<PAGE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECRUITIES
EXCHANGE ACT OF 1934
For the transition period from __________ to ___________.
COMMISSION FILE NUMBER: 001-12063
ROCKY MOUNTAIN INTERNET, INC.
Exact name of Registrant as specified in its charter
Delaware 84-1322326
State or other jurisdiction of I.R.S. Employer
incorporation or organization Identification
1800 GLENARM PLACE, SUITE 1100, DENVER COLORADO 80202
Address of principal executive offices Zip Code
Registrant's telephone number, including area code: 303-672-0700
Former name, former address and former fiscal year, if changed since last
report: NA
Indicate by check mark whether the Registrant (1) has filed all annual,
quarterly and other reports required to be filed by Section 13 or 15 (d) of
the Securities Exchange Act of 1934 during the preceding 12 months (or for
such shorter periods that the Registrant was required to file such reports)
and (2) has been subject to such filing requirements for the past 90 days.
YES X NO
----- -----
As of November 1, 1996, Rocky Mountain Internet, Inc. had 4,488,000 shares of
common stock, $.001 par value, outstanding.
Transitional Small Business Disclosure Format (check one) Yes [ ] No[X]
1
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
ROCKY MOUNTAIN INTERNET, INC.
BALANCE SHEETS
(UNAUDITED)
ASSETS
December 31, September 30,
1995 1996
------------ -------------
Current Assets
Cash and Cash equivalents $274,661 $2,410,119
Investments 1,200,000
Trade receivables, less allowance for
doubtful accounts 1995, $5,700; 1996 $46,632 90,338 399,765
Inventories 12,185 112,044
Other 5,153 157,121
-------- ----------
Total current assets $382,337 $4,279,048
-------- ----------
Property and equipment
Computer equipment 560,534 1,174,404
Computer software 36,806 68,455
Furniture, fixtures, and office equipment 15,101 44,001
-------- ----------
612,441 1,286,860
Less accumulated depreciation and amortization 132,812 317,279
-------- ----------
479,629 969,581
-------- ----------
Deposits 62,637 82,026
-------- ----------
$924,603 $5,330,656
-------- ----------
-------- ----------
See Notes to Financial Statements
2
<PAGE>
ROCKY MOUNTAIN INTERNET, INC.
BALANCE SHEETS
(UNAUDITED)
LIABILITIES AND STOCKHOLDERS' EQUITY
December 31, September 30,
1995 1996
------------ -------------
Current liabilities
Note payable $ 19,419 $ 88,842
Current maturities of long-term debt and
obligations under capital leases 72,675 171,893
Accounts payable 192,985 800,388
Deferred revenue 169,645 186,091
Accrued payroll and related taxes 83,528 239,877
Other accrued expense 30,950 170,250
--------- -----------
Total current liabilities 569,202 1,657,053
Long-term debt and obligations under
capital leases, less current maturities 524,437 901,732
--------- -----------
Stockholders equity
Preferred stock, $.001 par value; authorized
1,000,000 shares; issued and outstanding
1995 no shares and 1996 250,000 250
Common stock, $.001 par value; authorized
10,000,000 shares; issued and outstanding
1995 1,868,000 1996 3,233,000. 1,868 3,233
Additional paid-in capital 28,847 4,226,860
Accumulated deficit (199,751) (1,458,472)
--------- -----------
(169,036) 2,771,871
--------- -----------
$ 924,603 $ 5,330,656
--------- -----------
--------- -----------
See Notes to Financial Statements
3
<PAGE>
ROCKY MOUNTAIN INTERNET, INC.
STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
Three Months Ended Nine Months Ended
September 30 September 30
----------------------- -----------------------
1995 1996 1995 1996
-------- --------- -------- -----------
<S> <C> <C> <C> <C>
Revenue
Internet access and services $274,221 $ 705,785 $681,097 $ 1,807,933
Equipment sales 44,235 215,252 113,803 316,469
-------- --------- -------- -----------
318,455 921,037 794,900 2,124,401
-------- --------- -------- -----------
Cost of revenue earned
Internet access and services 52,699 191,082 134,515 402,408
Equipment sales 35,510 197,548 100,473 282,726
-------- --------- -------- -----------
88,209 388,629 234,988 685,134
-------- --------- -------- -----------
Gross Profit 230,246 532,407 559,913 1,439,268
Selling, general and administrative
expenses 218,946 1,090,606 542,299 2,616,387
-------- --------- -------- -----------
Operating (loss) income 11,300 (558,199) 17,614 (1,177,120)
Other income (expense)
Interest expense (4,031) (49,181) (14,961) (116,750)
Interest income 0 10,079 0 12,892
Finance charges 1,644 9,087 5,035 20,202
Other income 63 312 4,906 2,054
-------- --------- -------- -----------
(2,324) (29,703) (5,020) (81,602)
-------- --------- -------- -----------
Net (loss) income before income
taxes 8,975 (587,901) 12,594 (1,258,721)
Income tax expense
Net (loss) income $ 8,975 $(587,901) $ 12,594 $(1,258,721)
-------- --------- -------- -----------
-------- --------- -------- -----------
Primary and fully diluted loss per share
Net earnings (loss) per share $ 0.005 $ (0.152) $ 0.007 $ (0.348)
-------- --------- -------- -----------
-------- --------- -------- -----------
</TABLE>
See Notes to Financial Statements
4
<PAGE>
ROCKY MOUNTAIN INTERNET, INC.
STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
Nine Months Ended
September 30
-------------------------
1995 1996
---------- -----------
<S> <C> <C>
Cash Flows from Operating Activities
Net (loss) income $ 12,594 $(1,258,721)
Adjustments to reconcile net (loss) income
to net cash provided by (used in)
operating activities
Depreciation 30,251 62,514
Amortization of computer software and
equipment obtained by capital leases 27,663 121,954
Changes in assets and liabilities:
Increase in trade receivables (36,465) (309,427)
Increase in inventories (9,171) (99,859)
Increase in other current assets (8,322) (151,968)
Increase in accounts payable 50,664 607,403
Increase in deferred revenue 25,746 16,446
Increase in accrued payroll and related taxes 34,854 156,349
Increase in other accrued expenses 9,821 139,300
--------- ---------
Net cash provided by (used
in) operating activites 137,635 (716,010)
---------- -----------
Cash Flows from Investing Activities
Investment in Repurchase Agreements
US Treasury Notes (1,200,000)
Purchase of property and equipment (125,190) (150,405)
(Additions) deletions to deposits (3,882) (19,389)
---------- -----------
(129,072) (1,369,794)
---------- -----------
Cash Flows from Financing Activities
Proceeds from sale of common stock 0 3,793,628
Proceeds from notes payable 28,429 88,842
Proceeds from debentures / long-term debt 117,000
Proceeds from sale of preferred stock 406,000
Payments on notes payable (4,225) (19,419)
Payments on long-term debt and obligations
under capital leases (29,601) (164,789)
---------- -----------
Net cash provided by (used in) financing
activities (5,397) 4,221,262
---------- -----------
Increase (decrease) in cash and cash
equivalents 3,166 2,135,458
Cash and cash equivalents
Beginning 36,470 274,661
---------- -----------
Ending $ 39,636 $ 2,410,119
---------- -----------
---------- -----------
</TABLE>
See Notes to Financial Statements
5
<PAGE>
NOTES TO FINANCIAL STATEMENTS
NOTE 1. - REPRESENTATION OF MANAGEMENT
The interim financial data is unaudited; however, in the opinion of
management, the interim data include all adjustments, consisting only of normal
recurring adjustments necessary for a fair statement on the results for the
interim periods. The financial statements included herein have been prepared by
the Company pursuant to the rules and regulations of the Securities and Exchange
Commission. Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted accounting
principals have been condensed or omitted pursuant to such rules and
regulations, although the Company believes that the disclosures included herein
are adequate to make the information presented not misleading.
NOTE 2. - INITIAL PUBLIC OFFERING
The Company completed its initial public offering of 1,365,000 units
effective September 5, 1996, at an initial price of $3.50 per unit. A unit is
comprised on one common share and one warrant to purchase one share of common
stock. The warrants are exercisable at a price of 125% of the unit offering
price for a 23 month period commencing 13 months from the effective date of the
prospectus. Under certain circumstances the Company may redeem the warrants at
$0.25 per warrant. The Company has sold the underwriter warrants to purchase
136,500 units for $100. The exercise price of the underwriter's warrant is to
be 120% of the unit offering price per unit and 150% of the public warrant
exercise price per warrant. The underwriter's warrant will be exercisable for a
48 month period commencing one year from the date of the prospectus.
NOTE 3. - INVESTMENT
The Company has invested in Master Repurchase Agreements of US Treasury
Notes as follows;
Description Maturity Date Investment
Repurchase Number 96-1 Sept. 10, 1997 $ 300,000
Repurchase Number 96-2 Mar. 10, 1997 $ 500,000
Repurchase Number 96-3 Dec. 10, 1996 $ 400,000
Total $ 1,200,000
NOTE 4. - LINE OF CREDIT
The Company has established a line of credit for $500,000 effective
September 18, 1996 with a maturity of September 10, 1997. The line of credit is
secured by pledge of a $300,000 Master Repurchase Agreement of a US Treasury
Note held with the lender.
NOTE 5 - DENVER OFFICE LEASE
As part of a sixty-four month lease commitment for Denver office space, the
company has caused to be issued a letter of credit in the amount of $250,000 to
act as security for the landlord. The letter of credit is reduced during the
term of the lease.
6
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
The Company completed an initial public stock offering effective September 5,
1996. 1,356,000 units were issued at a price of $3.50 per unit. Refer to
Note 2 of the Financial Statements for additional information.
The Company is implementing an operating plan calling for growth through
expansion of existing business categories, acquisitions of Internet providers
that complement existing business, expansion of capabilities through
implementation of a frame relay switch backbone, expanding World Wide Web
page hosting and creation, and additional opportunities that fit within the
Internet business.
Effective November 1, 1996, the Company acquired the assets of an Internet
Service provider with a focus on Web production and hosting located in
Colorado Springs. The purchase price was $65,000 cash plus 30,000 shares of
common stock. The acquisition included all customer accounts plus computer
hardware and furnishings.
The Company has entered into a lease agreement for office facilities in
Denver for 19,745 square feet to house the Executive, Sales, Finance, and
Administrative functions. The lease term is for 64 months with monthly
payments of $15,835.63 for months one to eight and $31,669.63 for months nine
to sixty-four. In addition to the departments listed above, the facility will
also become the primary data center for backbone routers and data servers.
Refer to Note 5 of the financial statements for additional information.
A lease line of credit has been established for $2,000,000 for the purpose of
acquiring telecommunication data switches and related equipment to establish
a frame relay backbone in the Denver, Boulder, and Colorado Springs areas.
The switches are scheduled for deployment by the end of 1996. Additionally,
a strategic relationship has been established with an alternative telephone
access carrier to interconnect these switches over an high speed network. The
Company will be able to provide its customers increased reliability, faster
installation, and greater bandwidth with the installation of this frame relay
switch network.
RESULTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 1996 AND 1995
The Company's revenues grew 189% for the three months ended September 30,
1996 over the same period in 1995. Listed below is a breakdown of the
revenue billing categories. The Company's dedicated access and Web services
have experienced strong sales growth resulting from the Company's strategy of
providing a consultative and service oriented relationship to business users
of the Internet. The Other category experienced growth in equipment sales
provided as an accomodation to the Company's customers and in consulting
services.
Three Months Ended
September 30
--------------------------------------
1995 1996 % Change
--------- ---------- -----------
REVENUE
Dial-Up Service $ 191,067 $ 355,867 86%
Dedicated Access Service 75,024 191,615 155%
Web Services 6,880 107,850 1,468%
Other 45,484 265,705 484%
7
<PAGE>
--------- ---------- -----
Total $ 318,455 $ 921,037 189%
--------- ---------- -----
--------- ---------- -----
Gross margin consists of total revenue less the cost of delivering services
and equipment. The gross margin was 57.8% for the three months ended
September 30, 1996 and 72.3% for the same period in 1995. The reduction in
gross margin resulted from a large increase in equipment sales during the
1996 third quarter. Equipment is provided as an accommodation to customers,
allowing a turnkey solution. The Company is currently negotiating some value
added reseller agreements in order to increase margins in this area.
Selling, general and admiistrative expenses increased by 398% from the three
months ended September 30, 1996 over the same period of 1995. This increase
resulted from the overall expansion of the business and is in keeping with
the strategy of building an organization capable of handling rapid growth and
expansion. Salaries and related expenses increased from $112,667 to $663,500
or 489% from the three month period in 1996 over 1995. Personnel were added
in all areas to expand the Company's sales efforts, technical support, and
administrative capabilities. Advertising, trade shows, and marketing
expenses increased from $7,589 to $46,593 or 514% for third quarter 1996 over
third quarter 1995, reflecting increased activities in marketing.
NINE MONTHS ENDED SEPTEMBER 30, 1996 AND 1995
The Company's revenues grew 167% for the nine months ended September 30, 1996
over the same period in 1995. Listed below is a breakdown of the revenue
billing categories. The Company's stategy to focus on commercial business is
showing success as the dedicated access and web services area have
experienced strong sales growth. The Other category experienced growth due
to equipment sales provided as an accommodation to our customers and
consulting services.
Nine Months Ended
September 30
------------------------------------
1995 1996 % Change
--------- ---------- --------
Dial-Up Service $ 470,540 $1,048,792 123%
Dedicated Access Service 188,065 440,917 134%
Web Services 12,665 254,945 1,913%
Other 123,630 379,748 207%
--------- ---------- ------
$ 794,900 $2,124,401 167%
--------- ---------- ------
--------- ---------- ------
The gross margin was 67.7% for the nine months ended September 30, 1996 and
80.25% for the same period in 1995. The margin reduction is due to an
increase of low margin equipment sales. The access and web revenues gross
margin remain strong with a 77.7% and 80.3% for the nine months ending
September 30, 1996 and 1995, respectively, net of equipment sales and
equipment cost of sales.
Selling, general and administrative expenses increased by 382% from the nine
months ended September 30, 1996 over the same period of 1995. This increase
resulted from the overall expansion of the business and is in keeping with
the strategy of building an organization capable of handling rapid growth and
expansion. Salaries and related expenses increrased from $507,545 to
$1,576,443 or 210% from the first nine months in 1996 over 1995. Personnel
were added in all areas to expand the Company's sales efforts, technical
support, and administrative capabilities. Advertising, trade shows, and
marketing expenses increased from $15,151 to $153,442 or 913% for the first nine
months of 1996 over the same period in 1995, reflecting increased activities
in marketing.
Interest expense increased 137% for the nine month period ended September 30,
1996 over the same period of 1995. This increase principally resulted from
interest expense of $43,725 on Debentures plus increases of interest on
capital leases. The Debentures were converted in October 1996 to common
stock.
8
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
The initial public offering completed on September 5, 1996, provided the
funds for the Company to execute its growth plans for at least the next year
from that date. Operating cash flow and earnings for the remainder of 1996
and the first half of 1997 are projected to be negative. The Company
continues to build infrastructure and human resources to position itself to
be a prominent Internet provider in the regional market. The Company will
utilize lease financing, as available, for capital acquisitions, business
acquisitions will be funded utilizing projected cash flows from the
acquisition, as well as the public offering proceeds to provide the necessary
liquidity to implement the operating plan. The Company believes its capital
resources are sufficient to meets its anticipated needs at least through the
second quarter 1997. The Company's ability to continue operations beyond
that date depends on its ability to generate cash flow from operations, which
it has not done to date. If the Company is not successful in generating cash
flow from operations, it will be required to seek additional funds through
equity or debt financing. There is no assurance that additional capital
resources will be available to the Company if and when required, or on the
terms acceptable to the Company if available. The absence of such financing
would have a material adverse effect on the Company's business, including a
possible reduction or cessation of operations.
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
On September 6, 1996, a complaint was filed in Denver District Court
naming Rocky Mountain Internet, Inc. (the "Company") and the Colorado Rockies
Baseball Club, Ltd. as defendants. The plaintiffs, Robert Lewis and
Storefronts in Cyberspace, a Colorado limited liability company, allege that
the Company breached an oral agreement to provide Web page services and
negligently failed to maintain the plaintiffs' Web sites. The relief sought
by the plaintiffs with respect to the Company is monetary damages in an
aggregate amount of $100,000. The Company's management believes the suit is
without merit and intends to vigorously defend against the allegations
contained in it.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits required by Item 601 of Regulation S-B
Exhibit
Number Description of Exhibits
3.1 Certificate of Incorporation *
1.2 Bylaws of Rocky Mountain Internet, Inc. *
4.1 Form of Warrant Agreement dated ,1996 between Rocky Mountain
Internet, Inc. and American Securities Transfer, Inc. *
4.2 Form of Subordinated Convertible Promissory Note *
4.3 Form of Lock-Up Agreement for Shareholders *
4.4 Form of Lock-Up Agreement for Preferred Stockholders *
4.5 Form of Lock-Up Agreement for Debenture Holders *
4.6 Form of Stock Certificate *
4.7 Form of Warrant Certificate *
10.1 Agreement of Lease between Denver-Stellar Associates Limited
Partnership, Landlord and Rocky Mountain Internet, Inc., Tenant
10.2 Asset Purchase Agreement - Acquisition of Compunerd, Inc.
10.3 Confirmation of $2.0 million lease line of credit
10.4 Agreement between MCI and Rocky Mountain Internet, Inc. governing
the provision of professional information system development
services for the design and development of the MCI internal
Intranet project referred to as Electronic Advice.
11.1 Statement re: computation of per share earnings
27.1 Financial Data Schedule
* Incorporated by reference from the Company's registration
statement on Form SB-2 filed with the Commission on August 30,
1996, registration number 333-05040C.
(b) Form 8-A dated August 14, 1996; Registration form pursuant to Section
12(g) of the Securities Exchange Act of 1934 relating to 1,250,000
Units, each consisting of one share of Common Stock and one Warrant.
In accordance with the requirements of the Exchange Act, the registrant
caused this report to be signed on its behalf by the undersigned, hereunto
duly authorized.
Date: November 14, 1996 By: /s/ D. KIRK ROBERTS
-------------------------------------
D. Kirk Roberts
Chief Financial Offier
/s/ ROY J. DIMOFF
-------------------------------------
Roy J. Dimoff
President and Chief Executive Officer
<PAGE>
DENVER PLACE PLAZA TOWER
AGREEMENT OF LEASE
BETWEEN
DENVER-STELLAR ASSOCIATES LIMITED PARTNERSHIP, LANDLORD
AND
ROCKY MOUNTAIN INTERNET, INC., TENANT
<PAGE>
DENVER PLACE PLAZA TOWER
AGREEMENT OF LEASE
BETWEEN
DENVER-STELLAR ASSOCIATES LIMITED PARTNERSIHIP, LANDLORD
ROCKY MOUNTAIN INTERNET, INC., TENANT
TABLE OF CONTENTS
Page
----
1. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Base Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Completion of Improvements. . . . . . . . . . . . . . . . . . . . . . 1
4. Additional Rent . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(a) Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(b) Expense Adjustment . . . . . . . . . . . . . . . . . . . . . . . 4
(c) Adjustment For Services Not Rendered . . . . . . . . . . . . . . 4
(d) Tax Adjustment . . . . . . . . . . . . . . . . . . . . . . . . . 4
(e) Partial Year . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(f) Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(g) Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . 5
(h) Tenant Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(i) Delay in Computation . . . . . . . . . . . . . . . . . . . . . . 6
5. Use of Premises . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6. Condition of Premises . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(a) List of Services . . . . . . . . . . . . . . . . . . . . . . . . 7
(b) Billing for Electricity. . . . . . . . . . . . . . . . . . . . . 8
(i) Landlord's Payment for Normal Service . . . . . . . . . .. 8
(ii) Measured Usage. . . . . . . . . . . . . . . . . . . . . .. 8
(iii) Estimated Usage . . . . . . . . . . . . . . . . . . . . .. 9
(c) Interruption of Services . . . . . . . . . . . . . . . . . . . . 9
(d) Landlord's Maintenance Obligations . . . . . . . . . . . . . . . 9
8. Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
10. Insurance and Waiver of Subrogation . . . . . . . . . . . . . . . . . 11
11. Fire or Casualty. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12. Waiver of Claims - Indemnification. . . . . . . . . . . . . . . . . . 12
13. Nonwaiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
14. Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
15. Assignment and Subletting . . . . . . . . . . . . . . . . . . . . . . 14
16. Holdover. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17. Estoppel Certificate . . . . . . . . . . . . . . . . . . . . . . . . 16
18. Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
19. Certain Rights Reserved by Landlord . . . . . . . . . . . . . . . . . 17
20. Rules and Regulations . . . . . . . . . . . . . . . . . . . . . . . . 18
21. Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
22. Expenses of Enforcement . . . . . . . . . . . . . . . . . . . . . . . 21
23. Covenant of Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . 21
24. Security Deposit. . . . . . . . . . . . . . . . . . . . . . . . . . . 21
25. Real Estate Broker. . . . . . . . . . . . . . . . . . . . . . . . . . 22
26. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(a) Rights Cumulative. . . . . . . . . . . . . . . . . . . . . . . . 22
(b) Captions and Usage . . . . . . . . . . . . . . . . . . . . . . . 22
(c) Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . 23
(d) Lease Contains All Terms . . . . . . . . . . . . . . . . . . . . 23
(e) Submission of Lease. . . . . . . . . . . . . . . . . . . . . . . 23
(f) No Air Rights. . . . . . . . . . . . . . . . . . . . . . . . . . 23
<PAGE>
(g) Modification of Lease. . . . . . . . . . . . . . . . . . . . . . 23
(h) Substitution of Other Premises . . . . . . . . . . . . . . . . . 23
(i) Transfer of Landlord's Interest. . . . . . . . . . . . . . . . . 23
(j) Recording; Short Form Memo . . . . . . . . . . . . . . . . . . . 23
(k) Covenants and Conditions . . . . . . . . . . . . . . . . . . . . 24
(l) Application of Payments. . . . . . . . . . . . . . . . . . . . . 24
(m) Security Interest in Tenant's Personal Property and Additional
Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(n) Governing Law; Partial Invalidity. . . . . . . . . . . . . . . . 25
(o) Hazardous Materials. . . . . . . . . . . . . . . . . . . . . . . 25
27. Telephone and Telecommunications Service. . . . . . . . . . . . . . . 26
28. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
29. Time is of the Essence. . . . . . . . . . . . . . . . . . . . . . . . 28
Addendum
Exhibit A Plan
Exhibit B Rules and Regulations
Exhibit C Lease Term Agreement
Exhibit D Parking Agreement
Exhibit E Security Agreement
<PAGE>
OFFICE LEASE
DENVER PLACE PLAZA TOWER
DENVER, COLORADO
AGREEMENT OF LEASE made as of the 17th day of September, 1996 (hereinafter
referred to as the "Lease") between DENVER-STELLAR ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership (hereinafter referred to as
"Landlord") and ROCKY MOUNTAIN INTERNET, INC., a Delaware corporation whose
present address is 1800 Glenarm Place, Suite 510, Denver, Colorado 80202
(hereinafter referred to as "Tenant").
