allocated by
Landlord to providing such service. The minimum use of after-hours heat
or air conditioning shall be four (4) hours and the charge therefor,
including all of the above referenced costs, shall initially be $75.00
per hour for the first hour of any consecutive usage, and $50.00 per
hour for subsequent hours of consecutive usage, provided that Landlord
shall have the right, from time to time, to increase such charge as
Landlord's actual expenses incurred in connection with such usage
increase.
(b) Excess Utility Use. Landlord shall not be required to
furnish electrical current for equipment that requires more than 110
volts or other equipment whose electrical energy consumption exceeds
normal office usage. If Tenant's requirements for or consumption of
electricity exceed the electricity to be provided by Landlord as
described in Section 6(a), Landlord shall, at Tenant's expense, make
reasonable efforts to supply such service through the then-existing
feeders and risers serving the Complex and the Premises, and Tenant
shall pay
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to Landlord the cost of such service within ten days after Landlord has
delivered to Tenant an invoice therefor. Landlord may determine the
amount of such additional consumption and potential consumption by any
verifiable method, including installation of a separate meter in the
Premises installed, maintained, and read by Landlord, at Tenant's
expense. Tenant shall not install any electrical equipment unless
approved in advance by Landlord. The use of electricity in the Premises
shall not exceed the lesser of the capacity of existing feeders and
risers to or wiring in the Premises or 2.5 watts per rentable square
foot. Any risers or wiring required to meet Tenant's excess electrical
requirements shall, upon Tenant's written request, be installed by
Landlord, at Tenant's cost, if, in Landlord's judgment, the same are
necessary and shall not cause permanent damage to the Complex or the
Premises, cause or create a dangerous or hazardous condition, entail
excessive or unreasonable alterations, repairs, or expenses, or
interfere with or disturb other tenants of the Complex. If Tenant uses
machines or equipment in the Premises which affect the temperature
otherwise maintained by the air conditioning system or otherwise
overload any utility, Landlord may install supplemental air
conditioning units or other supplemental equipment in the Premises, and
the cost thereof, including the cost of installation, operation, use,
and maintenance, shall be paid by Tenant to Landlord within ten days
after Landlord has delivered to Tenant an invoice therefor. Landlord
shall not be responsible for the failure of the HVAC system to provide
normal comfort if such failure results from occupancy of the Premises
by more than an average of one person for each 200 square feet of floor
area or if Tenant uses heat-producing equipment or equipment the
electrical load of which, when combined with the load of all lighting
fixtures, exceeds 2.5 watts per square foot of floor area in any one
room or area. In addition, if the Premises are used in a manner
exceeding the aforementioned occupancy and electric load criteria or if
such window covering requirement shall not be observed or if
heat-producing or controlled climate equipment is used, Tenant shall
pay to Landlord, promptly upon billing, Landlord's additional costs of
supplying air conditioning resulting from such causes, at such rates as
Landlord shall establish therefore. Tenant agrees at all times to
cooperate fully with Landlord and to abide by all the regulations and
requirements which Landlord may prescribe for the proper functioning
and protection of the HVAC system.
(c) Restoration of Services; Abatement. Landlord shall use
reasonable efforts to restore any service required of it that becomes
unavailable; however, such unavailability shall not render Landlord
liable for any damages caused thereby, be a constructive eviction of
Tenant, constitute a breach of any implied warranty or, entitle Tenant
to any abatement of Tenant's obligations hereunder.
7. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE.
(a) Improvements; Alterations. Improvements to the Premises
shall be installed at Tenant's expense only in accordance with plans
and specifications which have been previously submitted to and approved
in writing by Landlord. Prior to making any improvements, physical
additions or other alterations in or to the Premises, Tenant must
provide stamped architectural and engineering drawings to the Landlord
for review and approval, and shall also pay all costs and expenses to
update any of Landlord's drawings relating to the Complex. No
alterations or physical additions in or to the Premises may be made
without Landlord's prior written consent, which shall not be
unreasonably withheld or delayed; however, Landlord may withhold its
consent to any alteration or addition that would affect the Building's
structure or its HVAC, plumbing, electrical, or mechanical systems.
Tenant shall not paint or install lighting or decorations, signs,
window or door lettering, or advertising media of any type on or about
the Premises without the prior written consent of Landlord, which shall
not be unreasonably withheld or delayed; however, Landlord may withhold
its consent to any such painting or installation which would affect the
appearance of the exterior of the Building or of any common areas of
the Complex. All alterations, additions, or improvements made in or
upon the Premises shall, at Landlord's option, either be removed by
Tenant prior to the end of the Term (and Tenant shall repair all damage
caused thereby), or shall remain on the Premises at the end of the Term
without compensation to Tenant. All alterations, additions, and
improvements shall be constructed, maintained, and used by Tenant, at
its risk and expense, in accordance with all Laws (defined below);
Landlord's approval of the plans and specifications therefor shall not
be a representation by Landlord that such alterations, additions, or
improvements comply with any Law.
(b) Repairs; Maintenance. Tenant shall maintain the Premises
in a clean, safe, and operable condition, and shall not permit or allow
to remain any waste or damage to any portion of the Premises. Tenant
shall repair or replace, subject to Landlord's direction and
supervision, any damage to the Complex caused by a Tenant Party. If
Tenant fails to make such repairs or replacements within 15 days after
the occurrence of such damage, then Landlord may make the same at
Tenant's cost. If any such damage occurs outside of the Premises, then
Landlord may elect to repair such damage at Tenant's expense, rather
than having Tenant repair such damage. The cost of all repair or
replacement work performed by Landlord under this Section 7 shall be
paid by Tenant to Landlord within ten days after Landlord has invoiced
Tenant therefor.
(c) Performance of Work. All work described in this Section 7
shall be performed only by Landlord or by contractors and
subcontractors approved in writing by Landlord. Landlord may charge a
construction management fee of 5% in connection with the performance of
any such work, which fee shall be paid by Tenant. Tenant shall cause
all contractors and subcontractors to procure and maintain insurance
coverage naming Landlord as an additional insured against such risks,
in such amounts, and with such companies as Landlord may reasonably
require. All such work shall be performed in accordance with all Laws
and in a good and workmanlike manner so as not to damage the Premises,
the Complex, or the components thereof.
(d) Mechanic's Liens. Tenant shall not permit any mechanic's
liens to be filed against the Premises or the Complex for any work
performed, materials furnished, or obligation incurred by or at the
request of Tenant. If such a lien is filed, then Tenant shall, within
ten days after Landlord has delivered notice of the filing thereof to
Tenant, either pay the amount of the lien, cause the lien to be
released of record or diligently contest
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such lien and deliver to Landlord a bond or other security reasonably
satisfactory to Landlord. If Tenant fails to timely take either such
action, then Landlord may pay the lien claim, and any amounts so paid,
including expenses and interest, shall be paid by Tenant to Landlord
within ten days after Landlord has invoiced Tenant therefor.
8. USE. Tenant shall continuously occupy and use the Premises only for
general office purposes (the "Permitted Use") and shall comply with all Laws
relating to the use, condition, access to, and occupancy of the Premises. The
Premises shall not be used for any use which is disreputable, creates
extraordinary fire hazards, or results in an increased rate of insurance on the
Complex or its contents, or for the storage of any hazardous materials or
substances. If, because of a Tenant Party's acts, the rate of insurance on the
Complex or its contents increases, then such acts shall be an Event of Default,
Tenant shall pay to Landlord the amount of such increase on demand, and
acceptance of such payment shall not waive any of Landlord's other rights.
Tenant shall conduct its business and control each other Tenant Party so as not
to create any nuisance or unreasonably interfere with other tenants or Landlord
in its management of the Complex.
9. ASSIGNMENT AND SUBLETTING.
(a) Transfers; Consent. Except as is otherwise set forth in
this Section 9, Tenant shall not, without the prior written consent of
Landlord, not to be unreasonably withheld or delayed, (1) assign,
transfer, or encumber this Lease or any estate or interest herein,
whether directly or by operation of law; (2) permit any other entity to
become Tenant hereunder by merger, consolidation, or other
reorganization unless: the survivor of the merger has a net worth of at
least the net worth of the Tenant on July 1, 1999, that Tenant gives
Landlord notice at least ten (10) business days before such event, and
such notice includes reasonable financial information relating to the
surviving entity; (3) if Tenant is an entity other than a corporation
whose stock is publicly traded, permit the transfer of an ownership
interest in Tenant so as to result in a change in the current control
of Tenant; (4) sublet any portion of the Premises; (5) grant any
license, concession, or other right of occupancy of any portion of the
Premises; or (6) permit the use of the Premises by any parties other
than Tenant (any of the events listed in Section 9(a)(1) through
9(a)(6) being a "Transfer"). A sublease to Telecom Sales Associates,
Inc., is hereby approved, but only for so long as the subleased space
does not exceed forty percent (40%) of the total Premises leased to
Tenant. Such approval is conditional upon the performance of each and
every covenant of this Lease. If Tenant requests Landlord's consent to
a Transfer, then Tenant shall provide Landlord with a written
description of all terms and conditions of the proposed Transfer,
copies of the proposed documentation, and the following information
about the proposed transferee: name and address; reasonably
satisfactory information about its business and business history; its
proposed use of the Premises; banking, financial, and other credit
information; and general references sufficient to enable Landlord to
determine the proposed transferee's creditworthiness and character.
Landlord shall not unreasonably withhold its consent to any assignment
or subletting of the Premises, provided that the proposed transferee
(A) is creditworthy; (B) has a good reputation in the business
community; (C) does not engage in business similar to those of other
tenants in the Complex; and (D) is not another occupant of the Complex
or person or entity with whom Landlord is negotiating to lease space in
the Complex; otherwise, Landlord may withhold its consent in its sole
discretion. Concurrently with Tenant's notice of any request for
consent to a Transfer, Tenant shall pay to Landlord a fee equal to the
greater of (i) $500.00, or (ii) all actual expenses incurred by
Landlord in reviewing such request, including without limitation
reasonable attorneys' fees incurred by Landlord in connection with
considering any request for consent to a Transfer. If Landlord consents
to a proposed Transfer, then the proposed transferee shall deliver to
Landlord a written agreement whereby it expressly assumes Tenant's
obligations hereunder; however, any transferee of less than all of the
space in the Premises shall be liable only for obligations under this
Lease that are properly allocable to the space subject to the Transfer
for the period of the Transfer. No Transfer shall release Tenant from
its obligations under this Lease, but rather Tenant and its transferee
shall be jointly and severally liable therefor. Landlord's consent to
any Transfer shall not waive Landlord's rights as to any subsequent
Transfers. If an Event of Default occurs while the Premises or any part
thereof are subject to a Transfer, then Landlord, in addition to its
other remedies, may collect directly from such transferee all rents
becoming due to Tenant and apply such rents against Rent. Tenant
authorizes its transferees to make payments of rent directly to
Landlord upon receipt of notice from Landlord to do so. Tenant shall
pay for the cost of any demising walls or other improvements
necessitated by a proposed subletting or assignment.
(b) Cancellation. Landlord may, within 30 days after
submission of Tenant's written request for Landlord's consent to an
assignment or subletting, cancel this Lease as to the portion of the
Premises proposed to be sublet or assigned as of the date the proposed
Transfer is to be effective. If Landlord cancels this Lease as to any
portion of the Premises, then this Lease shall cease for such portion
of the Premises and Tenant shall pay to Landlord all Rent accrued
through the cancellation date relating to the portion of the Premises
covered by the proposed Transfer. Thereafter, Landlord may lease such
portion of the Premises to the prospective transferee (or to any other
person) without liability to Tenant. Notwithstanding the above to the
contrary, one (1) time during the Term of this Lease, Tenant shall have
the right to withdraw its request for Landlord's consent to an
assignment or subletting by giving Landlord written notice of such
withdrawal within five (5) days of Tenant's receipt of Landlord's
notification of its intent to cancel the Lease. In the event Tenant
exercises its one (1) time right to withdraw its request for Landlord's
consent to assignment or subletting, in such instance Landlord shall
not have the right to cancel the Lease, but Landlord's right to cancel
the Lease upon any future request by Tenant for Landlord's consent to
an assignment or subletting shall not be affected, and Tenant shall
have no rights to withdraw such request.
(c) Additional Compensation. Tenant shall pay to Landlord,
immediately upon receipt thereof, fifty percent (50%) of the excess of
(1) all compensation received by Tenant for a Transfer less the costs
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reasonably incurred by Tenant with unaffiliated third parties in
connection with such Transfer (i.e., brokerage commissions, tenant
finish work, and the like) over (2) the Rent allocable to the portion
of the Premises covered thereby.
10. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY.
(a) Insurance. Tenant shall maintain throughout the Term the
following insurance policies: (1) comprehensive general liability
insurance in amounts of $1,000,000 per occurrence with $1,000,000 in
the aggregate or such other amounts as Landlord may from time to time
reasonably require, insuring Tenant, Landlord, Landlord's agents and
their respective affiliates against all liability for injury to or
death of a person or persons or damage to property arising from the use
and occupancy of the Premises; (2) insurance covering the full value of
Tenant's property and improvements, and other property (including
property of others) in the Premises; (3) contractual liability
insurance sufficient to cover Tenant's indemnity obligations hereunder;
(4) worker's compensation insurance, containing a waiver of subrogation
endorsement acceptable to Landlord; and (5) business interruption
insurance. Tenant's insurance shall provide primary coverage to
Landlord when any policy issued to Landlord provides duplicate or
similar coverage, and in such circumstance Landlord's policy will be
excess over Tenant's policy. Tenant shall furnish to Landlord
certificates of such insurance and such other evidence satisfactory to
Landlord of the maintenance of all insurance coverages required
hereunder, and Tenant shall obtain a written obligation on the part of
each insurance company to notify Landlord at least 30 days before
cancellation or a material change of any such insurance policies. All
such insurance policies shall be in form, and issued by companies,
reasonably satisfactory to Landlord.