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby accepts from Landlord,
the premises (hereinafter referred to as the "Premises") containing
approximately 19,489 square feet of rentable area and designated on the plan
attached hereto as Exhibit "A" and further described as Suite 3000 in the
building known as Denver Place Plaza Tower (hereinafter referred to as the
"Building") located at 1099 18th Street, Denver, Colorado, 80202, subject to the
covenants, terms, provisions and conditions of this Lease. The Building, the
land upon which it is situated, all surrounding improvements, any garage or
other related improvements and all common areas appurtenant to, associated with
or servicing the Building are hereinafter called the "Real Property" or the
"Property".
In consideration thereof, Landlord and Tenant covenant and agree as follows:
1. TERM. The term of this Lease (the "Term") shall commence on that date
(the "Commencement Date") which is the later of October 15, 1996 (the "Scheduled
Commencement Date") or one (1) month from the date the Premises are Ready for
Occupancy (hereinafter defined) and, unless sooner terminated as provided
herein, shall end, absolutely and without the need for notice from either party
to the other, on February 14, 2002 (the "Termination Date") subject to extension
pursuant to the provisions of Paragraph 31 below.
2. BASE RENT. Subject to adjustment as herein provided, the Base Rent to
be paid hereunder shall be $190,027.56 per annum which shall be paid in advance
on or before the first day of each calendar month for months one through eight
of the Term on 9,745 square feet of rentable area, in equal monthly
installments of $15,835.63, and $380,035.56 per annum which shall be paid in
advance on or before the first day of each calendar month for months nine
through sixty-four of the Term on 19,489 square feet of rentable area, in equal
monthly installments of $31,669.63, provided, however, that Tenant shall pay the
first full monthly installment in the amount of $15,835.63 at the time of
execution of this Lease. If the Term commences other than on the first day of a
month or ends other than on the last day of a month, the Base Rent for such
month shall be prorated. The Base Rent for the portion of the month in which
the Term commences shall be paid on the first day of the first full month of the
Term.
3. COMPLETION OF IMPROVEMENTS. INTENTIONALLY DELETED
4. ADDITIONAL RENT. In addition to paying the Base Rent specified in
Paragraph 2 hereof, Tenant shall pay as "additional rent", the amounts
determined as hereinafter set forth in this Paragraph 4. The Base Rent and
additional rent are sometimes herein collectively referred to as the "rent".
All amounts due under this lease as additional rent shall be payable in the same
manner and at the same place as the Base Rent.
(a) DEFINITIONS. As used in this Paragraph 4, the terms:
(i) "Operating Expense Base Amount" shall mean $4.99 per
rentable square foot per annum.
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(ii) "Tax Base Amount" shall mean $ 1. 11 per rentable square foot per
annum.
(iii) "Calendar Year" shall mean each calendar year in which any part
of the Term falls, through and including the year in which the Term expires.
(iv) "Tenant's Proportionate Share" shall mean 1.9% being the
percentage calculated by dividing 9,745 square feet, the rentable area of the,
Premises for months one through eight of the Term, and 3.8% being the percentage
calculated by dividing 19,489 square feet, the rentable area of the Premises for
months nine through sixty-four of the Term provided at the beginning of this
Lease, by 512,995 square feet (being 95 % of the rentable area of the office
space in the Building). The rentable area of the Premises has been calculated
according to a method pursuant to which a portion of the common areas has been
deemed included in the Premises.
(v) "Taxes" for any Calendar Year shall mean the Building's
Proportionate Tax Share of all real estate taxes and assessments, special or
otherwise, levied or assessed upon that parcel of land known as Lots 1
through 32 inclusive and adjacent vacated alley, block 95, East Denver
Subdivision (the "Land") and/or the building during such Calendar Year;
provided, however, that if Landlord subdivides the Land so that the Building
is located on its own tax lot (i.e., there are no other buildings on such tax
lot), then (1) such separate tax lot shall be referred to as the "Building
Tax Lot", and (2) for each year that the Building Tax Lot is taxed separately
from the remainder of the Land, the term "Taxes" shall mean all real estate
taxes and assessments, special or otherwise, levied or assessed upon the
Building Tax Lot and/or the Building during such Calendar Year. For purposes
of this subparagraph "Buildings Proportionate Tax Share" for any Calendar
Year shall mean the fraction the numerator of which is equal to the assessed
valuation for the Building only for such Calendar Year and the denominator of
which is equal to the sum of the assessed valuations for all buildings and
improvements on the Land (including the Building) for such Calendar Year.
Should the State of Colorado, or any political subdivision thereof, or any
other governmental authority, impose a tax, assessment, charge or fee, which
Landlord shall be required to pay, wholly or partially in substitution of any
of the above Taxes, all such taxes, assessments fees or charges shall be
deemed to constitute Taxes hereunder but shall be computed as if the Real
Property and any other shared use real property referred to in this
subparagraph was the only real property of Landlord. "Taxes" Shall also
include all fees and costs, including reasonable attorneys' fees, appraisals
and consultants' fees, incurred by Landlord in seeking to obtain a reduction
of, or a limit on, any increase in any Taxes (regardless of whether any
reduction or limitation is obtained). In the event that the Real Property
shall be for any taxes or assessments assessed under the same assessment as
other real property, the amount of such taxes or assessment to be included
within Taxes shall be such portion thereof as Landlord fairly and equitably
shall deem attributable thereto. Notwithstanding anything in this paragraph
to the contrary, Taxes shall specifically exclude inheritance taxes, gift
taxes, transfer taxes, franchise taxes, excise taxes, income taxes, and
profit taxes.
(vi) "Operating Expenses" shall mean all expenses, costs and
disbursements (other than Taxes) of every kind and nature paid or incurred by or
on behalf of Landlord in connection with the ownership, management, operation,
maintenance and repair of the Property (and, as reasonably allocated by
Landlord, those paid or incurred in connection with the ownership, operation,
maintenance, management and repair of any garage or other improvements the use
of which is shared by the Building and one or more other buildings) except the
following:
[A] Costs of alterations of any tenant's premises;
[B] Principal or interest payments on loans secured by mortgages
or trust deeds on the Real Property;
[C] Costs of capital improvements, except that Operating Expenses
shall include the costs as amortized over such number of years as Landlord may
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reasonably determine, with interest at the rate of 12% per annum on the
unamortized amount, of any capital improvements which, (1) in Landlord's
reasonable opinion, will have the effect of reducing any component cost included
within Operating Expenses, (2) are made or installed to assure compliance with
all governmental rules and regulations applicable from time to time, or (3)
under generally applied real estate accounting practices may be expensed or
treated as deferred expenses (and the amortization and interest so determined
for each Calendar Year shall be included in Operating Expenses for that Calendar
Year);
[D] Leasing commissions for space in the Building.
[E] Any expense for which Landlord is compensated through
proceeds of insurance;
[F] Fines and penalties which are not attributable to Tenant;
[G] All legal fees, space planner fees, and advertising expenses
incurred with regard to leasing the Building;
[H] All promotional expenses except the reasonable costs incurred
(x) for distributing a newsletter to tenants and occupants of the Complex (as
hereinafter defined), (y) for one (1) holiday party per calendar year that is
held for all of the tenants and occupants of the Complex and (z) for one (1)
health fair per calendar year that is held for all tenants and occupants of the
Complex;
[I] Expenses for correcting structural defects except that
conditions resulting from ordinary wear and tear shall not be deemed defects for
purposes of this subparagraph;
[J] Costs or expenses of or any special services or equipment
rendered or incurred for a tenant if the same are not generally rendered to
other tenants of the Building;
[K] The costs of repairs or replacements caused by the exercise
of the right of eminent domain,
[L] Costs for which Landlord receives reimbursement from others;
[M] Costs of decorating, redecorating, or special cleaning or
other services not provided on a regular basis to tenants of the Building, which
is provided to another tenant of the Building;
[N] Any expense, other than property management fees,
representing an amount paid to a related corporation, entity, or person which is
in excess of the amount which would be paid in the absence of such relationship
(provided, however, that Tenant acknowledges that Operating Expenses for any
calendar year may include a management fee equal to five percent (5%) of the
gross revenue collected during such calendar year for the Building and the
parking garage located upon the Real Property ("Parking Garage"), even though
such fee may exceed the management fee which would be incurred on a fair market
basis if Landlord and the managing agent were not affiliated); and
[O] Property management fees in excess of the greater of (y) five
percent (5 %) of the gross revenue collected during any calendar year for the
Building and the Parking Garage and (z) the then prevailing fair market
management fees payable in the central business district of Denver, Colorado for
first class office buildings similar to the Building ("Comparable Buildings")
under management contracts similar to the then current management contract for
the Building.
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(b) EXPENSE ADJUSTMENT.
(i) Tenant shall pay as additional rent for each Calendar Year, that
amount ("Expense Adjustment Amount") which is Tenant's Proportionate Share of
the amount by which the Operating Expenses incurred with respect to such
Calendar Year exceed the Operating Expense Base Amount; provided, however, that
in determining the amount of Operating Expenses for each Calendar Year, if less
than 95 % of the rentable office area of the Building shall have been occupied
at any time during such Calendar Year, Operating Expenses shall be deemed for
such Calendar Year to be in the amount reasonably determined by Landlord to be
equal to that amount of like expenses which normally would be expected to be
incurred had such Occupancy been 95% throughout such Calendar Year.