(b) Waiver of Negligence; No Subrogation. Landlord and Tenant
each waives any claim it might have against the other for any injury to
or death of any person or persons or damage to or theft, destruction,
loss, or loss of use of any property (a "Loss"), to the extent the same
is insured against under any insurance policy that covers the Complex,
the Premises, Landlord's or Tenant's fixtures, personal property,
leasehold improvements, or business, or, in the case of Tenant's
waiver, is required to be insured against under the terms hereof,
regardless of whether the negligence of the other party caused such
Loss; however, Landlord's waiver shall not include any deductible
amounts on insurance policies carried by Landlord or to any coinsurance
penalty which Landlord may sustain. Each party shall cause its
insurance carrier to endorse all applicable policies waiving the
carrier's rights of recovery under subrogation or otherwise against the
other party.
(c) Tenant's Indemnity. To the extent not prohibited by law,
Landlord, its agents and their respective officers, directors,
partners, agents, servants and employees shall not be liable for, and
it and they are hereby released by Tenant from all liability for, any
damage either to person or property or resulting from the loss of use
thereof or any other loss, or any death, sustained by Tenant or by
other persons claiming through Tenant due to the Complex, surrounding
property or any part thereof or any appurtenances thereof becoming out
of repair, or due to the happening of any accident or event in, on or
about the Complex or surrounding property, or due to any act or neglect
of any tenant or occupant of the Complex or of any other person;
excluding only the gross negligence or willful misconduct of Landlord,
its employees, agents or contractors. This provision shall apply
particularly, but not exclusively, to damage caused by gas,
electricity, snow, frost, steam, sewage, sewer gas or odors, fire,
water or by the bursting or leaking of pipes, faucets, sprinklers,
plumbing fixtures and windows, and shall apply without distinction as
to the person whose act or neglect was responsible for the damage and
whether or not such act or neglect occurred before, at or after the
execution of this Lease, and whether the damage was due to any of the
causes specifically enumerated above or to some other cause of an
entirely different kind. Tenant further agrees that all personal
property of Tenant upon the Premises, or upon loading docks, receiving
and holding areas, or elsewhere in, on or about the Property, shall be
at the risk of Tenant only, and that neither Landlord nor its agents,
nor their partners, directors or officers, shall be liable for any loss
or damage thereto or theft thereof. Without limitation of any other
provisions hereof, Tenant agrees to defend, protect, indemnify and save
harmless Landlord and its agents, and their respective partners,
officers, directors and employees, from and against all liability to
third parties arising out of the acts or omissions of Tenant or any
subtenant or the servants, agents, employees, contractors, suppliers,
workmen and invitees of Tenant or any subtenant. Tenant agrees to
indemnify and save harmless, and upon request, defend, Landlord, its
agents, and their respective partners, directors, officers and
employees (herein called "Indemnitees") against and from any and all
claims by or on behalf of any person, arising out of or related to:
(i) Tenant's use or occupancy of the Premises or the
conduct of its business, or any activity, work, or thing,
permitted or suffered by Tenant, in, on or about the Premises
or the Property;
(ii) any occurrence in, on or about the Premises;
(iii) any breach or default on Tenant's part in the
performance or observance of, or compliance with, any term,
covenant or condition on Tenant's part to be performed
pursuant to the terms of this Lease; or
(iv) any act or negligence of Tenant or any
subtenant, or any of their respective agents, contractors,
servants, employees, invitees or licensees, whether or not the
fault or negligence of Landlord or of any other Indemnitee or
of the agents, contractors, servants, employees, invitees or
licensees of Landlord or any Indemnitee, (whether or not
occurring before or after the execution of this Lease),
contributed thereto or was the cause thereof, and from and
against all costs, counsel fees, expenses, penalties, fines
and liabilities which Landlord or any other Indemnitee may
suffer or incur in connection with any such claim and any
action or proceeding brought with respect thereto. In the
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event that any action or proceeding shall be brought by reason
of any such claim, against any party to be indemnified
hereunder, Tenant covenants that Tenant, upon notice from such
party and at Tenant's expense, shall resist and defend such
action or proceeding by counsel reasonably satisfactory to
such party.
11. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE.
(a) Subordination. This Lease shall be subordinate to any deed
of trust, mortgage, or other security instrument, or any ground lease,
master lease, or primary lease, that now or hereafter covers all or any
part of the Premises (the mortgagee under any such mortgage or the
lessor under any such lease is referred to herein as a "Landlord's
Mortgagee"). The provisions of this paragraph shall be self-operative
and no further instrument of subordination shall be required. However,
in confirmation of such subordination, Tenant shall promptly execute
and deliver to Landlord (or such other party so designated by Landlord)
at Tenant's own cost and expense, within five (5) business days after
request from Landlord an instrument, in recordable form if required,
that Landlord or Landlord's Mortgagee may request evidencing such
subordination. Any Landlord's Mortgagee may elect, at any time,
unilaterally, to make this Lease superior to its mortgage, ground
lease, or other interest in the Premises by so notifying Tenant in
writing.
(b) Attornment. Tenant shall attorn to any party succeeding to
Landlord's interest in the Premises, whether by purchase, foreclosure,
deed in lieu of foreclosure, power of sale, termination of lease, or
otherwise, upon such party's request, and, provided such succeeding
party recognizes Tenant's rights and duties under this Lease, shall
execute such agreements confirming such attornment as such party may
reasonably request.
(c) Notice to Landlord's Mortgagee. Tenant shall not seek to
enforce any remedy it may have for any default on the part of Landlord
without first giving written notice by certified mail, return receipt
requested, specifying the default in reasonable detail, to any
Landlord's Mortgagee whose address has been given to Tenant, and
affording such Landlord's Mortgagee a reasonable opportunity to perform
Landlord's obligations hereunder.
12. RULES AND REGULATIONS. Tenant shall comply with the rules and
regulations of the Complex which are attached hereto as Exhibit D. Landlord may,
from time to time, change such rules and regulations for the safety, care, or
cleanliness of the Complex and related facilities, provided that such changes
are applicable to all tenants of the Complex and will not unreasonably interfere
with Tenant's use of the Premises. Tenant shall be responsible for the
compliance with such rules and regulations by each Tenant Party.
13. CONDEMNATION.
(a) Total Taking. If the entire Complex or Premises are taken
by right of eminent domain or conveyed in lieu thereof (a "Taking"),
this Lease shall terminate as of the date of the Taking.
(b) Partial Taking - Tenant's Rights. If any part of the
Complex becomes subject to a Taking and such Taking will prevent Tenant
from conducting its business in the Premises in a manner reasonably
comparable to that conducted immediately before such Taking for a
period of more than 60 days, then Tenant may terminate this Lease as of
the date of such Taking by giving written notice to Landlord within 30
days after the Taking, and Rent shall be apportioned as of the date of
such Taking. If Tenant does not terminate this Lease, then Rent shall
be abated on a reasonable basis as to that portion of the Premises
rendered untenantable by the Taking.
(c) Partial Taking - Landlord's Rights. If any material
portion, but less than all, of the Complex becomes subject to a Taking,
or if Landlord is required to pay any of the proceeds received for a
Taking to a Landlord's Mortgagee, then Landlord may terminate this
Lease by delivering written notice thereof to Tenant within 30 days
after such Taking, and Rent shall be apportioned as of the date of such
Taking. If Landlord does not so terminate this Lease, then this Lease
will continue, but if any portion of the Premises has been taken, Rent
shall abate as provided in the last sentence of Section 13(b).
(d) Award. If any Taking occurs, then Landlord shall receive
the entire award or other compensation for the land on which the
Complex is situated, the Complex, and other improvements taken, and
Tenant may separately pursue a claim (to the extent it will not reduce
Landlord's award) against the condemnor for the value of Tenant's
personal property which Tenant is entitled to remove under this Lease,
moving costs, loss of business, and other claims it may have.
14. FIRE OR OTHER CASUALTY.
(a) Repair Estimate. If the Premises or the Complex are
damaged by fire or other casualty (a "Casualty"), Landlord shall,
within 60 days after such Casualty, deliver to Tenant a good faith
estimate (the "Damage Notice") of the time needed to repair the damage
caused by such Casualty.
(b) Landlord's and Tenant's Rights. If a material portion of
the Premises or the Complex is damaged by Casualty such that Tenant is
prevented from conducting its business in the Premises in a manner
reasonably comparable to that conducted immediately before such
Casualty and Landlord estimates that the damage caused thereby cannot
be repaired within 180 days after the Casualty, then Tenant may
terminate this Lease by delivering written notice to Landlord of its
election to terminate within 30 days after the Damage Notice has been
delivered to Tenant. If Tenant does not so timely terminate this Lease,
then (subject to Section 14(c))
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Landlord shall repair the Complex or the Premises, as the case may be,
as provided below, and Rent for the portion of the Premises rendered
untenantable by the damage shall be abated on a reasonable basis from
the date of damage until the completion of the repair, unless a Tenant
Party caused such damage, in which case, Tenant shall continue to pay
Rent without abatement.
(c) Landlord's Rights. If a Casualty damages a material
portion of the Complex, and Landlord makes a good faith determination
that restoring the Premises would be uneconomical, or if Landlord is
required to pay any insurance proceeds arising out of the Casualty to a
Landlord's Mortgagee, then Landlord may terminate this Lease by giving
written notice of its election to terminate within 30 days after the
Damage Notice has been delivered to Tenant, and Basic Rent and
Additional Rent shall be abated as of the date of the Casualty.
(d) Repair Obligation. If neither party elects to terminate
this Lease following a Casualty, then Landlord shall, within a
reasonable time after such Casualty, begin to repair the Complex and
the Premises and shall proceed with reasonable diligence to restore the
Complex and Premises to substantially the same condition as they
existed immediately before such Casualty; however, Landlord shall not
be required to repair or replace any of the furniture, equipment,
fixtures, and other improvements which may have been placed by, or at
the request of, Tenant or other occupants in the Complex or the
Premises, and Landlord's obligation to repair or restore the Complex or
Premises shall be limited to the extent of the insurance proceeds
actually received by Landlord for the Casualty in question.
15. PERSONAL PROPERTY TAXES. Tenant shall be liable for all taxes
levied or assessed against personal property, furniture, or fixtures placed by
Tenant in the Premises. If any taxes for which Tenant is liable are levied or
assessed against Landlord or Landlord's property and Landlord elects to pay the
same, or if the assessed value of Landlord's property is increased by inclusion
of such personal property, furniture or fixtures and Landlord elects to pay the
taxes based on such increase, then Tenant shall pay to Landlord, upon demand,
the part of such taxes for which Tenant is primarily liable hereunder; however,
Landlord shall not pay such amount if Tenant notifies Landlord that it will
contest the validity or amount of such taxes before Landlord makes such payment,
and thereafter diligently proceeds with such contest in accordance with law and
if the non-payment thereof does not pose a threat of loss or seizure of the
Complex or interest of Landlord therein or impose any fee or penalty against
Landlord.
16. EVENTS OF DEFAULT. Each of the following occurrences shall be an
"Event of Default":
(a) Tenant's failure to pay Rent or any other monetary
obligation under this Lease within five (5) calendar days of when due;
(b) Tenant (1) abandons or vacates the Premises or any
substantial portion thereof or (2) fails to continuously operate its
business in the Premises for the Permitted Use set forth herein;
(c) Tenant fails to provide any estoppel certificate as called
for in this Lease and such failure shall continue for five (5) business
days after written notice thereof from Landlord to Tenant;
(d) Tenant's failure to perform, comply with, or observe any
other agreement or obligation of Tenant under this Lease and the
continuance of such failure for a period of more than 30 days after
Landlord has delivered to Tenant written notice thereof, provided that
such failure shall not constitute an Event of Default if Tenant
commences actions to cure such default within thirty (30) days of
Tenant's receipt of Landlord's notice and diligently pursues such
actions to cure such default within sixty (60) days of Tenant's receipt
of Landlord's notice; and
(e) The filing of a petition by or against Tenant (the term
"Tenant" shall include, for the purpose of this Section 16(e), any
guarantor of Tenant's obligations hereunder) (1) in any bankruptcy or
other insolvency proceeding; (2) seeking any relief under any state or
federal debtor relief law; (3) for the appointment of a liquidator or
receiver for all or substantially all of Tenant's property or for
Tenant's interest in this Lease; or (4) for the reorganization or
modification of Tenant's capital structure; however, if such a petition
is filed against Tenant, then such filing shall not be an Event of
Default unless Tenant fails to have the proceedings initiated by such
petition dismissed within 90 days after the filing thereof.
17. REMEDIES. Upon any Event of Default, Landlord may, in addition to
all other rights and remedies afforded Landlord hereunder or by law or equity,
take any of the following actions:
(a) Terminate this Lease by giving Tenant written notice
thereof, in which event Tenant shall pay to Landlord the sum of (1) all
Rent accrued hereunder through the date of termination; (2) all amounts
due under Section 18(a); and (3) an amount equal to (A) the total Rent
that Tenant would have been required to pay for the remainder of the
Term discounted to present value at a per annum rate equal to the
"Prime Rate" as published on the date this Lease is terminated by The
Wall Street Journal, Southwest Edition, in its listing of "Money Rates"
minus one percent, minus (B) the then present fair rental value of the
Premises for such period, similarly discounted;
(b) Terminate Tenant's right to possess the Premises without
terminating this Lease by giving written notice thereof to Tenant, in
which event Tenant shall pay to Landlord (1) all Rent and other amounts
accrued hereunder to the date of termination of possession; (2) all
amounts due from time to time under Section 18(a); and (3) all Rent and
other net sums required hereunder to be paid by Tenant during the
remainder of the Term, diminished by any net sums thereafter received
by Landlord through reletting the Premises during such
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period. To the extent required by law, Landlord shall use reasonable
efforts to relet the Premises on such terms and conditions as Landlord
in its sole discretion may determine (including a term different from
the Term, rental concessions, and alterations to, and improvement of,
the Premises); however, Landlord shall not be obligated to relet or
attempt to relet the Premises before leasing other portions of the
Complex. Landlord shall not be liable for, nor shall Tenant's
obligations hereunder be diminished because of, Landlord's failure to
relet the Premises or to collect rent due for such reletting. Tenant
shall not be entitled to the excess of any consideration obtained by
reletting over the Rent due hereunder. Reentry by Landlord in the
Premises shall not affect Tenant's obligations hereunder for the
unexpired Term; rather, Landlord may, from time to time, bring an
action against Tenant to collect amounts due by Tenant, without the
necessity of Landlord's waiting until the expiration of the Term.
Unless Landlord delivers written notice to Tenant expressly stating
that it has elected to terminate this Lease, all actions taken by
Landlord to dispossess or exclude Tenant from the Premises shall be
deemed to be taken under this Section 17(b). If Landlord elects to
proceed under this Section 17(b), it may at any time elect to terminate
this Lease under Section 17(a).
(c) Additionally, unless otherwise required by applicable law,
Landlord may, without notice, enter upon the Premises and alter locks
or other security devices at the Premises to deprive Tenant, its
officers, employees, agents, invitees, licensees and all other
occupants, of access thereto, and Landlord shall not be required to
provide a new key or right of access to Tenant.
18. PAYMENT BY TENANT; NON-WAIVER.
(a) Payment by Tenant. Upon any Event of Default, Tenant shall
pay to Landlord all costs incurred by Landlord (including court costs
and reasonable attorneys' fees and expenses) in (1) obtaining
possession of the Premises; (2) removing and storing Tenant's or any
other occupant's property; (3) repairing, restoring, altering,
remodeling, or otherwise putting the Premises into condition acceptable
to a new tenant; (4) if Tenant is dispossessed of the Premises and this
Lease is not terminated, reletting all or any part of the Premises
(including brokerage commissions, cost of tenant finish work, and other
costs incidental to such reletting); (5) performing Tenant's
obligations which Tenant failed to perform; and (6) enforcing, or
advising Landlord of, its rights, remedies, and recourses arising out
of the Event of Default. To the full extent permitted by law, Landlord
and Tenant agree the federal and state courts of Colorado shall have
exclusive jurisdiction over any matter relating to or arising from this
Lease and the parties' rights and obligations under this Lease.
(b) No Waiver. Landlord's acceptance of Rent following an
Event of Default shall not waive Landlord's rights regarding such Event
of Default. No waiver by Landlord of any violation or breach of any of
the terms contained herein shall waive Landlord's rights regarding any
future violation of such term. Landlord's acceptance of any partial
payment of Rent shall not waive Landlord's rights with regard to the
remaining portion of the Rent that is due, regardless of any
endorsement or other statement on any instrument delivered in payment
of Rent or any writing delivered in connection therewith; accordingly,
Landlord's acceptance of a partial payment of Rent shall not constitute
an accord and satisfaction of the full amount of the Rent that is due.
19. LANDLORD'S LIEN. In addition to the statutory landlord's lien,
Tenant grants to Landlord, to secure performance of Tenant's obligations
hereunder, a security interest in all goods (including equipment and inventory),
fixtures, and other personal property of Tenant situated on the Premises and all
proceeds thereof (the "Collateral"), and the Collateral shall not be removed
from the Premises without the prior written consent of Landlord (other than in
Tenant's ordinary course of business) until all obligations of Tenant have been
fully performed. Upon the occurrence of an Event of Default, Landlord may, in
addition to all other remedies, without notice or demand except as provided
below, exercise the rights afforded to a secured party under the Colorado
Uniform Commercial Code (the "UCC"). To the extent the UCC requires Landlord to
give to Tenant notice of any act or event and such notice cannot be validly
waived before a default occurs, then five-days' prior written notice thereof
shall be reasonable notice of the act or event. Tenant agrees to execute any
financing statement or other instrument necessary to perfect Landlord's security
interest under this Section 19. Landlord may also file a copy of this Lease as a
financing statement to perfect its security interest in the Collateral. Landlord
agrees to subordinate its lien to Tenant's new purchase money financing
requirements, but only in the event that the Tenant is not in default of any
provision or covenant of this Lease.
20. SURRENDER OF PREMISES. No act by Landlord shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless it is in writing and signed by
Landlord. At the expiration or termination of this Lease, Tenant shall deliver
to Landlord the Premises with all improvements located therein in good repair
and condition, broom-clean, reasonable wear and tear (and condemnation and
Casualty damage not caused by Tenant, as to which Sections 13 and 14 shall
control) excepted, and shall deliver to Landlord all keys to the Premises.
Provided that Tenant has performed all of its obligations hereunder, Tenant may
remove all unattached trade fixtures, furniture, and personal property placed in
the Premises by Tenant, and shall remove such alterations, additions,
improvements, trade fixtures, personal property, equipment, wiring, and
furniture as Landlord may request. Tenant shall repair all damage caused by such
removal. All items not so removed shall be deemed to have been abandoned by
Tenant and may be appropriated, sold, stored, destroyed, or otherwise disposed
of by Landlord without notice to Tenant and without any obligation to account
for such items. The provisions of this Section 20 shall survive the end of the
Term.
21. HOLDING OVER. If Tenant fails to vacate the Premises at the end of
the Term, then Tenant shall be a tenant at will and, in addition to all other
damages and remedies to which Landlord may be entitled for such holding over,
Tenant shall pay a daily Basic Rent equal to the 150% of the daily Basic Rent
payable during the last month of the Term for the first thirty (30) days of such
holdover period, and 200% of the daily Basic Rent payable during the last month
of the Term for any further holdover period in excess of thirty (30) days. The
provisions of this Section 21 shall not be
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deemed to limit or constitute a waiver of any other rights or remedies of
Landlord provided herein or at law. If Tenant fails to surrender the Premises
upon the termination or expiration of this Lease, in addition to any other
liabilities to Landlord accruing therefrom, Tenant shall protect, defend,
indemnify and hold Landlord harmless from all loss, costs (including reasonable
attorneys' fees) and liability (including consequential damages) resulting from
such failure, including, without limiting the generality of the foregoing, any
claims made by any succeeding tenant founded upon such failure to surrender, and
any lost profits to Landlord resulting therefrom.
22. CERTAIN RIGHTS RESERVED BY LANDLORD. Provided that the exercise of
such rights does not unreasonably interfere with Tenant's access to and
occupancy of the Premises, Landlord shall have the following rights:
(a) To decorate and to make inspections, repairs, alterations,
additions, changes, or improvements, whether structural or otherwise,
in and about the Complex, or any part thereof; to enter upon the
Premises and, during the continuance of any such work, to temporarily
close doors, entryways, public space, and corridors in the Complex; to
interrupt or temporarily suspend Complex services and facilities; to
change the name of the Complex; and to change the arrangement and
location of entrances or passageways, doors, and doorways, corridors,
elevators, stairs, restrooms, or other public parts of the Complex;
(b) To take such reasonable measures as Landlord deems
advisable for the security of the Complex and its occupants; evacuating
the Complex for cause, suspected cause, or for drill purposes;
temporarily denying access to the Complex; and closing the Complex
after normal business hours and on Sundays and holidays, subject,
however, to Tenant's right to enter when the Complex is closed after
normal business hours under such reasonable regulations as Landlord may
prescribe from time to time; and
(c) To enter the Premises at reasonable hours to show the
Premises to prospective purchasers, lenders, or, during the last six
(6) months of the Term, tenants.
23. SUBSTITUTION SPACE. Landlord may, at Landlord's expense, relocate
Tenant within the Complex to space which is comparable in size, utility and
condition to the Premises provided it is located on the west side of the floor,
on the third floor or above. Such substitution space shall be comparable in
number of offices, and outside window frontage. If Landlord relocates Tenant,
Landlord shall reimburse Tenant for Tenant's reasonable out-of-pocket expenses
for moving Tenant's furniture, equipment, and supplies, including the cost to
move and replace phone and computer lines and cables, from the Premises to the
relocation space and for reprinting of a reasonable quantity of Tenant's
stationery (not to exceed a thirty (30) day supply). Upon such relocation, the
relocation space shall be deemed to be the Premises and the terms of the Lease
shall remain in full force and shall apply to the relocation space.
24. MISCELLANEOUS.
(a) Landlord Transfer. Landlord may transfer any portion of
the Complex and any of its rights under this Lease. If Landlord assigns
its rights under this Lease, then Landlord shall thereby be released
from any further obligations hereunder.
(b) Landlord's Liability. The liability of Landlord to Tenant
for any default by Landlord under the terms of this Lease shall be
limited to Tenant's actual direct, but not consequential, damages
therefor and shall be recoverable only from the interest of Landlord in
the Complex, and Landlord shall not be personally liable for any
deficiency. This Section shall not limit any remedies which Tenant may
have for Landlord's defaults which do not involve the personal
liability of Landlord.
(c) Force Majeure. Other than for Tenant's obligations under
this Lease that can be performed by the payment of money (e.g., payment
of Rent and maintenance of insurance), whenever a period of time is
herein prescribed for action to be taken by either party hereto, such
party shall not be liable or responsible for, and there shall be
excluded from the computation of any such period of time, any delays
due to strikes, riots, acts of God, shortages of labor or materials,
war, governmental laws, regulations, or restrictions, or any other
causes of any kind whatsoever which are beyond the control of such
party.
(d) Brokerage. Neither Landlord nor Tenant has dealt with any
broker or agent in connection with the negotiation or execution of this
Lease, other than CB Richard Ellis, Inc., acting on behalf of Landlord,
and The Clark Group, acting on behalf of Tenant. Tenant and Landlord
shall each indemnify the other against all costs, expenses, attorneys'
fees, and other liability for commissions or other compensation claimed
by any broker or agent claiming the same by, through, or under the
indemnifying party.
(e) Estoppel Certificates. From time to time, but no more than
two (2) times in each twelve (12) month time period, unless additional
certificates are reasonably required, Tenant shall furnish to any party
designated by Landlord, within ten days after Landlord has made a
request therefor, a certificate signed by Tenant confirming and
containing such factual certifications and representations as to this
Lease as Landlord may reasonably request.
(f) Notices. Any notice, request, statement or other writing
pursuant to this Lease shall be deemed to have been given if sent by
registered or certified mail, postage prepaid, return receipt requested
to the party at the address stated below:
To Landlord: Silverbrae Holdings, Inc.
999 - 18th Street, Suite 1000
Denver, Colorado 80202
Attn: Garth R. D. Tait
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or to Tenant at the following address until occupancy of the Premises
and after occupancy of the Premises by Tenant, at the Premises:
Multi-Link Telecommunications, Inc.
811 Lincoln Street
Denver, Colorado 80203
Attn: Nigel Alexander or Shawn Stickle
and such notice shall be deemed to have been received by the Landlord
or Tenant, as the case may be, on the second business day after the
date on which it shall have been so mailed.
(g) Separability. If any clause or provision of this Lease is
illegal, invalid, or unenforceable under present or future laws, then
the remainder of this Lease shall not be affected thereby and in lieu
of such clause or provision, there shall be added as a part of this
Lease a clause or provision as similar in terms to such illegal,
invalid, or unenforceable clause or provision as may be possible and be
legal, valid, and enforceable.
(h) Amendments; and Binding Effect. This Lease may not be
amended except by instrument in writing signed by Landlord and Tenant.
No provision of this Lease shall be deemed to have been waived by
Landlord unless such waiver is in writing signed by Landlord, and no
custom or practice which may evolve between the parties in the
administration of the terms hereof shall waive or diminish the right of
Landlord to insist upon the performance by Tenant in strict accordance
with the terms hereof. The terms and conditions contained in this Lease
shall inure to the benefit of and be binding upon the parties hereto,
and upon their respective successors in interest and legal
representatives, except as otherwise herein expressly provided. This
Lease is for the sole benefit of Landlord and Tenant, and, other than
Landlord's Mortgagee, no third party shall be deemed a third party
beneficiary hereof.
(i) Quiet Enjoyment. Provided Tenant has performed all of its
obligations hereunder, Tenant shall peaceably and quietly hold and
enjoy the Premises for the Term, without hindrance from Landlord or any
party claiming by, through, or under Landlord, but not otherwise,
subject to the terms and conditions of this Lease.
(j) No Merger. There shall be no merger of the leasehold
estate hereby created with the fee estate in the Premises or any part
thereof if the same person acquires or holds, directly or indirectly,
this Lease or any interest in this Lease and the fee estate in the
leasehold Premises or any interest in such fee estate.