(ii) The Expense Adjustment Amount with respect to each Calendar Year
shall be paid in monthly installments, in advance on the first day of each
calendar month during the course of such year, in amounts estimated from time to
time by Landlord and communicated by written notice to Tenant. Landlord shall
cause to be kept books and records showing Operating Expenses in accordance with
generally accepted accounting principles. Following the close of each Calendar
Year, Landlord shall cause the amount of the Expense Adjustment Amount for such
Calendar Year to be computed based on Operating Expenses for such Calendar Year,
and Landlord shall deliver to Tenant a statement of such amount; thereupon
Tenant shall pay any deficiency as shown by such statement to Landlord within 30
days after receipt of such statement. If the total of the estimated monthly
installments paid by Tenant during any Calendar Year exceed the actual Expense
Adjustment Amount due from Tenant for such Calendar Year, then, at Landlord's
option, such excess shall be either credited against payments next due hereunder
or refunded by Landlord, provided Tenant is not then in default hereunder.
(c) ADJUSTMENT FOR SERVICES NOT RENDERED. If Landlord shall not be
furnishing any particular work or service (the cost of which, if furnished by
Landlord would be included in Operating Expenses) to a tenant who undertakes to
itself perform or obtain such work or service in lieu of the furnishing thereof
by Landlord, Operating Expenses shall be deemed for purposes of this Paragraph 4
to be increased by an amount equal to the additional Operating Expenses, as
reasonably deterimined by Landlord, which would have been incurred during such
period if Landlord had at its own expense furnished such work or service to
such tenant.
(d) TAX ADJUSTMENT. Tenant shall pay as additional rent for each Calendar
Year that amount (the "Tax Adjustment Amount") which is Tenant's Proportionate
Share of the amount by which the Taxes incurred with respect to such Calendar
Year exceed the Tax Base Amount. The Tax Adjustment Amount with respect to each
Calendar Year shall be paid in monthly installments, in an amount estimated from
time to time by Landlord and communicated by written notice to Tenant.
Following the close of each Calendar Year, Landlord shall cause the amount of
the Tax Adjustment Amount for such Calendar Year to be computed based on Taxes
for such Calendar Year and Landlord shall deliver to Tenant a statement of such
amount and Tenant shall pay any deficiency as shown by such statement to
Landlord within 30 days after receipt of such statement. If the total of the
estimated monthly installments paid by Tenant during any Calendar Year exceeds
the actual Tax Adjustment Amount due from Tenant for such Calendar Year, then,
at Landlord's option such excess shall be either credited against payments next
due hereunder or refunded by Landlord, provided Tenant is not then in default
hereunder. The amount of any refund of Taxes received by Landlord shall be
credited against Taxes for the year in which such refund is received. In
determining the amount of Taxes for any year, the amount of special assessments
to be included shall be limited to the amount of the installment (plus any
interest payable thereon) of such special assessment required to be paid during
such year as if the Landlord had elected to have such special assessment paid
over the maximum period of time permitted by law; if the authority to whom such
assessment is to be paid shall not permit such assessment to be paid in
installments, the amount of such assessment shall be treated as being amortized
over such number of calendar years, beginning with the Calendar Year in which
the assessment is payable, as Landlord shall reasonably determine, with interest
at the rate of 15% per annum on the unamortized amount, and such amortization
and interest for each Calendar Year shall be included in Taxes for that Calendar
Year.
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(e) PARTIAL YEAR. If only part of any Calendar Year shall fall
within the Term, the amounts computed as additional rent, with respect to such
Calendar Year under the foregoing provisions of this Paragraph 4 shall be
prorated in proportion to the portion of such Calendar Year falling within the
Term, but the expiration or termination of this Lease prior to the end of such
Calendar Year shall not impair the Tenant's obligation hereunder to pay such
prorated portion of such additional rent with respect to that portion of such
year falling within the Term.
(f) DISPUTES. Any statement furnished to Tenant by Landlord under
the provisions of this Paragraph 4 shall constitute a final determination as
between Landlord and Tenant as to the rent set forth therein due from Tenant for
the period represented thereby, unless Tenant, within 60 days after such
statement is furnished, shall give a notice to Landlord that it disputes the
correctness thereof, specifying in detail the basis for such assertion. Pending
resolution of such dispute, Tenant shall pay all disputed amounts in accordance
with the statement furnished by Landlord. Landlord agrees, upon prior written
request, during normal business hours to make available for Tenant's inspection,
at Landlord's offices, Landlord's books and records which are relevant to any
items in dispute, provided Tenant has paid all amounts billed to Tenant on
account of the Expense Adjustment Amount and the Tax Adjustment Amount and all
installments thereof and all other rents and sums then and previously due under
this Lease. If any inspection or audit of such records shows that as to which
operating period, Landlord has overstated the amount of Operating Expenses or
Taxes payable by Tenant by an amount equal to 3% or more of the correct amounts
payable by Tenant, Landlord shall immediately credit to Tenant the amount of
such overpayment with interest thereon at 10% per annum from the date of such
over payment(s). If Tenant's audit of the books and records shows that Landlord
overstated the sum owed by Tenant by an amount equal to 3% or more of the actual
Operating Expenses and Taxes payable by Tenant, then Landlord shall reimburse
Tenant for all reasonable out-of-pocket costs incurred by Tenant in conducting
the audit.
(g) PLACE OF PAYMENT. Tenant shall, without any demand therefore and
without set-off, pay to DENVER-STELLAR ASSOCIATES LTD. PARTNERSHIP, A/R
DEPARTMENT, DENVER, COLORADO 80256-0170, or to such other person and/or at such
other place as Landlord may from time to time direct by notice given to Tenant,
the Base Rent as well as all other sums which may become due by Tenant under
this Lease. All such other sums shall be payable as additional rent.
(h) TENANT TAXES.
(i) Any provision hereof to the contrary notwithstanding, Tenant
shall, upon demand from time to there, as additional rent, pay to Agent or, as
Landlord may direct, to Landlord or to the tax collecting authority, the full
amount of all taxes, levies, charges and assessments legally required or
authorized to be collected by Landlord from Tenant or any subtenant or occupant
of the Premises and all taxes, levies, charges and assessments required to be
paid by Landlord (or imposed upon the Property) if not paid by or collected from
Tenant or a subtenant or occupant of the Premises. Tenant hereby agrees to
defend, indemnify and hold harmless Landlord from and against all loss cost,
liability and expenses (including counsel fees and costs of litigation) which
Landlord may suffer, incur or be exposed to as a result of any assertion against
Landlord of liability for any of the taxes referred to in this subparagraph (h),
and from and against any penalties or interest relating thereto, which Tenant
fails to pay pursuant hereto.
(ii) Tenant shall timley pay when due all taxes, levies, charges
and assessments which are required to be paid by Tenant with respect to Tenant's
use or occupancy of the Premises or which are or could become a lien upon the
personal property, trade fixtures, furniture or facilities of Tenant on the
Premises. Tenant hereby agrees to defend, indemnify and hold harmless Landlord
from and against all loss, cost, liability and expense (including, without
limitation, counsel fees and costs of litigation) which Landlord may suffer or
incur, or to which Landlord may be exposed, as a result of Tenant's failure to
pay any of the foregoing.
(iii) Within 15 days after each date upon which such taxes are
due, Tenant shall deliver to Landlord official receipts for the payment of all
taxes due with respect
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to the personal property, trade fixtures, furniture or facilities of Tenant on
the Premises. In addition, within 15 days after written notice from Landlord to
do so, Tenant shall deliver to Landlord official receipts for the payment of all
other taxes, levies, charges and assessments within the scope of subparagraph
(ii) above that were due and payable in the calendar year in which such notice
is given and in the preceding calendar year. If Tenant shall fail to present
any of the receipts referred to in this subparagraph within the times set forth
herein, Landlord shall have the right to pay the amounts of the taxes which
Landlord reasonably determines would have been covered thereby, together with
the full interest and penalties chargeable thereon in accordance with law, and
Landlord shall, upon demand, be entitled to reimbursement for all of such
payments together with interest at the "Lease Interest Rate" (defined in
Paragraph 21 hereof).
(iv) Tenant shall cause all of the personal property, trade
fixtures, furniture and facilities of Tenant on the Premises, and all
alterations, additions and improvements made by Tenant to the Premises which for
purposes of personal property taxes are treated as personal property (such as
built-in cabinets, counters and partitions) to be assessed separately from
Landlord's property, and, if they are not so separately assessed, Landlord shall
be entitled to reimbursement, within 10 delays after demand made from time to
time, for any tax payable by Landlord which is attributable to any of such items
taxable as personal property.
(i) DELAY IN COMPUTATION. Delay in computation of the Expense
Adjustment Amount or Tax Adjustment Amount shall not be deemed a default
hereunder or a waiver of Landlord's right to collect any of such amounts.
5. USE OF PREMISES. Tenant shall use and occupy the Premises solely as a
general business office and for no other purpose.
6. CONDITION OF PREMISES. The Tenant's taking possession of the Premises
or any portion thereof shall be conclusive evidence that the Premises or any
such portion was in good order and satisfactory condition when the Tenant took
possession. At the expiration or other termination of this Lease or of Tenant's
right of possession, Tenant shall leave the Premises, and during the Term will
keep the same, in good order and condition, ordinary wear and tear, damage by
fire or other casualty alone excepted; and for that purpose, Tenant shall make
all necessary repairs and replacements; Tenant shall give Landlord prompt notice
of any damage to or accident upon the Premises and of any breakage or defects in
the window glass, wiring or plumbing, heating, ventilating or cooling or
electrical apparatus or systems on or serving the Premises. Tenant shall at the
expiration or termination of this Lease or of Tenant's right of possession, also
have had removed from the Premises all furniture, trade fixtures, office
equipment and all other items of Tenant's property (including, without
limitation, the items Tenant is required to remove pursuant to Paragraph 8(b)
hereof) so that Landlord may again have and repossess the Premises. All such
items not removed from the Premises at such expiration or termination, shall
conclusively be deemed to have been abandoned and may be appropriated, sold,
stored, destroyed or otherwise disposed of by Landlord without notice to Tenant
or any other party with an interest in such property and without any obligation
to account therefore. Tenant shall pay Landlord all expenses incurred in
connection with the disposition of such property, and if Landlord shall choose
to store any such items, Landlord shall have no liability for the safekeeping
thereof and such items may not be retrieved by Tenant or any other person except
upon payment of such charges as may be imposed for the removal and storage.
Tenant shall comply with all laws, rules, orders, ordinances and regulations at
any time issued or in force by any lawful authority, applicable to Tenant or any
other occupant of the Premises, or to the Premises, or to the, use or occupancy
of the Premises beyond general office use. Tenant shall, upon demand, pay to
Landlord the amount of any damages suffered or incurred by Landlord as a result
of any injury to any part of the Property other than the Premises, done by
Tenant or any subtenant or any agent, employee, contractor or invitee of Tenant
or any subtenant, including, without limitation, damage done by the bringing or
removal of furniture and other property. Tenant shall forthwith repair all
damage done to the Premises by installation or removal of furniture and
property by Tenant or any subtenant or by any agent, employee, contractor or
invitee of Tenant or of any subtenant or, if Landlord shall so request, pay to
Landlord the cost of such repair. Tenant shall not do or commit, or suffer or
permit to be done
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or committed, any act or thing as a result of which any policy of insurance
of any kind on or in connection with the Property shall become void or
suspended, or any insurance risk on or in connection with the Building or any
other portion of the Property shall (in the opinion of the insurer or any
insurance organization) be rendered more hazardous or require payment of a
greater premium; without limitation of any other rights and remedies of
Landlord, Tenant shall pay as additional rent the amount of any increase of
premiums for such insurance, resulting from any breach of this provision.