(k) No Offer. The submission of this Lease to Tenant shall not
be construed as an offer, and Tenant shall not have any rights under
this Lease unless Landlord executes a copy of this Lease and delivers
it to Tenant.
(l) Entire Agreement. This Lease constitutes the entire
agreement between Landlord and Tenant regarding the subject matter
hereof and supersedes all oral statements and prior writings relating
thereto. Except for those set forth in this Lease, no representations,
warranties, or agreements have been made by Landlord or Tenant to the
other with respect to this Lease or the obligations of Landlord or
Tenant in connection therewith. The normal rule of construction that
any ambiguities be resolved against the drafting party shall not apply
to the interpretation of this Lease or any exhibits or amendments
hereto.
(m) Waiver of Jury Trial. To the maximum extent permitted by
law, Landlord and Tenant each waive right to trial by jury in any
litigation arising out of or with respect to this Lease.
(n) Governing Law. This Lease shall be governed by and
construed in accordance with the laws of the State in which the
Premises are located.
(o) Joint and Several Liability. If Tenant is comprised of
more than one party, each such party shall be jointly and severally
liable for Tenant's obligations under this Lease.
(p) Financial Reports. Up to one (1) time per twelve (12)
month period, or more frequently if required by Landlord's Mortgagee,
within 15 days after Landlord's request, Tenant will furnish Tenant's
most recent audited financial statements (including any notes to them)
to Landlord, or, if no such audited statements have been prepared, such
other financial statements (and notes to them) as may have been
prepared by an independent certified public accountant or, failing
those, Tenant's internally prepared financial statements. Tenant will
discuss its financial statements with Landlord and will give Landlord
access to Tenant's books and records in order to enable Landlord to
verify the financial statements. Landlord will not disclose any aspect
of Tenant's financial statements that Tenant designates to Landlord as
confidential except (1) to Landlord's lenders or prospective purchasers
of the Complex; (2) in litigation between Landlord and Tenant; and/or
(3) if required by court order.
(q) Landlord's Fees. Whenever Tenant requests Landlord to take
any action or give any consent required or permitted under this Lease,
Tenant will reimburse Landlord for Landlord's reasonable costs incurred
in reviewing the proposed action or consent, including without
limitation reasonable attorneys', engineers' or
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architects' fees, within 10 days after Landlord's delivery to Tenant of
a statement of such costs. Tenant will be obligated to make such
reimbursement without regard to whether Landlord consents to any such
proposed action.
(r) General Definitions. The following terms shall have the
following meanings: "Laws" means all federal, state, and local laws,
rules and regulations, all court orders, all governmental directives
and governmental orders, and all restrictive covenants affecting the
Property, and "Law" means any of the foregoing; "Affiliate" means any
person or entity which, directly or indirectly, controls, is controlled
by, or is under common control with the party in question; "Tenant
Party" shall include Tenant, any assignees claiming by, through, or
under Tenant, any subtenants claiming by, through, or under Tenant, and
any agents, contractors, employees, invitees of the foregoing parties;
and "including" means including, without limitation.
(s) Independent Covenants. This Lease shall be construed as
though the covenants herein between Landlord and Tenant are independent
and not dependent and Tenant shall not be entitled to any setoff of the
rent or other amounts owing hereunder against Landlord or to undertake
any of Landlord's obligations if Landlord fails to perform its
obligations set forth herein.
(t) List of Exhibits. All exhibits and attachments attached
hereto are incorporated herein by this reference.
Addendum
Exhibit A-1 Outline of Premises under paragraph 1.(a).
Exhibit A-2 Outline of Premises under paragraph 1.(b).
Exhibit B Depiction of Building
Exhibit C Legal Description of Real Property
Exhibit D Complex Rules and Regulations
Exhibit E Parking Agreement
(u) Americans With Disabilities Act.
(1) Landlord shall, subject to reimbursement as part
of the Complex's Operating Costs in compliance with the
provisions of Section 3(c)(2), be responsible for any
alterations, modifications or improvements to the common areas
which are required under Title III of the Americans With
Disabilities Act ("ADA") arising subsequent to the date
hereof.
(2) Tenant shall, at Tenant's sole cost and expense,
be responsible for any alterations, modifications or
improvements to the Premises, and the acquisition of any
auxiliary aids, required under the ADA, including all
alterations, modifications or improvements required: (1) as a
result of Tenant (or any subtenant, assignee or
concessionaire) being a Public Accommodation (as defined in
the ADA); (2) as a result of the Premises being a Commercial
Facility (as defined in the ADA); (3) as a result of any
leasehold improvements made to the Premises by, or on behalf
of, Tenant or any subtenant, assignee or concessionaire
(whether or not Landlord's consent to such leasehold
improvements was obtained); or (4) as a result of the
employment by Tenant (or any subtenant, assignee or
concessionaire) of any individual with a disability.
(3) With respect to the use restrictions set forth in
this Lease, and the restrictions on assignments and subletting
set forth in this Lease, it is hereby specifically understood
and agreed that Landlord shall have no obligation to consent
to, or permit, a use of the Premises, or an assignment of the
Lease or a sublease of the Premises (collectively herein a
"Use Change") if such Use Change would require the making of
any alterations, modifications or improvements to the Premises
or the Common Areas, or the acquisition of any auxiliary aids,
required under the ADA, unless Tenant performs all such acts
and satisfies Landlord's requirements for financial
responsibility for the costs of such compliance (which may
include, by way of example, posting of a completion bond, or
establishment of an escrow account).
(4) With respect to any work as described in Exhibit
F, Tenant shall be responsible for compliance with the ADA in
the design and layout of the work and Landlord shall have no
responsibility therefor. Landlord hereby represents that it
has not received any notice that any of the common areas of
the Complex is in violation of the provisions of the ADA and
Landlord believes that the common areas of the Complex comply
with the requirements of the ADA in all material respects.
(v) Attorneys' Fees. If any legal action (including, without
limitation, negotiations, civil action, arbitration, mediation, or
administrative proceeding) is necessary as a result of any breach of
this Lease, or is required to enforce or interpret any of the terms,
covenants or conditions of this Lease, the substantially-prevailing
party shall be entitled to receive from the other party all costs and
fees incurred in connection therewith, including, without limitation,
reasonable attorneys' fees, expert witness fees and consulting fees.
25. OTHER PROVISIONS. LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY
IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL
PURPOSE, AND TENANT'S OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE
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CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS
HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL
CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, SETOFF OR DEDUCTION,
NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER,
WHETHER EXPRESS OR IMPLIED.
26. HAZARDOUS MATERIALS. Tenant shall not store highly flammable
materials or goods, explosives, perishable foodstuffs, contraband, live animals,
materials or goods which emit odors in or upon the Premises. The Tenant
covenants that it shall not store, use or possess nor permit the storage, use or
possession of any Hazardous Substance (hereinafter defined) upon the Premises
other than normal office products in limited quantities. Hazardous Substance for
purposes of this Lease shall mean, without limitation, any flammable explosives,
radon, radioactive materials, asbestos, urea-formaldehyde foam insulation,
polychlorinated biphenyls, petroleum and petroleum based products, methane,
hazardous materials, hazardous wastes, hazardous or toxic substances or related
materials, as defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (42 USC Sections 1801 et seq., Sections
6901 et seq.), the Toxic Substances Control Act, as amended (15 USC Sections
2601 et seq.), or any other similar law, rule, regulation or statute concerning
the protection of the environment (collectively "Environment Laws"). Tenant
hereby covenants and agrees, at its sole cost and expense, to indemnify, protect
and defend and save harmless the Landlord and any of its members, managers,
employees and agents from and against any and all damages, losses, liabilities,
obligations, penalties, claims, litigation, demands, defenses, judgments, suits,
actions, proceedings, costs, disbursements and/or expenses (including, without
limitation, attorneys' and experts' fees, expenses and disbursements) of any
kind or nature whatsoever which may at any time be imposed upon, incurred by or
asserted or awarded against the Landlord, its members, managers, agents or
employees relating to, resulting from or arising out of Tenant's failure to
comply with its obligations under the foregoing paragraph or Tenant's violation
of any Environmental Law with respect to its use of the Premises.
Notwithstanding any provision contained in this Lease to the contrary, the
indemnification provisions set forth in this Section 26 shall survive any
expiration or termination of this Lease.
27. TELEPHONE AND TELECOMMUNICATIONS SERVICES.
(a) Tenant acknowledges and agrees that all telephone and
telecommunications services ("Telecommunications Services") desired by
Tenant shall be ordered and utilized at the sole expense of Tenant.
Unless Landlord otherwise requests or consents in writing, all
equipment, apparatus and devices, including without limitation wiring
and cables, for the provision of Telecommunications Services (the
"Telecommunications Equipment") shall be and remain solely in the
Premises. Unless otherwise specifically agreed in writing, Landlord
shall have no responsibility for the maintenance of Tenant's
Telecommunications Equipment, nor for any wiring or other
infrastructure to which Tenant's Telecommunications Equipment may be
connected. Tenant agrees that, to the extent any Telecommunications
Services are interrupted, curtailed or discontinued, Landlord shall
have no obligation or liability with respect thereto and it shall be
the sole obligation of Tenant, at its sole expense, to obtain
substitute service.
(b) Landlord shall have the right, upon such notice as is
practicable in the case of emergencies, and otherwise upon reasonable
prior notice to Tenant, to interrupt or turn off telecommunications
facilities in the event of emergency or as necessary in connection with
repairs to the Complex or installation of telecommunications equipment
for other tenants of the Complex.
(c) Any and all Telecommunications Equipment installed in the
Premises, or elsewhere in the Complex by or on behalf of Tenant,
including wiring and other facilities for the provision of
Telecommunications Services, shall be removed by Tenant upon the
expiration or earlier termination of the Term of this Lease, by Tenant
at its sole expense or, at Landlord's election, by Landlord at Tenant's
sole expense, with the cost thereof to be paid as Additional Rent under
this Lease.
(d) If the Telecommunications Equipment is not removed within
thirty (30) days of the termination or expiration of this Lease, the
Telecommunications Equipment shall conclusively be deemed to have been
abandoned and may be removed, appropriated, sold, stored, destroyed,
otherwise disposed of, or retained and used by Landlord without notice
to Tenant, without obligation to account therefor, and without payment
to Tenant or credit against any amount due from Tenant to Landlord
pursuant to this Lease. Tenant shall pay to Landlord upon demand all
costs of any such removal, disposition and storage of the
Telecommunications Equipment, as well as all costs to repair any damage
to the Complex caused by such removal.
(e) In the event that Tenant wishes at any time to utilize the
services of a telephone or telecommunications provider whose equipment
is not then servicing the Complex (a "New Provider"), no such New
Provider shall be permitted to install its lines or other equipment
within the Complex without first securing the prior written approval of
the Landlord, which approval may be withheld in Landlord's sole and
absolute discretion. Landlord's approval shall not be deemed any kind
of warranty or representation by Landlord, including, without
limitation, any warranty or representation as to the suitability,
competence or financial strength of the New Provider. Without
limitation of Landlord's right to withhold consent in its sole and
absolute discretion, Landlord may refuse to give its approval unless
all of the following conditions are satisfied: (i) Landlord shall incur
no expense whatsoever with respect to any aspect of the New Provider's
provision of its services, including, without limitation, the costs of
installation, materials and services; (ii) prior to commencement of any
work in or about the Complex by the New Provider, the New Provider
shall supply Landlord with such written indemnities, insurance,
financial statements, and such other items as Landlord, in its sole and
absolute discretion, determines to be necessary to protect its
financial interests and the interests of the Complex related
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to the proposed activities of the New Provider; (iii) the New Provider
agrees in writing to abide by such rules and regulations, building and
other codes, job site rules and such other requirements as are
determined by Landlord, in its sole and absolute discretion, to be
necessary to protect the interests of the Complex, the tenants in the
Complex and Landlord; (iv) Landlord determines, in its sole and
absolute discretion, that there is sufficient space in the Complex for
the placement of all of the New Provider's equipment and materials; (v)
Landlord receives from the New Provider such compensation as is
determined by the Landlord, in its sole and absolute discretion, to
compensate it for space used in the Complex for the storage and
maintenance of the New Provider's equipment, for the fair market value
of the New Provider's access to the Complex, and any costs which may be
expected to be incurred by Landlord; and (vi) all of the foregoing
matters are documented in a written agreement between Landlord and the
New Provider, the form and content of which are satisfactory to
Landlord in its sole and absolute discretion.
(f) Notwithstanding any provision of the preceding subsection
to the contrary, the refusal of Landlord to grant its approval to any
New Provider shall not be deemed a default or breach by Landlord of its
obligations under this Lease, and in no event shall Tenant have the
right to terminate this Lease or claim entitlement to rent abatement
for Landlord's refusal to grant Tenant's request for approval of a New
Provider. The provisions of this Section 27 may be enforced solely by
Tenant and Landlord and are not for the benefit of any other party.
Specifically, but without limitation, no telephone or
telecommunications provider is intended to be, nor shall be deemed, a
third party beneficiary of this Lease.
(g) Tenant shall not utilize any wireless communications
equipment (other than usual and customary cellular telephones),
including antennae and satellite receiver dishes, within the Premises
or the Complex, without Landlord's prior written consent. Such consent
shall be granted only in the sole and absolute discretion of the
Landlord, and shall be conditioned in such a manner, in Landlord's sole
and absolute discretion, so as to protect Landlord's financial interest
and the interest of the Complex, and the other tenants therein.
28. GUARANTY. The Guarantor hereby unconditionally and irrevocably
guarantees Tenant's performance of each and every covenant of this Lease. This
is an absolute and continuing guaranty of payment and performance, and not
solely a guaranty of collection. The Guarantor shall promptly perform or make
payment upon receiving written notice from Landlord of Tenant's failure to
comply with this Lease. If the Guarantor fails to perform or make payment after
notice from Landlord, and if any legal action (including, without limitation,
negotiations, civil action, arbitration, mediation, or administrative
proceeding) is necessary as a result such failure, then Landlord shall be
entitled to receive from the Guarantor all costs and fees incurred in connection
with enforcing this Guaranty, including, without limitation, reasonable
attorneys' fees, expert witness fees and consulting fees. The Guarantor hereby
expressly waives any right to require Landlord to first proceed against Tenant;
have Tenant joined with Guarantor in any suit arising out of this Lease; or
pursue or exhaust any other rights in Landlord's power whatsoever. The Guarantor
hereby waives any defense arising by reason of disability, lack of authority or
power, or other defense of Tenant, and shall remain liable hereon regardless of
whether Tenant is found not liable thereon for any reason including, without
limitation, disability, bankruptcy, insolvency, reorganization, dissolution, or
operation of law. It is expressly agreed that the liability of Guarantor shall
be primary and not secondary. Guarantor recognizes that Landlord is relying upon
this Guaranty and the undertakings of the Guarantor hereunder in executing this
Lease with Tenant, and further recognizes that this Guaranty is a material
inducement to Landlord in executing this Lease. The Guarantor represents and
warrants that it will benefit from Tenant's Lease with Landlord; that Guarantor
has the authority and power to unconditionally Guaranty each and every covenant
of this Lease, and that this Guaranty constitutes valid and binding obligations
of Guarantor, enforceable in accordance with its terms.
Dated as of the date first above written.
LANDLORD:
LAKESIDE HOLDINGS, L.L.C., a Delaware
limited liability company
BY: Silverbrae Holdings, Inc., a
Colorado corporation, Agent
Date: March 29, 1999 By: /s/ Garth R. D. Tait
------------------------- -------------------------------------
Garth R. D. Tait, President
TENANT:
MULTI-LINK TELECOMMUNICATIONS, INC.,
a Colorado corporation
Date: March 29, 1999 By: /s/ Nigel V. Alexander
------------------------- ------------------------------------------
Its: Chief Executive Officer
------------------------------------
GUARANTOR:
MULTI-LINK COMMUNICATIONS, INC.,
a Colorado corporation
Date: March 29, 1999 By: /s/ Nigel V. Alexander
------------------------- ------------------------------------------
Its: Chief Executive Officer
------------------------------------
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15
EXHIBIT A-1
[OUTLINE OF PREMISES]
16
EXHIBIT A-2
[OUTLINE OF PREMISES]
17
EXHIBIT B
[DEPICTION OF BUILDING]
18
EXHIBIT C
[LEGAL DESCRIPTION OF REAL PROPERTY]
PARCEL 1:
A PARCEL OF LAND LOCATED IN THE NORTHEAST 1/4 OF SECTION 24, TOWNSHIP 3 SOUTH,
RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORWEST CORNER OF THE NORTHEAST 1/4 OF SAID SECTION 24; THENCE
SOUTH 00 DEGREES 04 MINUTES 00 SECONDS EAST ALONG THE WEST LINE OF THE NORTHEAST
1/4 OF SAID SECTION 24, A DISTANCE OF 334.77 FEET; THENCE SOUTH 89 DEGREES 59
MINUTES 30 SECONDS EAST, A DISTANCE OF 60.00 FEET TO THE INTERSECTION OF THE
EAST LINE OF HARLAN STREET WITH THE SOUTH LINE OF COLORADO DEPARTMENT OF
TRANSPORTATION RIGHT OF WAY AS DESCRIBED IN BOOK 1875 AT PAGE 135 FROM WHICH THE
NORTHWEST CORNER OF THE NORTHEAST 1/4 OF SAID SECTION 24 BEARS NORTH 10 DEGREES
13 MINUTES 30 SECONDS WEST, A DISTANCE OF 340.10 FEET TO THE TRUE POINT OF
BEGINNING;
THENCE CONTINUING SOUTH 89 DEGREES 59 MINUTES 30 SECONDS EAST ALONG THE SOUTH
LINE OF SAID DESCRIBED PARCEL, A DISTANCE OF 932.50 FEET; THENCE SOUTH 00
DEGREES 00 MINUTES 00 SECONDS WEST, A DISTANCE OF 32.70 FEET; THENCE SOUTH 90
DEGREES 00 MINUTES 00 SECONDS EAST, A DISTANCE OF 50.27 FEET; THENCE SOUTH 00
DEGREES 00 MINUTES 00 SECONDS WEST, A DISTANCE OF 222.44 FEET TO A POINT ON THE
NORTH SHORE OF LAKE RHODA; THENCE SOUTH 63 DEGREES 48 MINUTES 30 SECONDS WEST, A
DISTANCE OF 9.46 FEET; THENCE SOUTH 82 DEGREES 38 MINUTES 00 SECONDS WEST, A
DISTANCE OF 184.00 FEET; THENCE NORTH 82 DEGREES 24 MINUTES 30 SECONDS WEST, A
DISTANCE OF 119.00 FEET; THENCE SOUTH 62 DEGREES 19 MINUTES 00 SECONDS WEST, A
DISTANCE OF 87.00 FEET; THENCE SOUTH 05 DEGREES 53 MINUTES 30 SECONDS WEST, A
DISTANCE OF 74.00 FEET; THENCE SOUTH 23 DEGREES 13 MINUTES 30 SECONDS EAST, A
DISTANCE OF 132.00 FEET; THENCE SOUTH 09 DEGREES 19 MINUTES 30 SECONDS EAST, A
DISTANCE OF 42.00 FEET; THENCE SOUTH 07 DEGREES 22 MINUTES 00 SECONDS WEST, A
DISTANCE OF 154.00 FEET; THENCE SOUTH 46 DEGREES 22 MINUTES 30 SECONDS WEST, A
DISTANCE OF 50.00 FEET; THENCE SOUTH 83 DEGREES 09 MINUTES 00 SECONDS WEST, A
DISTANCE OF 125.00 FEET; THENCE NORTH 00 DEGREES 04 MINUTES 00 SECONDS WEST, A
DISTANCE OF 28.99 FEET; THENCE ALONG THE ARC OF A CURVE TO THE RIGHT HAVING A
RADIUS OF 168.15 FEET, A DISTANCE OF 21.66 FEET (THE CHORD OF WHICH BEARS NORTH
88 DEGREES 06 MINUTES 32 SECONDS WEST 21.64 FEET); THENCE NORTH 84 DEGREES 25
MINUTES 10 SECONDS WEST, A DISTANCE OF 72.00 FEET; THENCE ALONG THE ARC OF A
CURVE TO THE RIGHT (THE CHORD OF WHICH BEARS NORTH 61 DEGREES 28 MINUTES 39
SECONDS WEST 168.55 FEET) HAVING A RADIUS OF 216.21 FEET, A DISTANCE OF 173.14
FEET; THENCE NORTH 38 DEGREES 32 MINUTES 08 SECONDS WEST, A DISTANCE OF 42.11
FEET; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 63.57 FEET,
A DISTANCE OF 48.64 FEET (THE CHORD OF WHICH BEARS NORTH 60 DEGREES 27 MINUTES
23 SECONDS WEST 47.47 FEET), TO A POINT OF COMPOUND CURVE; THENCE ALONG THE ARC
OF A CURVE CONCAVE TO THE LEFT HAVING A RADIUS OF 122.00 FEET, A DISTANCE OF
208.01 FEET (THE CHORD OF WHICH BEARS SOUTH 48 DEGREES 46 MINUTES 41 SECONDS
WEST 183.72 FEET); THENCE SOUTH 89 DEGREES 56 MINUTES 00 SECONDS WEST, A
DISTANCE OF 20.00 FEET TO A POINT ON THE EAST RIGHT-OF-WAY OF HARLAN STREET;
THENCE NORTH 00 DEGREES 04 MINUTES 00 SECONDS WEST, ALONG SAID EAST RIGHT-OF-WAY
LINE, A DISTANCE OF 693.74 FEET TO THE TRUE POINT OF BEGINNING, ALSO KNOWN AS
TRACT B, LAKESIDE OFFICE PARK MINOR SUBDIVISION, FILING NO. 1, COUNTY OF
JEFFERSON, STATE OF COLORADO, CONTAINING 11.890 ACRES, MORE OR LESS.
PARCEL 2:
A PARCEL OF LAND LOCATED IN THE NORTHEAST 1/4 OF SECTION 24, TOWNSHIP 3 SOUTH,
RANGE 69 WEST OF THE 6TH PRINCIPAL MERIDIAN, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT OF INTERSECTION OF THE SOUTH RIGHT-OF-WAY LINE OF
INTERSTATE HIGHWAY I-70 AND THE EAST RIGHT-OF-WAY OF HARLAN STREET, FROM WHENCE
THE NORTHWEST CORNER OF THE NORTHEAST 1/4 OF SAID SECTION 24 BEARS NORTH 10
DEGREES 13 MINUTES 30 SECONDS WEST A DISTANCE OF 340.10 FEET; THENCE SOUTH 00
DEGREES 04 MINUTES 00 SECONDS EAST 693.74 FEET ALONG THE EAST RIGHT-OF-WAY LINE
OF SAID HARLAN STREET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 89 DEGREES 56
MINUTES 00 SECONDS EAST A DISTANCE OF 20.00 FEET TO A POINT; THENCE ALONG THE
ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 122.00 FEET A DISTANCE OF 208.01
FEET (THE CHORD OF WHICH BEARS NORTH 48 DEGREES 46 MINUTES 41 SECONDS EAST
183.72 FEET) TO A POINT OF COMPOUND CURVE; THENCE ALONG THE ARC OF A CURVE TO
THE RIGHT HAVING A RADIUS OF 63.57 FEET A DISTANCE OF 48.64 FEET (THE CHORD OF
WHICH BEARS SOUTH 60 DEGREES 27 MINUTES 23 SECONDS EAST 47.47 FEET) TO A POINT;
THENCE SOUTH 38 DEGREES 32 MINUTES 08 SECONDS
19
EAST 42.11 FEET TO A POINT; THENCE ALONG THE ARC OF A CURVE TO THE LEFT HAVING A
RADIUS OF 216.21 FEET A DISTANCE OF 173.14 FEET (THE CHORD OF WHICH BEARS SOUTH
61 DEGREES 28 MINUTES 39 SECONDS EAST 168.55 FEET) TO A POINT; THENCE SOUTH 84
DEGREES 25 MINUTES 10 SECONDS EAST A DISTANCE OF 72.00 FEET TO A POINT; THENCE
ALONG THE ARC OF A CURVE TO THE LEFT HAVING A RADIUS OF 168.15 FEET A DISTANCE
OF 21.66 FEET (THE CHORD OF WHICH BEARS SOUTH 88 DEGREES 06 MINUTES 32 SECONDS
EAST 21.64 FEET) TO A POINT; THENCE SOUTH 00 DEGREES 04 MINUTES 00 SECONDS EAST
335.79 FEET TO A POINT; THENCE SOUTH 89 DEGREES 56 MINUTES 00 SECONDS WEST A
DISTANCE OF 467.10 FEET TO A POINT ON THE EAST RIGHT-OF-WAY OF SAID HARLAN
STREET; THENCE NORTH 00 DEGREES 04 MINUTES 00 SECONDS WEST A DISTANCE OF 359.80
FEET ALONG SAID EAST RIGHT-OF-WAY TO THE TRUE POINT OF BEGINNING, ALSO KNOWN AS
TRACT C, LAKESIDE OFFICE PARK MINOR SUBDIVISION, FILING NO. 1, COUNTY OF
JEFFERSON, STATE OF COLORADO, CONTAINING 4.241 ACRES, MORE OR LESS.
PARCEL 3:
A RECIPROCAL EASEMENT FOR INGRESS AND EGRESS AS DESCRIBED IN AGREEMENT FOR
CROSS-EASEMENTS AND CREATION OF COVENANTS AS RECORDED NOVEMBER 2, 1993 UNDER
RECEPTION NO. 93179075, COUNTY OF JEFFERSON, STATE OF COLORADO.
20
EXHIBIT D
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the
Building, the parking garage associated therewith, and the appurtenances
thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by tenants or used by any tenant for purposes
other than ingress and egress to and from their respective leased premises and
for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the
purposes for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or deposited therein. Damage resulting to any such
fixtures or appliances from misuse by a tenant or its agents, employees or
invitees, shall be paid by such tenant.
3. No signs, advertisements or notices shall be painted or affixed on
or to any windows or doors or other part of the Building without the prior
written consent of Landlord. No nails, hooks or screws shall be driven or
inserted in any part of the Building except by Building maintenance personnel.
No curtains or other window treatments shall be placed between the glass and the
Building standard window treatments.
4. Landlord shall provide and maintain an alphabetical directory for
all tenants in the main lobby of the Building. Landlord shall provide Tenant
with two lines on said directory.
5. Landlord shall provide all door locks in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any additional
door locks in its leased premises without Landlord's prior written consent.
Landlord shall furnish to each tenant a reasonable number of keys to such
tenant's leased premises, at such tenant's cost, and no tenant shall make a
duplicate thereof.
6. Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by tenants of any bulky material, merchandise or
materials which require use of elevators or stairways, or movement through the
Building entrances or lobby shall be conducted under Landlord's supervision at
such times and in such a manner as Landlord may reasonably require. Each tenant
assumes all risks of and shall be liable for all damage to articles moved and
injury to persons or public engaged or not engaged in such movement, including
equipment, property and personnel of Landlord if damaged or injured as a result
of acts in connection with carrying out this service for such tenant.
7. Landlord may prescribe weight limitations and determine the
locations for safes and other heavy equipment or items, which shall in all cases
be placed in the Building so as to distribute weight in a manner acceptable to
Landlord which may include the use of such supporting devices as Landlord may
require. All damages to the Building caused by the installation or removal of
any property of a tenant, or done by a tenant's property while in the Building,
shall be repaired at the expense of such tenant.
8. Corridor doors, when not in use, shall be kept closed. Nothing shall
be swept or thrown into the corridors, halls, elevator shafts or stairways. No
birds or animals shall be brought into or kept in, on or about any tenant's
leased premises. except for seeing eye dogs to assist with a handicap
individual. No portion of any tenant's leased premises shall at any time be used
or occupied as sleeping or lodging quarters.
9. Tenant shall cooperate with Landlord's employees in keeping its
leased premises neat and clean. Tenants shall not employ any person for the
purpose of such cleaning other than the Building's cleaning and maintenance
personnel.
10. To ensure orderly operation of the Building, no ice, mineral or
other water, towels, newspapers, etc. shall be delivered to any leased area
except by persons approved by Landlord.
11. Tenant shall not make or permit any vibration or improper,
objectionable or unpleasant noises or odors in the Building or otherwise
interfere in any way with other tenants or persons having business with them.
12. No machinery of any kind (other than normal office equipment) shall
be operated by any tenant on its leased area without Landlord's prior written
consent, nor shall any tenant use or keep in the Building any flammable or
explosive fluid or substance.
13. Landlord will not be responsible for lost or stolen personal
property, money or jewelry from tenant's leased premises or public or common
areas regardless of whether such loss occurs when the area is locked against
entry or not.
14. No vending or dispensing machines of any kind may be maintained in
any leased premises without the prior written permission of Landlord.
15. Tenant shall not conduct any activity on or about the Premises or
Building which will draw pickets, demonstrators, or the like.
16. All vehicles are to be currently licensed, in good operating
condition, parked for business purposes having to do with Tenant's business
operated in the Premises, parked within designated parking spaces, one vehicle
to each space. No vehicle shall be parked as a "billboard" vehicle in the
parking lot. Any vehicle parked improperly may be towed away. Tenant, Tenant's
agents, employees, vendors and customers who do not operate or park their
vehicles as required shall subject the vehicle to being towed at the expense of
the owner or driver. Tenant shall indemnify, hold and save harmless Landlord of
any liability arising from the towing or booting of any vehicles belonging to a
Tenant Party.
21
LEASE AGREEMENT
BETWEEN
LAKESIDE HOLDINGS, L.L.C.,
AS LANDLORD
AND
MULTI-LINK TELECOMMUNICATIONS, INC.,
AS TENANT
DATED: MARCH 29, 1999
22
TABLE OF CONTENTS
Page
----
1. Lease Grant .......................................................................................... 1
2. Term ................................................................................................. 1
3. Rent ................................................................................................. 1
(a) Basic Rent .................................................................................. 1
(b) Payment ..................................................................................... 1
(c) Operating Costs ............................................................................. 2
4. Delinquent Payment; Handling Charges ................................................................. 4
5. Security Deposit ..................................................................................... 4
6. Landlord's Obligations ............................................................................... 4
(a) Services .................................................................................... 4
(b) Excess Utility Use .......................................................................... 5
(c) Restoration of Services; Abatement .......................................................... 5
7. Improvements; Alterations; Repairs; Maintenance ...................................................... 6
(a) Improvements; Alterations ................................................................... 6
(b) Repairs; Maintenance ........................................................................ 6
(c) Performance of Work ......................................................................... 6
(d) Mechanic's Liens ............................................................................ 6
8. Use .................................................................................................. 6
9. Assignment and Subletting ............................................................................ 7
(a) Transfers; Consent .......................................................................... 7
(b) Cancellation ................................................................................ 7
(c) Additional Compensation ..................................................................... 8
10. Insurance; Waivers; Subrogation; Indemnity ........................................................... 8
(a) Insurance ................................................................................... 8
(b) Waiver of Negligence; No Subrogation ........................................................ 8
(c) Tenant's Indemnity .......................................................................... 8
11. Subordination; Attornment; Notice to Landlord's Mortgagee ............................................ 9
(a) Subordination ............................................................................... 9
(b) Attornment .................................................................................. 10
(c) Notice to Landlord's Mortgagee .............................................................. 10
12. Rules and Regulations ................................................................................ 10
13. Condemnation ......................................................................................... 10
(a) Total Taking ................................................................................ 10
(b) Partial Taking - Tenant's Rights ............................................................ 10
(c) Partial Taking - Landlord's Rights .......................................................... 10
(d) Award ....................................................................................... 10
14. Fire or Other Casualty ............................................................................... 10
(a) Repair Estimate.............................................................................. 10
(b) Landlord's and Tenant's Rights .............................................................. 11
(c) Landlord's Rights ........................................................................... 11
(d) Repair Obligation ........................................................................... 11
15. Personal Property Taxes .............................................................................. 11
16. Events of Default .................................................................................... 11
17. Remedies ............................................................................................. 12
18. Payment by Tenant; Non-Waiver ........................................................................ 12
(a) Payment by Tenant............................................................................ 12
(b) No Waiver ................................................................................... 13
19. Landlord's Lien ...................................................................................... 13
20. Surrender of Premises ................................................................................ 13
21. Holding Over ......................................................................................... 13
22. Certain Rights Reserved by Landlord .................................................................. 14
23. Substitution Space ................................................................................... 14
24. Miscellaneous ........................................................................................ 14
(a) Landlord Transfer ........................................................................... 14
23
(b) Landlord's Liability ........................................................................ 14
(c) Force Majeure ............................................................................... 14
(d) Brokerage ................................................................................... 15
(e) Estoppel Certificates........................................................................ 15
(f) Notices...................................................................................... 15
(g) Separability ................................................................................ 15
(h) Amendments; and Binding Effect .............................................................. 15
(i) Quiet Enjoyment ............................................................................. 15
(j) No Merger ................................................................................... 16
(k) No Offer .................................................................................... 16
(l) Entire Agreement ............................................................................ 16
(m) Waiver of Jury Trial ........................................................................ 16
(n) Governing Law ............................................................................... 16
(o) Joint and Several Liability ................................................................. 16
(p) Financial Reports ........................................................................... 16
(q) Landlord's Fees ............................................................................. 16
(r) General Definitions ......................................................................... 16
(s) Independent Covenants ....................................................................... 16
(t) List of Exhibits ............................................................................ 17
(u) Americans With Disabilities Act ............................................................. 17
(v) Attorneys' Fees.............................................................................. 17
25. Other Provisions ..................................................................................... 18
26. Hazardous Materials................................................................................... 18
27. Telephone and Telecommunications Services............................................................. 18
28. Guaranty ............................................................................................. 20
ADDENDUM
EXHIBIT A-1 Outline of Premises under paragraph 1.(a).
EXHIBIT A-2 Outline of Premises under paragraph 1.(b).
EXHIBIT B Depiction of Building
EXHIBIT C Legal Description of Real Property
EXHIBIT D Complex Rules and Regulations
EXHIBIT E Parking Agreement
ADDENDUM
THIS ADDENDUM, made as of the 29th day of March, 1999, is among
LAKESIDE HOLDINGS, L.L.C. a Delaware limited liability company, MULTI-LINK
TELECOMMUNICATIONS, INC., a Colorado corporation ("Tenant"), and MULTI-LINK
COMMUNICATIONS, a Colorado corporation ("Guarantor"). Landlord, Tenant and
Guarantor have executed simultaneously with this Addendum that certain Lease
(the "Lease") pertaining to certain space as depicted in Exhibit A-1, in the
building commonly known as Lakeside Plaza Building and located at 4704 Harlan
Street, Denver, Colorado 80212. In the event of any conflict between the
provisions of this Addendum and the provisions of the other portions of the
lease, the provisions of this Addendum shall control. The capitalized terms used
herein and not defined herein shall have the same meanings used in the other
portions of the Lease. Landlord and Tenant hereby agree that the Lease is
amended and supplemented as follows:
29. COMPLETION OF PREMISES. Landlord shall, at its own cost and
expense, in a good and workmanlike manner, cause the Premises to be improved and
completed in accordance with the plans and specifications attached as Exhibit
A-1, which are mutually agreed upon by Landlord and Tenant (such work being
herein called "Landlord's Work"). Landlord reserves the right, however: (i) to
make substitutions of material or components of equivalent grade and quality
when and if any specified material or component shall not be readily or
reasonably available, and (ii) to make changes necessitated by conditions met in
the course of construction, provided that Tenant's approval of any substantial
change shall first be obtained (which approval shall not be unreasonably
withheld or delayed so long as there shall be general conformity with the Final
Layout Plans). Tenant shall by notice to Landlord designate a single individual
who Tenant agrees shall be available to meet and consult with Landlord at the
Premises as Tenant's representative respecting the matters which are subject to
this Section, and who, as between Landlord and Tenant, shall have the power to
legally bind Tenant, in making requests for changes, giving approval of plans or
work, giving directions to Landlord or the like, under this Section; and any
notice or delivery given to such person personally or at his place of business
shall have the same effect as a notice or delivery given to Tenant.
If Landlord shall, for any reason (including, without limitation, fail
to complete the work, if any, required to be done by Landlord under this
Section) or fail to make available to Tenant possession of the Premises on or
before the Commencement Date or any other date, Landlord shall not be subject to
any liability for such failure nor for any failure to timely complete any work.
Under such circumstances, Tenant's obligations to pay Basic Rent and Additional
Rent shall not commence until Landlord makes possession available; and such
failure to make available to Tenant possession of the Premises on or before the
Commencement Date or any other date or to timely complete any work, shall not in
any other way affect the validity or continuance of this Lease, nor the Term or
the obligations of Tenant hereunder. Such deferral of Rent shall be Tenant's
sole and exclusive right and remedy with respect to any such failure. There
shall be no deferral of Rent, however, if any such failure is caused in whole or
part by any act or omission of Tenant, its agents, servants, employees or
contractors, which has the effect of hindering or delaying Landlord's delivery
of possession or the timely
24
completion of any work to be done by Landlord (hereinafter a "Tenant Delay")
including, without limitation, (a) any delay which is caused by changes
requested by Tenant in the work to be performed by Landlord in readying the
Premises for Tenant's occupancy, (b) any delay, caused by Tenant, in furnishing
materials or procuring labor required to be furnished or procured for the
completion of the Premises, or (c) any delay which is caused by any failure by
Tenant, without regard to any grace period applicable thereto, promptly to
furnish to Landlord any required information, approval or consent or caused by
any good faith reluctance on the part of Landlord to approve any information
required to be submitted by Tenant and approved by Landlord, or (d) any delay
which is caused by the performance of any work or activity in the Premises by
Tenant or any of its employees, agents or contractors. Tenant also shall pay to
Landlord, within 10 days after receipt of demand made from time to time, a sum
equal to any additional cost to Landlord in completing the Premises resulting
from any Tenant Delay.
30. SUBSTITUTE PREMISES.
(a) Initial Public Offering. Tenant shall use its best efforts
to complete an initial public offering ("IPO") of its common stock to
raise not less than $5,000,000.00 of additional capital. Tenant shall
keep Landlord fully apprised of the progress, status and completion of
the IPO and within two business days after the completion of the IPO
Tenant shall provide evidence reasonably satisfactory to the Landlord
of Tenant's receipt of funds generated from the IPO. Provided that
Tenant delivers the IPO Notice to Landlord on or before June 30,1999
evidencing that Tenant has received not less than $5,000,000 of
additional capital, and provided that Tenant has performed all of its
obligations under this Lease, Landlord and Tenant agree that the office
space (the "Substitute Premises") consisting of approximately 6,059
rentable square feet on the fourth floor of the Building as depicted on
the plan attached as Exhibit A-2 shall be substituted for the initial
Premises described in Section 1 above ("Initial Premises") as the
Premises hereunder pursuant to the provisions of this Section 30;
provided, however, that in the event Landlord has entered into an
agreement with a third party (not affiliated with Landlord) for the
lease of any portion of the Substitute Premises (a "Third Party Lease")
the Substitute Premises will not be substituted for the Initial
Premises and Tenant shall have the option to substitute the Alternative
Substitute Premises for the Initial Premises pursuant to the provisions
of Section 31 below.
(b) Completion of Substitute Premises.