Tenant shall leave the Premises in a reasonably tidy condition on all days
upon which janitorial services are to be provided by Landlord. Landlord
shall, at Landlord's expense, replace any glass broken in the Premises
windows in the exterior walls of the Building, unless such glass is broken by
Tenant, its servants, employees, agents, invitees, licensees or contractors,
in which case Tenant shall, upon demand, pay the cost of replacement by
Landlord. Tenant shall replace and pay for any other glass broken in or about
the Premises.
7. SERVICES.
(a) LIST OF SERVICES. Landlord shall provide the following services
on all days during the Term, except Sundays and holidays, unless otherwise
stated:
(i) Heating, ventilation and air conditioning, as deemed
appropriate by Landlord, from Monday through Friday within the period from
6:00 a.m. to 6:00 p.m. and on Saturday within the period from 8:00 a.m. to
1:00 p.m., holidays excepted. Tenant, within ten days after its receipt of
each bill therefore, will pay for all heating, ventilating and air
conditioning requested and furnished at other times, at rates to be
established from time to time by Landlord. Landlord shall not be responsible
for the failure of the HVAC system to provide normal comfort if such failure
results from occupancy of the Premises by more than an average of one person
for each 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. Unless otherwise consented to by Landlord,
window coverings shall be uniform in the Building and shall be closed when
exterior office windows are exposed to the sun without regard to Tenant's
specific use of the space or to tile installation of any computers or data
processing equipment. 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. If due to use of the Premises in a manner exceeding the
aforementioned occupancy and electrical load criteria, or due to the
arrangement of partitioning, or the use of heat-producing or controlled
climate equipment, or the distribution system within the Premises, impairment
of normal operation of the HVAC system in the Premises results, necessitating
changes in HVAC distribution system within the Premises, such changes may be
made by Landlord upon request by Tenant at Tenant's sole cost and expense,
provided that they can be accommodated by Landlord's systems. Tenant agrees
at all times to cooperate fully with Landlord and to abide by all the
regulations and requirements which Landlord may prescribe for the proper
functioning and protection of the HVAC system. After Landlord has balanced
the air-conditioning system for Tenant, if Tenant installs partitions,
equipment, or fixtures requiring rebalancing of the system, Landlord, at
Tenant's request and at Tenant's expense (which shall be charged as
additional rent payable upon demand) shall endeavor to do such rebalancing.
(ii) Subject to subparagraph 7(b) hereof, electrical energy for
standard building lighting fixtures provided by Landlord and for the
operation of desk-top office equipment, provided that (A) the connected
electrical load of such equipment does not exceed an average of 1.5 watts per
square foot of the Premises and (B) the electricity so furnished for
equipment uses will be at a nominal 120 volts and no electrical circuit for
the supply of such use need have a current capacity exceeding 20 amperes. If
Tenant's requirements for electricity are in excess of those set forth in the
preceding sentence, and if, in Landlord's sole judgment, Landlord's
facilities are inadequate for such additional requirements and if electrical
energy for such additional requirements is available to Landlord, Landlord
upon written request and at the sole cost and expense of Tenant, will furnish
and install, or, at Landlord's sole discretion,
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permit Tenant to furnish and install, such additional wires, risers,
conduits, feeders and switchboards as reasonably may be required to supply
such additional requirements of Tenant provided (1) that the same shall be
permitted by applicable laws and insurance regulations, (2) that, in
Landlord's sole judgment, the same are necessary and will not cause permanent
damage or injury to the Building or the Premises or cause or create a
dangerous or hazardous condition or entail excessive or unreasonable
alterations or repairs or interfere with or disturb other tenants or
occupants of the Building, (3) that, in Landlord's sole judgment, the same
will not in any way diminish or adversely affect the electricity which
Landlord deems should remain available for other tenants, and (4) that
Tenant, at Tenant's expense, shall, concurrently with the making of such
written request, execute and deliver to Landlord, Tenant's written
undertaking, in form and substance satisfactory to Landlord, obligating
Tenant to fully and promptly pay the entire cost and expense of so furnishing
and installing any additional wires, risers, conduits, feeders and/or
switchboards.
(iii) Ordinary water from the regular Building outlets for
drinking, lavatory and toilet purposes.
(iv) Janitorial services Monday through Friday in and about the
Premises (except holidays). If any material use made of the Premises after
6:00 p.m. shall by reason of work force scheduling or security, overtime,
union rules or otherwise cause any increase in Landlord's cost for providing
janitorial services, Tenant shall, as additional rent, pay all bills for
reimbursement of Landlord for such increase, within ten days after Tenant's
receipt of such bill. All janitorial services shall be performed solely at
Landlord's direction without interference from Tenant.
(v) Automatic passenger elevator service at all times.
(vi) Freight elevator services subject to reasonable scheduling
by Landlord.
(b) BILLING FOR ELECTRICITY.
(i) LANDLORD'S PAYMENT FOR NORMAL SERVICE. Landlord shall
provide and pay for electric service as described in the first sentence of
subparagraph 7(a)(ii) during the period from 6:00 a.m. to 6:00 p.m. from
Monday through Friday, and during the period from 8:00 a.m. to 1:00 p.m. on
Saturday, holidays excepted. In the event that Landlord, in Landlord's sole
discretion, determines that Tenant's use of electricity exceeds the service
to be provided tinder the first sentence of subparagraph 7(a)(ii) above or
goes materially beyond the hours specified in this subparagraph 7(b)(i),
Tenant shall pay, as additional rent, such amounts for such excess and/or
other hours use as shall be required under subparagraph 7(b)(ii) and (iii)
below.
(ii) MEASURED USAGE. In the event that Tenant's use of the
Premises includes the use of computers or other electrical equipment or
fixtures causing, in Landlord's sole determination, Tenant's use of electric
service to exceed the service to be provided under the first sentence of
subparagraph 7(a)(ii) above, or if there shall be at the Premises any other
hours (i.e. outside the hours specified in subparagraph 7(b)(i)) use of
electricity which Landlord believes may be material, Landlord shall install in
the Premises or elsewhere, if Landlord shall so elect, or, if Tenant shall so
request and if feasible in Landlord's reasonable judgment, one or more meters or
other devices to measure the electricity used by such computers or other
equipment or fixtures and/or such other hours use; and Tenant shall pay Landlord
for such electricity within ten days after submission of each bill by Landlord
therefore, at such rates as shall be from time to time determined by Landlord,
provided that the rates charged by Landlord shall not exceed Landlord's cost
(including, without limitation, taxes, fuel adjustment charges, and other like
charges regularly passed on to customers by public utility companies and
transformer costs) of supplying such electricity as determined by Landlord using
reasonable accounting methods; and the cost of obtaining and installing such
meters or other devices shall be paid by Tenant to Landlord within ten days
after submission of each bill by Landlord to Tenant therefore.
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(iii) ESTIMATED USAGE. For any other hours use of
electricity determined by Landlord to be material, and for any use of
electricity which is determined by Landlord to be in excess of the service to be
provided under the first sentence of subparagraph 7(a)(ii) above, and which is
not actually measured, Tenant shall pay to Landlord, in monthly installments at
the times prescribed for the monthly installments of the Base Rent, amounts, as
reasonably estimated by Landlord from time to time, which Tenant would be
required to pay for such excess and/or other hours electrical service if the
same were actually measured as provided in subparagraph (b)(ii) above.
(c) INTERRUPTION OF SERVICES. Tenant agrees that Landlord shall not
be liable for damages (by abatement of rent or otherwise, except for abatement
of rent specifically provided for under this Paragraph 7(c)) for failure to
furnish or delay in furnishing any service, or for any diminution in the
quality or quantity thereof, when such failure or delay or diminution is
occasioned, in whole or in part, by repairs, renewals, or improvements, by any
strike, lockout or other labor trouble, by inability to secure fuel, by
governmental laws, regulations or orders, by Landlord's compliance, in whole or
in part with any government promulgated program (whether voluntary or
mandatory), for conservation of energy by any accident or casualty whatsoever,
by act or default of Tenant or other parties, or by any cause beyond Landlord's
reasonable control; and such failures or delays or diminution shall never be
deemed to constitute an eviction or disturbance of the Tenant's use and
possession of the Premises or relieve the Tenant from paying rent or performing
any of its obligations under this Lease. Landlord's obligation to furnish
services shall also be further conditioned upon the availability of adequate
energy sources from the public utility companies then servicing the downtown
Denver area. Notwithstanding the foregoing provisions of this Paragraph 7(c),
Base Rent shall be abated in the event of the disruption of services in
accordance with the following provisions: (i) in the case of interruption of
electrical power to the Premises resulting in a shutdown of Tenant's computers,
antennas, telephones, or other office equipment, if such interruption continues
for seven consecutive days and as a result Tenant is not using the Premises (or
the affected portion), then the Base Rent for the Premises (or, if only a
portion of the Premises is affected, prorated for such portion) shall be abated
commencing on the first day following the seventh continuous day of such
disruption until the service in question has been restored; (ii) in the case of
the substantial failure of the water supply to the restrooms or substantial
failure of the HVAC system to the Premises or of any portion of the life safety
system, and if such interruption continues for seven consecutive days without
Landlord having provided reasonable substitute temporary services, and as a
result Tenant is not using the Premises (or portion affected) then Base Rent for
the Premises (or, if only a portion of the Premises is affected, for such
portion) shall be abated commencing on the first day following the seventh
consecutive day of such disruption until the service in question has been
restored. In any event, Landlord shall use reasonable efforts to restore any
discontinued or interrupted services and provide temporary services as soon as
reasonably practicable.
(d) LANDLORD'S MAINTENANCE OBLIGATIONS. Subject to the provisions of
Paragraph 11 below, Landlord shall maintain and repair the Building in a
reasonable manner including, but not limited to, the foundations, interior and
exterior structural components, roof, exterior windows and common areas of the
Building. In addition, the Landlord shall operate, maintain and repair the
utility systems, facilities and equipment necessary for proper operation of the
Building and for provisions of the services to be provided by Landlord under
this Paragraph 7.
8. ALTERATIONS.
(a) Except as provided in Paragraph 8(c), Tenant shall not, without
the prior written consent of Landlord (which shall not be unreasonably withheld
or delayed), make any alterations, improvements or additions to the Premises.