(i) Upon the occurrence of all of the conditions set
forth in Section 30(a) for the substitution of the Substitute
Premises for the Initial Premises, Landlord shall, at its own
cost and expense, in a good and workmanlike manner, cause the
Substitute Premises to be improved and completed in accordance
with the plans and specifications attached as Exhibit A-2 (the
"Final Substitute Premises Layout Plans") which have been
mutually agreed upon by Landlord and Tenant (such work being
herein called "Landlord's Substitute Premises Work"). Landlord
reserves the right, however: (i) to make substitutions of
material or components of equivalent grade and quality when
and if any specified material or component shall not be
readily or reasonably available, and (ii) to make changes
necessitated by conditions met in the course of construction,
provided that Tenant's approval of any substantial change
shall first be obtained (which approval shall not be
unreasonably withheld or delayed so long as there shall be
general conformity with the Final Substitute Premises Layout
Plans). Tenant shall by notice to Landlord designate a single
individual who Tenant agrees shall be available to meet and
consult with Landlord at the Substitute Premises as Tenant's
representative respecting the matters which are subject to
this Section, and who, as between Landlord and Tenant, shall
have the power to legally bind Tenant, in making requests for
changes, giving approval of plans or work, giving directions
to Landlord or the like, under this Section; and any notice or
delivery given to such person personally or at his place of
business shall have the same effect as a notice or delivery
given to Tenant.
(ii) If Landlord shall, for any reason (including,
without limitation, fail to complete the work, if any,
required to be done by Landlord under this Section) or fail to
make available to Tenant possession of the Substitute
Premises, Landlord shall not be subject to any liability for
such failure nor for any failure to timely complete any work.
Under such circumstances, Tenant's obligations to pay Basic
Rent and Additional Rent for the Substitute Premises shall not
commence until Landlord makes possession available; and such
failure to make available to Tenant possession of the
Substitute Premises shall not in any other way affect the
validity or continuance of this Lease, nor the Term or the
obligations of Tenant hereunder. Such deferral of Rent
pertaining to the Substitute Premises shall be Tenant's sole
and exclusive right and remedy with respect to any such
failure. There shall be no deferral of Rent pertaining to the
Substitute Premises, however, if any such failure is caused in
whole or part by any act or omission of Tenant, its agents,
servants, employees or contractors, which has the effect of
hindering or delaying Landlord's delivery of possession or the
timely completion of any work to be done by Landlord
(hereinafter a "Tenant Substitute Premises Delay") including,
without limitation, (a) any delay which is caused by changes
requested by Tenant in the work to be performed by Landlord in
readying the Substitute Premises for Tenant's occupancy, (b)
any delay which is caused by any failure by Tenant, without
regard to any grace period applicable thereto, promptly to
furnish to Landlord any required information, approval or
consent or caused by any good faith reluctance on the part of
Landlord to approve any information required to be submitted
by Tenant and approved by Landlord, or (c) any delay which is
caused by the performance of any work or activity in the
Substitute Premises by Tenant or any of its employees, agents
or contractors. Tenant also shall pay to Landlord, within ten
days after receipt of demand made from time to time, a sum
equal to any additional cost to Landlord in completing the
Substitute Premises resulting from any Tenant Substitute
Premises Delay.
(c) Tenant agrees that on or before the ten (10) business days
to occur after the date Landlord notifies the Tenant that the
Substitute Premises are available for Tenant's occupancy, that Tenant
shall
25
completely vacate the Initial Premises in compliance with the
requirements set forth in Section 30. As of the date the Substitute
Premises are available for Tenant's occupancy (the "Substitute Premises
Commencement Date"), the Substitute Premises shall constitute the
Premises for all purposes under this Lease and subject to the terms and
conditions set forth herein subject to the following exceptions:
(i) Term. The Term of this Lease shall be extended
for a period of seventy-eight (78) months, commencing on the
Substitute Premises Commencement Date, and expiring at 5:00
p.m., on the last day of the seventy-eighth (78th) month
thereafter. If the Substitute Premises Commencement Date does
not occur on the first day of a calendar month, then the Term
shall be extended by the number of days between the Substitute
Premises Commencement Date and the first date of the next
month.
(ii) Rent.
[A] BASIC RENT. The Basic Rent for the
Substitute Premises shall be the following amounts
for the following periods of time commencing on the
Substitute Premises Commencement Date:
Time Period Annual Basic Rent Monthly Basic Rent
----------- ----------------- ------------------
Months 1- 6: $ 00.00 $ 00.00
Months 7-30: $ 101,488.25 $ 8,457.35
Months 31-42: $ 104,517.72 $ 8,709.81
Months 43-78: $ 107,547.25 $ 8,962.27
[B] ADDITIONAL RENT. Tenant's Proportionate
Share for determining Tenant's obligation to pay
Additional Rent pursuant to the provisions of Section
3(c) shall, as of the Substitute Commencement Date,
be increased to 4.655%, which is the percentage
obtained by dividing the rentable area of the
Substitute Premises, which is stipulated to be 6,059
rentable square feet by the total number of square
feet of area in the Complex, which is stipulated to
be 130,150 rentable square feet (being 95% of the
rentable area of the office space in the Complex).
(d) Refund of Basic Rent. Within thirty (30) days after the
Substitute Premises Commencement Date, Landlord shall reimburse Tenant
for the amount of any Basic Rent paid by Tenant for the Initial
Premises for that time period occurring after the Substitute Premises
Commencement Date.
31. ALTERNATE SUBSTITUTE PREMISES.
(a) In the event Tenant delivers the IPO Notice pursuant to
the provisions of Section 30 evidencing that Tenant has received not
less than $5,000,000 of additional capital and some portion of the
Substitute Premises is subject to a Third Party Lease, Landlord shall
use reasonable efforts to locate approximately 6,059 contiguous
rentable square feet within the Building. In the event the Landlord is
able to identify such space available for Tenant's use in the Building
on or before July 31, 1999, Landlord shall deliver written notice
("Notice of Availability") to Tenant together with a diagram depicting
the location and dimensions of such space (the "Alternative Substitute
Premises"). Tenant shall have the right ("Right to Substitute"), upon
and subject to all the terms and conditions set forth in this Section
to substitute the Alternative Substitute Premises for the Initial
Premises provided that within five (5) business days after Landlord
gives Tenant the Notice of Availability, Tenant, by written notice to
Landlord ("Notice of Acceptance"), elects to exercise its Right to
Substitute.
(b) Completion of Alternative Substitute Premises. In the
event Tenant exercises its Right to Substitution:
(i) Alternative Substitute Premises Information.
Landlord shall, within five (5) business days after its
receipt of the Notice of Acceptance deliver to Tenant such
plans and other information with respect to the Alternative
Substitute Premises and the Building as Tenant may reasonably
require for the preparation of layout plans for the
Alternative Substitute Premises.
(ii) Tenant's Plans. Tenant shall prepare and, not
later than thirty (30) days after delivery of Notice of
Acceptance, shall deliver to Landlord one mylar and two black
line prints of complete and final architectural working
drawings (which shall be 1/8" scale) and three copies of
specifications, prepared by an architect or space planner
approved by Landlord ("Tenant's Alternative Substitute
Premises Layout Plans") for the construction and finishing of
the Alternative Substitute Premises for Tenant's occupancy.
Tenant's Alternative Substitute Premises Layout Plans shall be
signed and sealed by an architect licensed by and registered
in the State of Colorado, shall conform to all applicable laws
and requirements of public authorities and insurance
underwriters' requirements. Tenant's Alternative Substitute
Premises Layout Plans shall be subject to Landlord's review
and written approval, which approval shall not be unreasonably
withheld, and such plans shall be deemed modified to take
account
27
26
of any changes reasonably required by Landlord. Tenant's
Alternative Substitute Premises Layout Plans as approved by
Landlord and with the aforesaid modifications, if any, are
herein called the "Final Alternative Substitute Premises
Layout Plans". Concurrently with delivery of Tenant's
Alternative Substitute Premises Layout Plans to Landlord,
Tenant shall by notice to Landlord in writing designate a
single individual who Tenant agrees shall be available to meet
and consult with Landlord at the Alternative Substitute
Premises as Tenant's representative respecting the matters
which are the subject of this Section 31 and who, as between
Landlord and Tenant, shall have the power to legally bind
Tenant, in making requests for changes, giving approval of
plans or work, giving directions to Landlord or the like,
under this Section 31; and any notice or delivery given to
such person personally or at his place of business shall have
the same effect as a notice or delivery given to Tenant.
(iii) Engineering Plans. Landlord shall direct its
engineers to prepare at Landlord's expense and, not later than
15 days after approval by Landlord of the Final Alternative
Substitute Premises Layout Plans, shall deliver to Tenant
mechanical, electrical and fire protection engineering
drawings and specifications ("Alternative Substitute Premises
Engineering Plans"), based on the Final Alternative Substitute
Premises Layout Plans (and such pertinent additional
information as shall have been submitted by Tenant with
Tenant's Alternative Substitute Premises Layout Plans or as
requested by Landlord), as may be required to complete the
Alternative Substitute Premises in accordance with the Final
Alternative Substitute Premises Layout Plans. Within seven
days after submission to Tenant by Landlord of the Alternative
Substitute Premises Engineering Plans, Tenant shall give its
written approval thereof if they are in substantial conformity
with or a direct extension of the Final Alternative Substitute
Premises Layout Plans, otherwise such approval shall not be
unreasonably withheld; however, the Alternative Substitute
Premises Engineering Plans shall be deemed to have been
approved by Tenant unless Tenant shall have notified Landlord
in writing to the contrary within seven days of their receipt
by Tenant, stating in which respects such plans fail to
conform with the Final Alternative Substitute Premises Layout
Plans. The Alternative Substitute Premises Engineering Plans
shall be deemed to have been approved by Tenant if they are
returned by Tenant with specified changes noted and such
changes are made, whether or not approval is thereafter
specifically noted on the Alternative Substitute Premises
Engineering Plans so changed.
(iv) Completion by Landlord. Landlord shall, in a
good and workmanlike manner, cause the Alternative Substitute
Premises to be improved and completed in accordance with the
Alternative Substitute Premises Final Layout Plans and the
Alternative Substitute Premises Engineering Plans (the "Tenant
Alternative Substitute Premises Work") (such plans are
hereinafter together called the "Alternative Substitute
Premises Construction Plans"). Landlord reserves the right
however: (i) to make substitutions of material or components
of equivalent grade and quality when and if any specified
material or component shall not be readily or reasonably
available, and (ii) to make changes necessitated by conditions
met in the course of construction, provided that Tenant's
approval of any substantial change shall first be obtained
(which approval shall not be unreasonably withheld or delayed
so long as there shall be general conformity with the Final
Alternative Substitute Premises Layout Plans). The Tenant
Alternative Substitute Premises Work shall be furnished,
installed and performed by Landlord for an amount (hereinafter
called the "Alternative Substitute Premises Tenant
Improvements Costs") equal to Landlord's out-of-pocket
contract or purchase price or prices to be paid by Landlord to
architects, engineers, material suppliers, subcontractors,
independent contractors and/or other sources for the material,
labor and services applied to the Tenant Alternative
Substitute Premises Work, plus a four percent (4%)
construction management fee payable to Landlord and applicable
sales taxes. Landlord agrees to obtain not less than two (2)
bids for the completion of the Tenant Alternative Substitute
Premises Work from duly licensed general contractors and shall
select, as the general contractor to complete the Tenant
Alternative Substitute Premises Work, the general contractor
who submits the lowest bid or such other general contractor
who submits a bid within two percent (2%) of the lowest bid.
(v) Payment for Tenant Work. Landlord shall provide
an allowance for the Alternative Substitute Premises Tenant
Improvements Costs in the amount of One Hundred Twenty-One
Thousand One Hundred Eighty and No/100 Dollars ($121,180.00)
("Alternative Substitute Premises Improvements Allowance").
Tenant shall pay for all Alternative Substitute Premises
Tenant Improvements Costs exceeding the Alternative Substitute
Premises Improvements Allowance within ten (10) business days
after the first date that the Alternative Substitute Premises
are available for Tenant's occupancy and Landlord has
furnished Tenant with an itemization, in reasonable detail, of
the Alternative Substitute Premises Tenant Improvements Costs;
provided, however, that Landlord may require that, before the
commencement of the Tenant Alternative Substitute Premises
Work that Tenant pay to Landlord twenty-five percent (25%) of
the amount that the estimated Alternative Substitute Premises
Tenant Improvements Costs as reasonably determined by Landlord
exceed the Alternative Substitute Premises Tenant Improvements
Allowance.
(vi) Access; Acceptance of Work. Landlord shall
afford Tenant and its employees and agents access to the
Alternative Substitute Premises at reasonable times prior to
the commencement of the Term and at Tenant's sole risk and
expense, for the purposes of inspecting and verifying
Landlord's performance of the Alternative Substitute Premises
Tenant Work. Tenant shall advise Landlord promptly of any
objection to the performance of such work.
28
27
(vii) Delivery of Possession. If Landlord shall, for
any reason (including, without limitation, failure to complete
the work, if any, required to be done by Landlord under this
Lease), fail to make available to Tenant possession of the
Alternative Substitute Premises, Landlord shall not be subject
to any liability for such failure. Under such circumstances
Tenant's obligations to pay the Basic Rent and Additional Rent
for the Alternative Substitute Premises shall not commence
until Landlord makes possession available; and such failure to
make available to Tenant possession of the Alternative
Substitute Premises shall not in any other way affect the
validity or continuance of this Lease, or the Term, or the
obligations of Tenant hereunder. Such deferral of Rent shall
be Tenant's sole and exclusive right and remedy with respect
to any such failure. There shall be no deferral of Rent,
however, if any such failure is caused in whole or part by any
act or omission of Tenant, its agents, servants, employees or
contractors, which has the effect of hindering or delaying
Landlord's delivery of possession or the timely completion of
any work to be done by Landlord (hereinafter a "Tenant
Alternative Substitute Premises Delay") including, without
limitation, (a) any delay which is caused by changes in the
work to be performed by Landlord in readying the Alternative
Substitute Premises for Tenant's occupancy, which changes are
requested by Tenant, or (b) to furnish to Landlord any
required plan, information, approval or consent within the
period of time required therefor by the terms of this Lease or
caused by any good faith reluctance on the part of Landlord to
approve any plan or other information required to be submitted
by Tenant and approved by Landlord, or (c) any delay which is
caused by the performance of any work or activity in the
Alternative Substitute Premises by Tenant or any of its
employees, agents or contractors. Tenant also shall pay to
Landlord, within ten days after receipt of demand made from
time to time, a sum equal to any additional cost to Landlord
in completing the Tenant Alternative Substitute Premises Work
resulting from any Tenant Alternative Substitute Premises
Delay.