If Landlord consents to any alterations, improvements or additions, it may
impose such conditions with respect thereto as Landlord deems reasonably
appropriate, including, without limitation, Landlord's approval of plans and
specifications for the work (but Tenant shall not be entitled to rely upon such
approval as evidencing that the plans and specifications are proper in any
respect), use of Landlord's approved contractors to perform the work, insurance
against liabilities which may arise out of
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such work, permits necessary for such work and as-built drawings upon
completion of such work and the furnishing to Landlord of such security as is
determined by Landlord to be appropriate for the proper completion of such work
and its completion free of mechanics', materialmen's and similar liens or
claims thereof. All work done by Tenant or its contractors shall be done in a
first-class workmanlike manner, using only good grades of materials and without
disturbing other tenants and shall comply with all insurance requirements and
all applicable laws or ordinances and rules and regulations of governmental
departments or agencies. Before proceeding with any such work, Tenant shall
reimburse Landlord for Landlord's actual out-of-pocket costs of Landlord's
architects' review of Tenant's plans and specifications plus a reasonable
administrative fee. Any work performed by or for Tenant shall be performed by
competent workmen whose labor union affiliations are compatible with those of
the workmen who may be employed in the Building by Landlord, its contractors or
subcontractors, and Landlord shall have the right, at its option, to directly
supervise the work, which supervision shall be for the protection of Landlord's
interest only.
(b) All alterations, additions or improvements made by Tenant and all
fixtures attached to the Premises shall become the property of Landlord and
remain at the Premises or, at Landlord's option, any or all of the foregoing
shall be removed at the cost of Tenant before the expiration or sooner
termination of this Lease and in such event Tenant shall repair all damage to
the Premises caused by the installation and/or removal thereof. Tenant shall
not permit or suffer any signs advertisements or notices to be displayed,
inscribed upon or affixed on any part of the outside or inside of the Premises,
or in the Building, except on the entrance doors of the Premises, and then only
of such size, color and style as Landlord may approve which will not be
unreasonably withheld or delayed. Landlord shall have the right to remove
unauthorized signs at Tenant's expense.
(c) Landlord and Tenant agree that decorations, substitutions,
alterations and improvements shall not require the prior written consent of
Landlord if the same (i) are not structural in nature and if they do not affect
the structural integrity or external appearance of the Building or common
areas; (ii) do not adversely affect the basic Building systems; (iii) do not
affect electrical, life safety, HVAC, mechanical or plumbing systems or
fixtures; (iv) are not visible from any elevator lobby or public area; (v) do
not include any restrooms; and, (vi) do not exceed a total cost and expense of
$5,000. Notwithstanding the foregoing, Tenant agrees to deliver written notice
to Landlord advising of any decoration, substitution and non-structural changes
which do not require Landlord's consent at least three (3) business days prior
to commencement of any work upon the Premises.
9. LIENS.
(a) Tenant shall not permit there to be filed against the Property or
Landlord's interest therein or any part of either, and shall within ten days
after Tenant has notice of the claim or lien, remove or have removed, any
mechanics', or materialmen's or other lien, or claim thereof, filed by reason of
work, labor, services or materials provided for or at the request of Tenant
(other than work, labor, services or materials provided by the Landlord) or any
subtenant or occupant or for any contractor or subcontractor employed by Tenant
or any subtenant or occupant, and shall exonerate, protect, defend and hold free
and harmless Landlord against and from any and all such claims or liens.
Without limitation of the foregoing, if any such claim or lien be filed,
Landlord may, but shall not be obligated to, discharge it either by paying the
amount claimed to be due in the claim or lien or by procuring the discharge of
such lien or claim by deposit or by bonding proceedings. Any amount so paid by
Landlord and all costs and expenses, including, without limitation, reasonable
attorney's fees, in connection therewith, together with interest thereon at the
Lease Interest Rate (hereinafter defined) from the respective dates of
Landlord's making of the payments and incurring of the costs and expenses,
shall constitute additional rent payable by Tenant under this Lease and shall be
paid by Tenant to Landlord on demand.
(b) At least ten days before the commencement of any work ordered by
Tenant on the Premises, Tenant shall notify Landlord of the proposed work and
of the names and addresses of the persons supplying labor and materials for the
proposed work so that Landlord
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may avail itself of the provisions of statutes such as C.R.S. 1973
38-22-105(2). During any such work on the Premises, Landlord, or its
representatives, shall have the right to go upon and inspect the Leased Premises
at all reasonable times, and shall have the right to post and keep posted
thereon notices such as those provided for by C.R.S. 1973 38-22-105(2) or to
take any action that Landlord may deem advisable to protect Landlord's interest
in the Premises.
10. INSURANCE AND WAIVER OF SUBROGATION.
(a) Tenant, at its sole cost, shall maintain with responsible
insurance companies acceptable to Landlord and qualified to do business in
Colorado, general comprehensive public liability insurance against claims for
personal injury (including death) and property damage, arising from occurrences
in, on and about the Premises, with coverage on an occurrence basis in all cases
of not less than $1,000,000 per occurrence and $2,000,000 aggregate. Landlord
shall be designated an additional insured in the policies for such insurance,
which shall contain endorsements providing that the naming of more than one
insured shall not operate to limit or void the coverage of any named insured
relating to claims by another named insured.
(b) Tenant, at its sole cost, shall maintain with responsible
insurance companies acceptable to Landlord and qualified to do business in
Colorado, "All Risk" or equivalent insurance upon all personal property upon the
Premises and all equipment, fixtures, additions, alterations and improvements
and betterments installed by or for Tenant upon the Premises, including, without
limitation, but not including anything in the nature of a leasehold improvement,
in an amount which is at least 80% of the full replacement cost thereof, which
insurance shall name Landlord as an additional insured and Landlord's mortgagees
as mortgagees under a standard mortgagee clause. In the event of damage or
destruction to any leasehold improvements, Tenant shall use the proceeds of
such insurance to repair or restore such leasehold improvements provided that
Landlord is repairing and/or restoring the Building pursuant to the provisions
of Paragraph 11 hereof. If this Lease shall be terminated pursuant to
Paragraph 11(a) on account of damage by fire or other casualty to the Building
or the Premises, Landlord shall be entitled to all of the insurance proceeds
payable under the aforesaid insurance relating to the leasehold improvements
and the Premises, exclusive of Tenant's trade fixtures and improvements and
alterations paid for by Tenant.
(c) Tenant shall, prior to the commencement of the Term, and at least
30 days prior to the expiration date of each policy, furnish to Landlord
certificates evidencing the coverage required hereinabove in this Paragraph and
the renewal thereof, which certificates shall state that such insurance coverage
may not be materially changed or cancelled without at least ten days prior
written notice to Landlord and Landlord's mortgagee.
(d) Notwithstanding anything herein to the contrary, Landlord and
Tenant each hereby release the other, its officers, directors, partners,
agents and employees (and Tenant hereby also releases Agent, its partners,
officers, directors, agents and employees), to the extent of (i) any loss
customarily insured against (in the case of Landlord by other prudent owners
and operators of Comparable Buildings and in the case of Tenant by other
prudent tenants occupying in excess of 10,000 square feet of rentable area of
office space in Comparable Buildings) by "all risk" or "multi-peril" form
insurance coverage, whether carried or not, including at a minimum fire and
extended coverage insurance insuring against loss by fire, wind storm, riot,
malicious mischief, vandalism, smoke and water damage (including damage
caused by accidental discharge or leakage for sprinkler, plumbing, heating or
air conditioning systems) and (ii) all loss, cost, damage or expense arising
out of or due to any interruption of business, whether carried or not; such
release shall include, from any and all liability for any loss or damage
which may be inflicted upon the property of such party, notwithstanding that
such loss or damage shall have arisen out of the negligence of the other
party, its partners, officers, directors, agents or employees, the releasing
party's coverage under its insurance policies, from any and all liability for
any loss or damage which may be inflicted upon the property of such party,
notwithstanding that such loss or damage shall have arisen out of the
negligence of the other party, its partners, officers, directors, agents or
employees; provided, however, that this release shall be effective only with
respect to occurrences occurring during such time as the appropriate policy of
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insurance of the party so releasing shall contain a clause to the effect that
such release shall not affect the said policy or the right of the insured to
recover thereunder.
11. FIRE OR CASUALTY.
(a) If the Premises or the Building (including machinery or equipment
used in the operation of the Building) shall be damaged by fire or other
casualty and if such damage does not render all or a substantial portion of the
Premises or Building untenantable, then Landlord shall repair and restore the
same with reasonable promptness, subject to reasonable delays for insurance
adjustments and delays caused by matters beyond Landlord's reasonable control.
If any such damage renders all or a substantial portion of the Premises or
Building untenantable, Landlord shall have the right to terminate this Lease
(with appropriate prorations of rent being made for Tenant's possession
subsequent to the date of such damage of those tenantable portions of the
Premises) upon giving written notice to the Tenant at any time within 90 days
after the date of such damage; and if such notice is given Landlord shall have
no obligation to repair or restore. Landlord shall have no liability to Tenant,
and Tenant shall not be entitled to terminate this Lease by virtue of any
delays in completion of such repairs and restoration. Rent, however, shall
abate on those portions of the Premise as are, from time to time, untenantable
as a result of such damage; provided, however, Landlord agrees to proceed to
complete repairs with due diligence, subject to delays caused by matters beyond
Landlord's reasonable control, if this Lease is not terminated. Base Rent,
however, shall abate on those portions of the Premises which as are, from time
to time, untenantable for the purpose for which they were leased as a result of
such damage.
(b) Notwithstanding anything to the contrary herein set forth,
Landlord shall have no duty pursuant to this Paragraph 11 to repair or restore
any portion of any alterations, additions or improvements in the Premises or
the decorations thereto except to the extent that such alterations, additions,
improvements and decorations were provided by Landlord at the beginning of the
Term.
(c) Within 90 days after any casualty to the Premises or the
Building, Landlord shall give written notice to Tenant of the determination by
Landlord's architect of the reasonably estimated period for completion of
repairs. If it is estimated such repairs will take longer than 180 days and
such damage has been to the Premises or to a portion of the Building which
materially interferes with Tenant's access to or use of the Premises, Tenant
shall have a right to terminate this Lease by written notice delivered to
Landlord within 15 days following receipt of Landlord's notice. Unless this
Lease is terminated by Landlord or Tenant in accordance with the terms of this
Paragraph 11, Landlord shall proceed with due diligence to complete repair of
the Premises and the Building subject to delays caused by matters beyond
Landlord's reasonable control.
12. WAIVER OF CLAIMS - INDEMNIFICATION. To the extent not prohibited by
law, Landlord, Amerimar Realty Management Co.-Colorado (herein "Agent") and
their respective officers, directors, partners, agents, servants and employees
shall not be liable for, and it and they are hereby released by Tenant from all
liability for, any damage either to person or property or resulting from the
loss of use thereof or any other loss, or any death, sustained by Tenant or by
other persons claiming through Tenant due to the Property or any part thereof or
any appurtenances thereof becoming out of repair, or due to the happening of any
accident or event in, on or about the Property, or due to any act or neglect of
any tenant or occupant of the Building or of any other person. This provision
shall apply particularly, but not exclusively, to damage caused by gas,
electricity, snow, frost, steam, sewage, sewer gas or odors, fire, water or by
the bursting or leaking of pipes, faucets, sprinklers, plumbing fixtures and
windows, and shall apply without distinction as to the person (whether Landlord,
Agent or other) whose act or neglect was responsible for the damage and whether
or not such act or neglect occurred before, at or after the execution of this
Lease, and whether the damage was due to any of the causes specifically
enumerated above or to some other cause of an entirely different kind. Tenant
further agrees that all personal property of Tenant upon the Premises, or upon
loading docks, receiving and holding areas, or elsewhere in, on or about the
Property, shall be at the risk of Tenant only, and that neither Landlord nor
Agent, nor their partners, directors or
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officers, shall be liable for any loss or damage thereto or theft thereof.
Without limitation of any other provisions hereof, Tenant agrees to defend,
protect, indemnify and save harmless Landlord and Agent, and their respective
partners, officers, directors and employees, from and against all liability to
third parties arising out of the acts or omissions of Tenant or any subtenant or
the servants, agents, employees, contractors, suppliers, workmen and invitees of
Tenant or any subtenant.
Subject to the release provided under Paragraph 10(d) above, Tenant
agrees to indemnify and save harmless, and upon request, defend, Landlord,
Agent, and their respective partners, directors, officers and employees (herein
called "indemnitees") against and from any and all claims by or on behalf of
any person, arising out of or related to:
(a) Tenant's use or occupancy of the Premises or the conduct of its
business, or any activity, work, or thing, permitted or suffered by Tenant, in,
on or about the Premises or the Property;
(b) any occurrence in, on or about the Premises;
(c) any breach or default on Tenant's part in the performance or
observance of, or compliance with, any term, covenant or condition on Tenant's
part to be performed pursuant to the terms of this Lease; or
(d) subject, depending on the laws of the State of Colorado, either
to the doctrine of comparative negligence or to the doctrine of contributory
negligence, any act or negligence of Tenant or any subtenant, or any of their
respective agents, contractors, servants, employees, invitees or licensees, and
from and against all costs, counsel fees, expenses, penalties, fines and
liabilities which Landlord or any other indemnitee may suffer or incur in
connection with any such claim and any action or proceeding brought with respect
thereto. In the event that any action or proceeding shall be brought by reason
of any such claim, against any party to be indemnified hereunder, Tenant
covenants that Tenant, upon notice from such party and at Tenant's expense,
shall resist and defend such action or proceeding by counsel reasonably
satisfactory to such party.
Subject to the release provided under Paragraph 10(d) above, Landlord
agrees to indemnify and save harmless, and upon request, defend, Tenant against
and from any and all claims by or on behalf of third parties occurring in or
about the Building (excluding the Premises) arising out of or related to any
willfully wrong or negligent act of Landlord, subject, depending on the law of
the State of Colorado, either to the doctrine of comparative negligence or to
the doctrine of contributory negligence, and from and against all costs, counsel
fees, expenses, penalties, fines and liabilities which Tenant may suffer or
incur in connection with any such claim and any action or proceeding brought
with respect thereto. In the event that any action or proceeding shall be
brought by reason of such claim, against Tenant, Landlord covenants that
Landlord, upon notice from Tenant and at Landlord's expense, shall resist and
defend such action or proceeding by counsel reasonably satisfactory to Tenant.
13. NONWAIVER. No waiver of any provision of this Lease shall be implied
by any failure of Landlord to enforce any remedy on account of the violation of
such provision, even if such violation be continued or repeated subsequently,
and no express waiver shall affect any provision other than the one specified
in such waiver and that one only for the time and in the manner specifically
stated. No receipt of moneys by Landlord or its agents from Tenant after the
termination of this Lease shall in any way alter the length of the Term or of
Tenant's right of possession hereunder or after the, giving of any notice shall
reinstate, continue or extend the Term or affect any notice given Tenant prior
to the receipt of such moneys, it being agreed that after the service of notice
or the commencement of a suit or after final judgment for possession of the
Premises, Landlord may receive and collect any rent due, and the payment and
acceptance of payment of rent shall not waive or affect said notice, suit or
judgment.
14. CONDEMNATION. In the event that the whole of the Premises shall be
lawfully condemned or taken for a public or quasi-public use, this Lease shall
terminate as of the date
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that possession is to be surrendered to the condemnor or taking authority. In
the event that there shall be a lawful condemnation or taking for any public or
quasi-public use of any part of the Building, without there being condemned or
taken all of the Premises, then, at the option of Landlord, exercisable by
notice given to Tenant not later than 90 days after the date upon which Landlord
receives notice of the taking or condemnation, this Lease shall terminate as of
the date that possession of the Premises taken is required to be surrendered to
the condemnor or taking authority. In the event of any such taking or
condemnation of all or any part of the Premises or of all or any part of the
Property, tenant shall have no claim against Landlord and shall not have any
claim or right to any portion of the amount that may be awarded as damages or
paid as a result of such taking or condemnation; and all rights of Tenant to
damages therefore are hereby assigned by Tenant to Landlord and Tenant shall
have no claim against Landlord or the condemnor for the value of the unexpired
term of this Lease. However, the foregoing provisions of this section shall
not be construed to deprive Tenant of the right to claim and receive payment
from the condemnor or taking authority for moving the value of Tenant's trade
fixtures, business dislocation damages and related expenses as long as such
claim or the payment thereof does not reduce the award which Landlord would
otherwise be entitled to receive. In the event of any such taking or
condemnation of part of the Premises, the Base Rent, the Tax Adjustment and the
Operating Expense Adjustment shall be proportionately reduced from the date that
possession is required to be surrendered to the condemnor or taking authority.
15. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not, without the prior written consent of Landlord
(which shall not be unreasonably withheld in the case of an assignment or
subletting), (i) assign, convey or mortgage this Lease or any interest
hereunder except to an Affiliate (hereinafter defined) who is not a Prohibited
Entity (hereinafter defined); (ii) suffer to occur or permit to exist any
assignment of this Lease to an entity which is not an Affiliate
("Non-Affiliate"), or any lien upon Tenant's interest hereunder, whether
voluntarily, involuntarily or by operation of law; (iii) sublet the Premises or
any part thereof to a Non-Affiliate; (iv) permit the use of the Premises by any
parties other than Tenant, its Affiliates and their respective employees. Any
such action on the part of Tenant without Landlord's consent, shall be void and
of no effect. Landlord's consent to any assignment, subletting or transfer or
any assignment, subletting or transfer permitted in this Paragraph 15, or
Landlord's election to accept any assignee, subtenant or transferee as the
tenant hereunder and to collect rent from such assignee, subtenant or transferee
shall not release Tenant or any subsequent tenant from any covenant or
obligation under this Lease. Landlord's consent to any assignment, subletting
or other act or occurrence requiring Landlord's consent shall not constitute a
waiver of Landlord's right to withhold its consent to any future assignment,
subletting or act or occurrence requiring Landlord's consent. Without
limitation of the circumstances in which Landlord's withholding of consent to an
assignment or subletting shall not be unreasonable, it shall not be unreasonable
for Landlord to withhold its consent if the reputation, financial
responsibility, or business of the proposed assignee or subtenant is
unsatisfactory to Landlord, or if Landlord deems such business to be not
consonant with that of other tenants in the Building, or if the intended use by
the proposed assignee or subtenant conflicts with any commitment made by
Landlord to any other tenant in the Building, or if in Landlord's reasonable
judgment the assignment or subletting will have financial consequences adverse
to Landlord's interest, or if the proposed assignee or subtenant is a
Prohibited Entity. Notwithstanding any provision contained in this Paragraph 15
to the contrary, Tenant shall not be required to deliver notice of any
assignment or sublet to an Affiliate prior to such assignment or sublet.
(b) At least 20 business days prior to any proposed subletting or
assignment to a Non-Affiliate, Tenant shall submit to Landlord a statement
seeking Landlord's consent and containing the name and address of the proposed
subtenant or assignee, the terms of the proposed sublease or assignment
(including, without limitation, the date upon which the assignee or subtenant is
to take possession) and such financial and other information with respect to the
proposed assignee or subtenant as Landlord reasonably may request. Landlord
shall indicate its consent or non-consent within six (6) business days of its
receipt of said statement. Tenant shall notify Landlord in writing of any
subletting or assignment to an Affiliate, Tenant shall submit to Landlord a
statement containing the name, address and affiliation of the proposed subtenant
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or assignee to the Tenant, the terms of the proposed sublease or assignment
and financial and other information with respect to the proposed assignee or
subtenant as Landlord may reasonably request.
(c) Contemporaneously with any request or proposal by tenant to
sublet or assign any part of this Lease, Tenant shall pay all costs, including
reasonable attorneys' fees, incurred by Landlord or anticipated to be incurred
by Landlord, in connection with Landlord's investigation of any financial or
other information of the proposed assignee or subtenant all of such costs will
in no event exceed $500. Landlord may require that all or a portion of the
costs or anticipated costs be paid in advance by Tenant. The payment of such
costs shall not obligate Landlord in any way to consent to any proposed
assignment or subletting nor shall the amount of costs paid by Tenant be applied
or used as a set-off to any amounts due or to become due by Tenant to Landlord.
(d) In addition to withholding its consent, Landlord shall have the
additional right, exercisable within such 30 day period, to terminate this Lease
in its entirety (where Tenant seeks to assign this Lease or sublet the entire
Premises to a Non-Affiliate) or as to that portion of the Premises which Tenant
seeks to sublet (where Tenant seeks to sublet only a portion of the Premises to
a Non-Affiliate for a term exceeding two (2) years at a time when the remaining
Term of the Lease is three (3) years or more). Landlord may exercise such right
to terminate by giving written notice to Tenant it any time prior to Landlord's
written consent to such assignment or sublease. In the event that Landlord
exercises such right to terminate, (i) the termination shall be effective as of
such date as Landlord may specify in its notice which shall not be later than
the later of [A] the proposed date for possession by such Non-Affiliate
assignee or subtenant, or [B] ninety (90) days after the date of Landlord's
notice of termination to Tenant and (ii) as of the effective date of such
termination Tenant shall have no further liability under this Lease with respect
to that portion of the Premises which is the subject of such termination.
(e) If Landlord fails to exercise its termination right and its right
to withhold its consent as set forth in the preceding subsections, Tenant shall
pay to Landlord fifty percent (50%) of all profit derived by Tenant from the
assignment or sublease ("Sublease Profit"). The Tenant shall not be required to
pay any Sublease Profit derived by Tenant from an assignment or sublease with an
Affiliate. In determining Sublease Profit the Tenant shall only be permitted to
deduct (i) leasing commissions and brokerage fees paid by Tenant and (ii) any
other reasonable out-of-pocket costs paid by Tenant and which are directly
attributable to such assignment or sublease. Whenever requested by Landlord,
Tenant shall furnish Landlord with a statement, certified by an authorized
officer of Tenant as true, correct and complete, setting forth in detail the
computation of profit (which computation shall be based upon generally accepted
accounting principles), and Landlord, or its representatives, shall have access
to the books, records and papers of Tenant in relation thereto, and to make
copies thereof. Any rent in excess of that paid by Tenant hereunder realized by
reason of such assignment or sublease less the costs described above shall be
deemed an item of such profit. Such percentage of Tenant's profits shall be
paid to Landlord promptly by Tenant upon Tenant's receipt from time to time of
periodic payments from such assignee or subtenant or at such other earlier time
as Tenant shall realize its profits from such assignment or sublease.