(c) Tenant agrees that on or before the ten (10) business days
to occur after the date Landlord notifies the Tenant that the
Alternative Substitute Premises are available for Tenant's occupancy,
that Tenant shall completely vacate the Initial Premises in compliance
with the requirements set forth in Section 20. As of the date the
Alternative Substitute Premises are available for Tenant's occupancy
(the "Alternative Substitute Premises Commencement Date"), the
Alternative Substitute Premises shall constitute the Premises for all
purposes under this Lease and subject to the terms and conditions set
forth herein subject to the following exceptions:
(i) Term. The Term of this Lease shall be extended
for a period of seventy-eight (78) months, commencing on the
Alternative Substitute Premises Commencement Date, and
expiring at 5:00 p.m., on the last day of the seventy-eighth
(78th) month thereafter. If the Alternative Substitute
Premises Commencement Date does not occur on the first day of
a calendar month, then the Term shall be extended by the
number of days between the Alternative Substitute Premises
Commencement Date and the first date of the next month.
(ii) Rent.
[A] BASIC RENT. The Basic Rent for the
Alternative Substitute Premises shall be the
following amounts for the following periods of time
commencing on the Alternative Substitute Premises
Commencement Date:
Time Period Annual Basic Rent Monthly Basic Rent
----------- ----------------- ------------------
Months 1- 6: $ 00.00 $ 00.00
Months 7-30: $ 101,488.25 $ 8,457.35
Months 31-42: $ 104,517.72 $ 8,709.81
Months 43-78: $ 107,547.25 $ 8,962.27
[B] ADDITIONAL RENT. Tenant's Proportionate
Share for determining Tenant's obligation to pay
Additional Rent pursuant to the provisions of Section
3(c) shall, as of the Alternative Substitute
Commencement Date, be increased to 4.655%, which is
the percentage obtained by dividing the rentable area
of the Alternative Substitute Premises, which is
stipulated to be 6,059 rentable square feet by the
total number of square feet of area in the Complex,
which is stipulated to be 130,150 rentable square
feet (being 95% of the rentable area of the office
space in the Complex).
(d) Refund of Basic Rent. Within thirty (30) days after the
Alternative Substitute Premises Commencement Date, Landlord shall
reimburse Tenant for the amount of any Basic Rent paid by Tenant for
the Initial Premises for that time period occurring after the
Alternative Substitute Premises Commencement Date.
32. TENANT'S OPTION TO TERMINATE LEASE. Provided that neither the
Substitute Premises (pursuant to Section 30) nor the Alternative Substitute
Premises (pursuant to Section 31), are substituted for the Initial Premises and
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provided that Tenant has not exercised the Right of First Offer (defined in
Section 34) subject to the terms of this Section 32, Tenant shall have the
one-time option ("Termination Option") to terminate this Lease as of 11:59 p.m.
(Denver time) on the last day of either the ninth (9th), tenth (10th), eleventh
(11th) or twelfth (12th) complete calendar month after the occurrence of the
Commencement Date (such date is herein referred to as the "Optional Expiration
Date"), provided that Tenant first shall have delivered to Landlord not less
than sixty (60) days' prior written notice ("Termination Notice") of Tenant's
election to exercise its Termination Option, and provided that Tenant pays
Landlord the Termination Payment (defined below) at the time that Tenant
delivers the Termination Notice, time being of the essence hereunder. For
purposes of this Section 32, the "Termination Payment" shall be in an amount
equal to the sum of (a) $4,344.92 (one month of Basic Rent), plus (b) the
product of (i) .7825 (if terminated as of the end of the ninth month), .7571 (if
terminated as of the end of the tenth month), .7315 (if the Lease is terminated
as of the end of the eleventh month), .7056 (if the Lease is terminated as of
the end of the twelfth month), multiplied by (ii) an amount equal to the sum of
[A] the costs and expenses incurred by Landlord to complete the Initial Premises
for Tenant's occupancy, including, but not limited to, the costs and expenses of
completing all Tenant Work not paid for by Tenant; [B] all commissions and/or
brokerage fees incurred by Landlord in connection with the Lease; [C] legal fees
and expenses incurred by Landlord in connection with the preparation of the
Lease and any exhibits, addenda and amendments thereto; and [D] the fees and
costs incurred by Landlord in the completion of architectural work and
engineering for improvements to the Initial Premises and mechanical systems
serving the Initial Premises. Landlord and Tenant hereby agree that the amount
of additional costs Landlord will incur as a result of such termination by
Tenant is extremely difficult to ascertain and the Termination Payment set forth
above represents a fair and reasonable estimate of such costs. If Tenant shall
not have delivered the Termination Notice and Termination Payment to Landlord on
or before that date which is sixty (60) days prior to the last day of the
twelfth (12th) complete calendar month after the Commencement Date, Tenant shall
no longer have any right to terminate this Lease pursuant to this Section 32. If
Tenant timely delivers the Termination Notice and timely pays the Termination
Payment, this Lease shall expire on the Optional Expiration Date as if such date
were the Termination Date originally specified in this Lease. Notwithstanding
any other provision of this Section 32, any Termination Notice given by Tenant
shall not be effective if Tenant is in default in the performance of any of its
obligations under this Lease at the time the Termination Notice is given or at
any time thereafter through the Optional Expiration Date and in such event this
Lease shall remain in full force and effect for the full Term provided in this
Section 2 hereof.
33. TENANT'S LOAN FOR IMPROVEMENTS. In the event neither the
Substitution Premises (pursuant to Section 30) nor the Alternative Substitute
Premises (pursuant to Section 31) are substituted for the Initial Premises, and
provided Tenant waives its right to exercise the Termination Option, Landlord
agrees at Tenant's request, to loan to Tenant the sum of Ten Thousand and No/100
Dollars ($10,000.00), subject to the following terms and conditions:
(a) Tenant shall use the proceeds from the such loan only for
the payment of costs and expenses incurred by Tenant to complete
improvements to the Initial Premises, and shall furnish to Landlord
prior to the receipt of any proceeds of such loan evidence of Tenant's
incurrence of such costs and expenses;
(b) the loan shall be evidenced by a promissory note (the
"Note") in form and content reasonably required by Landlord providing
for the repayment of the principal balance in equal monthly payments
through the remainder of the initial Term of this Lease with interest
on the unpaid principal balance at the rate of 12% per annum;
(c) Tenant shall exercise its right to obtain the loan by
delivering written notice to Landlord together with evidence of
Tenant's expenditures on or before October 1, 2000 or Tenant shall be
deemed to have waived its right to obtain the loan; and
(d) any failure by Tenant to make any payment required under
the Note shall be deemed an Event of Default under this Lease.
34. RIGHT OF FIRST OFFER.
Upon and subject to all the terms and conditions set forth in this
paragraph, Landlord hereby grants to Tenant a right of first offer (the "Right
of First Offer") covering the balance of the remaining office space located upon
the fourth (4th) floor of the Building (the "Offer Space"). The Right of First
Offer shall be on the following terms and conditions:
(a) If Landlord shall desire to lease all or any portion of
the Offer Space, as evidenced by the initiation of formal negotiations
with or the issuance of a proposal to a third party by or on behalf of
Landlord covering any portion of the Offer Space, or Landlord's
acceptance of a proposal from a third party, Landlord shall first offer
to lease such part of the Offer Space (the "Designated Offer Space") to
Tenant, by giving written notice to Tenant. Such notice shall specify
the date on which the Designated Offer Space is expected to be
available for Tenant's lease (the "Scheduled Designated Offer Space
Commencement Date"). Within five (5) business days after Landlord gives
Tenant such notice, Tenant shall, by written notice to Landlord (the
"Offer Notice"), elect or decline to exercise it Right of First Offer.
If Tenant fails to deliver the Offer Notice to Landlord within such
period of five (5) business days, Tenant shall be deemed to have
declined to exercise its Right of First Offer. If Tenant declines or is
deemed to have declined to exercise its Right of First Offer, Landlord
thereafter shall have the right to lease such Designated Offer Space to
any party upon such terms and conditions and for such period or
successive period of time as Landlord, in its sole discretion, shall
determine. Notwithstanding the foregoing, Tenant shall have no right to
exercise the Right of First Offer (and, at Landlord's option, any
previous exercise of the Right of First Offer shall be null and void)
if at the time Tenant first attempts to exercise the Right of First
Offer, or at any time thereafter until the Designated Offer Space has
been added to the Premises, Tenant is in default under this Lease.
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(b) In the event Tenant exercises the Right of First Offer,
Tenant shall deliver to Landlord the Tenant's proposed layout plans and
specifications for such Designated Offer Space within ten (10) business
days after delivery of the Offer Notice. Upon the Offer Notice being
given and within such time as Landlord reasonably determines is
necessary to complete such Designated Offer Space for occupancy,
Landlord shall cause such Designated Offer Space to be improved and
completed in a manner consistent with the Tenant's layout plans and
specifications for such Designated Offer Space (the "Designated Offer
Space Improvements"). The "Commencement Date" with respect to the
Designated Offer Space ("Designated Offer Space Commencement Date")
shall be deemed to be that date which is the later of the Scheduled
Designated Offer Space Commencement Date or the first business day
after the substantial completion of the Designated Offer Space
Improvements.
(c) The Designated Offer Space shall be added to the Premises,
for all purposes, as of the Designated Offer Space Commencement Date
for the balance of the Term of this Lease and subject to and upon the
following economic terms and all of the other terms, covenants and
conditions of this Lease, except that:
(i) the annual Basic Rent which shall be at the
prevailing market rates for office space in the Building
comparable to the Premises at the time of the Designated Offer
Space Commencement Date. In no event shall the Base Rent
payable for the Designated Offer Space be less than the Basic
Rent payable under this Lease immediately prior to the
Designated Offer Space Commencement Date.
(ii) Tenant's Proportionate Share shall be increased
to a new percentage, calculated in accordance with the
provisions of the Lease by increasing the rentable area of the
Premises by the number of square feet comprising the rentable
area of such Designated Offer Space. Tenant's obligation to
pay Basic Rent and the Additional Rent calculated pursuant to
the Lease for the Designated Offer Space shall commence on the
Designated Offer Space Commencement Date. Upon addition of the
Designated Offer Space to the Premises, this Lease shall be
deemed modified in the manner set forth above without the
necessity of any further agreement or document; provided,
however, Landlord and Tenant agree to execute, acknowledge and
deliver an instrument evidencing such modification of this
Lease to be prepared by Landlord.
35. RENEWAL OPTION.
Tenant shall have the option to renew ("Renewal Option") the Term of
this Lease for one (1) additional term of five (5) years ("Renewal Term")
commencing upon the expiration of the scheduled Term of this Lease under Section
2 (and as extended pursuant to the terms of either Section 30 or Section 31
hereof), on the condition that Tenant is not in default under this Lease at the
time Tenant gives notice of exercise of its Renewal Option or at the time of
commencement of the Renewal Term. Such renewal shall be on all of the terms,
covenants and conditions of this Lease, except: (i) Tenant shall not have any
right to further renewal beyond such additional five-year term; and (ii) the
annual Basic Rent for the Premises for the renewal term shall be at the
prevailing market rates for office space in the Building comparable to the
Premises at the time the Renewal Term begins. In no event shall the Basic Rent
payable during the Renewal Term be less than the Basic Rent payable under this
Lease immediately prior to the commencement of the Renewal Term. Tenant's
Renewal Option shall be exercised only by Tenant giving Landlord written notice
of Tenant's election to renew not less than nine (9) months prior to the
expiration of the initial Term of this Lease, time being of the essence with
respect to such notice. As of the date the Renewal Term begins, this Lease shall
be deemed modified in the manner set forth above, without the necessity of any
further agreement or document; provided, however, that either party to this
Lease shall, upon request of the other party, execute, acknowledge, and deliver
an instrument evidencing such renewal and modification of this Lease.
All of the terms and provisions of the Lease, as herein amended and
supplemented, are hereby ratified and confirmed, and shall remain in full force
and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
duly executed as of the day and year first above written.
LANDLORD:
LAKESIDE HOLDINGS, L.L.C., a
Delaware limited liability company
BY: Silverbrae Holdings,
Inc., a Colorado
corporation, Agent
Date: 3/29/99 By: /s/ Garth R. D. Tait
-------------------- ---------------------------------------------
Garth R. D. Tait, President
TENANT:
MULTI-LINK TELECOMMUNICATIONS, INC., a
Colorado corporation
Date: 3/29/99 By: /s/ Nigel V. Alexander
-------------------- ---------------------------------------------
Its: Chief Executive Officer
---------------------------------------------
GUARANTOR:
MULTI-LINK COMMUNICATIONS, INC.,
a Colorado corporation
Date: 3/29/99 By: /s/ Nigel V. Alexander
-------------------- ----------------------------------------------
Its: Chief Executive Officer
--------------------------------------------
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