(f) For the purposes of this Lease, the following terms shall have
the following meanings:
(i) "Affiliate" shall mean [A] any person or entity which,
directly or indirectly, controls Tenant or is controlled by Tenant or is under
common control with Tenant, [B] any Successor to Tenant by merger, consolidation
or other operation of law, [C] any person or entity to whom all or substantially
all of tile assets of Tenant are conveyed or [D] any person or entity purchasing
the business which Tenant conducts at the Premises.
(ii) "Prohibited Entity", unless otherwise agreed in writing
by Landlord, shall mean [A] a governmental or a governmental subdivision,
instrumentality or agency, [B] a school, college or university, [C] an
employment, recruitment or temporary help service or agency, [D] a collection
agency, or [E] any entity or an affiliate thereof which has
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previously defaulted in the performance of its obligations under a lease
concerning any portion of the Building or any building located within the Denver
Place complex known and numbered as 999 - 18th Street, Denver, Colorado 80202
(collectively the "Complex"). An insurance agency (other than Alexander &
Alexander, Inc.) shall be deemed to be a Prohibited Entity if such insurance
agency (x) subleases or occupies any floor of the Building leased to or occupied
by Alexander & Alexander Inc., (y) subleases or occupies any portion of the 29th
through 31st floors of the Building or (z) subleases or occupies more than
12,000 square feet of rentable area in the Building.
16. HOLDOVER. If the Tenant or any person claiming through the Tenant
shall retain possession of the Premises or any part thereof after the expiration
or earlier termination of the Term and if Landlord shall consent to such
continuation of possession, such possession shall be (unless the parties hereto
shall otherwise have agreed in writing) deemed to be under a month-to-month
tenancy which shall continue until either party shall notify the other in
writing, at least 30 days prior to the end of any calendar month, that the party
giving such notice elects to terminate such tenancy at the end of such calendar
month, in which event such tenancy shall so terminate. Anything contained in
the foregoing provisions of this paragraph to the contrary notwithstanding, the
rental payable with respect to each such monthly period shall be 150% of the
monthly Base Rent and 150% of the monthly Tax Adjustment Amount and of the
monthly Expense Adjustment Amount (both calculated in accordance with the
provisions of Paragraph 4 hereof) which would have been payable had this Lease
been renewed until the end of the calendar year which includes such month on the
terms and conditions in effect immediately prior to the expiration or
termination of the Term for the first three (3) months of Tenant's holdover and
200% of the monthly Base Rent and 200% of the monthly Tax Adjustment Amount and
of the monthly Expense Adjustment Amount (both calculated in accordance with the
provisions of Paragraph 4 hereof) which would have been payable had this Lease
been renewed until the end of the calendar year which includes each month on the
terms and conditions in effect immediately prior to the expiration or
termination of the Term for any period after the first three (3) months of
Tenant's holdover; and such month-to-month tenancy with Landlord's consent shall
be upon the same terms and subject to the same conditions as those which are set
forth in this Lease except as aforesaid. If Tenant or any person claiming
through Tenant shall retain possession of the Premises or any part thereof,
after the expiration or earlier termination of the term or of Tenant's right of
possession, and if such retention shall be without Landlord's consent, Tenant
shall pay Landlord (a) for each month or portion thereof during which such
possession continues, an amount equal to the rental to be paid for each month
pursuant to the foregoing provisions of this paragraph when such possession is
with Landlord's consent, plus all other sums which would have been payable
hereunder had the term continued during such retention of possession and (b) all
other damages sustained by Landlord, whether direct or consequential, by reason
of such retention of possession. During any such retention of possession
without Landlord's consent, all of Tenant's obligations with respect to the
use, occupancy and maintenance of the Premises shall continue. The provisions
of this Paragraph shall not be deemed to limit or constitute a waiver of any
other rights or remedies of Landlord provided herein or at law or in equity and
applicable to unlawful retention of possession or otherwise.
17. ESTOPPEL CERTIFICATE. Either party shall from time to time, within
ten days after receipt of the other party's request therefore, execute,
acknowledge and deliver to the requesting party a written instrument in
recordable form (a) certifying (i) that this Lease is in full force and effect
and has not been modified, supplemented or amended in any way (or, if there have
been modifications, supplements or amendments thereto, that it is in full force
and effect as modified, supplemented or amended, and stating such modifications,
supplements and amendments) and that this Lease (as modified, supplemented or
amended, as aforesaid) represents the entire agreement among Landlord and Tenant
as to the Premises and the leasehold; (ii) the dates to which the Base Rent,
additional rent and other charges arising hereunder have been paid, (iii) the
amount of any prepaid rents or credits due to Tenant, if any; and (iv) that if
applicable, Tenant has entered into occupancy of the Premises; and (b) stating,
to the best knowledge of such party, whether or not all conditions under the
Lease to be performed by the requesting party prior to the date of such
certificate have been satisfied and whether or not the requesting party is then
in default in the performance of any covenant, agreement or condition contained
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in this Lease and specifying, if any, each such unsatisfied condition and each
such default; and (c) stating any other fact or certifying any other condition
reasonably requested by the requesting party or by any mortgagee or prospective
mortgagee or purchaser of the Property or of any interest therein.
18. SUBORDINATION.
(a) This Lease shall be subject and subordinate at all times to the
lien of any mortgage or deed of trust, heretofore or hereafter placed by
Landlord on the Property or any part thereof and of all renewals, modifications,
consolidations, replacements and extensions thereof (all of which are
hereinafter referred to collectively as a "mortgage"), all automatically and
without the necessity of any further act on the part of Tenant to effectuate
such subordination. Tenant shall, at the request of the holder of any such
mortgage, upon foreclosure thereof attorn to such holder. Subject to the
provisions of the Rider, Tenant shall also execute, acknowledge and deliver,
within 15 days after Tenant's receipt of demand from Landlord or such holder,
such other instrument or instruments evidencing such subordination of Tenant's
right, title and interest under this Lease to the lien of any such mortgage, and
such other instrument or instruments of attornment, as shall be desired by such
holder. Notwithstanding the foregoing provisions of this Paragraph 18(a) as a
condition precedent to Tenant's attornment and subordination to the lien of any
mortgage or deed of trust hereafter placed by Landlord on the Property or any
portion thereof, the holder of any such mortgage or deed of trust shall agree in
writing not to disturb Tenant's rights under this Lease provided Tenant is not
in default in the performance of its obligations hereunder.
(b) Anything contained in the foregoing provisions of this Paragraph
to the contrary notwithstanding, any such holder may at any time subordinate its
mortgage to this Lease, without the necessity of obtaining Tenant's consent, by
giving notice of the same in writing to Tenant, and thereupon this Lease shall
be deemed to be prior to such mortgage without regard to their respective dates
of execution, delivery or recordation and/or the date of commencement of
Tenant's possession, and in that event such holder shall have the same rights
with respect to this Lease as though this Lease shall have been executed,
delivered and recorded prior to the execution and delivery of such mortgage.
(c) If Landlord is or becomes lessee of premises of which the
Premises are a part, Tenant agrees that, automatically and without the necessity
of any further act, Tenant's possession shall be as a subtenant and shall be
subordinate to the interest of Landlord's lessor, its heirs, personal
representatives, successors and assigns (which lessor, its heirs, personal
representatives, successors and assigns, or any of them, is hereinafter called
"Paramount Lessor"), but notwithstanding the foregoing, if Landlord's tenancy
shall terminate by expiration, by forfeiture or otherwise, then Tenant hereby
agrees, upon request of Paramount Lessor, to attorn to Paramount Lessor, and to
recognize such lessor as Tenant's landlord for the balance of the term of this
lease and any extensions or renewals hereof. Tenant shall execute, acknowledge
and deliver, upon demand by Landlord or Paramount Lessor, such other instrument
or instruments evidencing such subordination of Tenant's right, title and
interest under this Lease to the interest of such lessor, and such other
instrument or instruments of attornment, as shall be prescribed by such lessor.
As a condition precedent to the foregoing subordination and attornment under
this Paragraph 18(c), any Paramount Lessor shall agree in writing not to disturb
Tenant's rights under this Lease provided Tenant is not in default in the
performance of its obligations hereunder after the expiration of applicable
notice and cure periods.
19. CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord shall have the
following rights, each of which Landlord may exercise without notice to Tenant
and without liability to Tenant for damage or injury to property, person or
business on account of the exercise thereof, and the exercise of any such rights
shall not be deemed to constitute an eviction or disturbance of Tenant's use or
possession of the Premises and shall not give rise to any claim for set-off or
abatement of rent or any other claim:
(a) to change the Building's name or street address provided Tenant
is notified at least 60 days prior to any such change;
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(b) to install, affix and maintain any and all signs on the exterior
and on the interior of the Building;
(c) to decorate or to make changes, repairs, alterations, additions,
or improvements, whether structural or otherwise (including alterations in the
configuration of, and elimination of, any common areas), in and about the
Building and Property or any part thereof, and for such purposes to enter upon
the Premises, and during the continuance of any of said work, to temporarily
close doors, entry ways, public space and corridors in the Building and to
interrupt or temporarily suspend services or use of facilities; but Landlord
shall endeavor to perform any such work in or about the Premises so as to cause
the minimum inconvenience to Tenant practicable under the circumstances and
shall use reasonable efforts to perform such work in or about the Building in
such a manner as to ensure continued access to the Premises and the availability
of the common areas (including the Parking Garage);
(d) to reasonably designate and reasonably approve all window
coverings used in the Building;
(e) to approve, disapprove or restrict the weight, size and location
of safes, vaults and other heavy equipment and articles in and about the
Premises and the Building so as not to exceed the live load per square foot
designated by the structural engineers for the Building, and to require all such
items and furniture and similar items to be moved into or out of the Building
and Premises only at such times and in such manner as Landlord shall reasonably
direct in writing. Tenant shall not install or operate machinery or any
mechanical devices of a nature not directly related to Tenant's ordinary use of
the Premises without the prior written consent of Landlord. Tenant's movements
of property into or out of the Building or Premises and within the Building are
entirely at the risk and responsibility of Tenant, and Landlord reserves the
right to require permits before allowing any property to be moved into or out of
the Building or Premises provided that any such requirement shall be made
generally applicable to all tenants, not just Tenant;
(f) to establish controls for the purpose of regulating all property
and packages, both personal and otherwise, to be moved into or out of the
Building and Premises and all persons using the Building after normal office
hours;
(g) to regulate delivery and service of supplies in order to insure
the cleanliness and security of the Premises and to avoid congestion of the
loading docks, receiving areas and freight elevators;
(h) to show the Premises to prospective tenants at reasonable
business hours upon reasonable prior oral notice to Tenant during the last
twelve months of the Term and, if vacated or abandoned, to show the Premises at
any time and to prepare the Premises for re-occupancy;
(i) to erect, use and maintain pipes, ducts, wiring and conduits,
and appurtenances thereto, in and through the Premises at reasonable locations,
provided Landlord takes reasonable efforts to minimize the interference with
Tenant's use and enjoyment and access of the Premises; and
(j) to enter the Premises at any reasonable time upon reasonable
prior oral notice (except in an emergency when no notice shall be required) to
inspect the Premises.
20. RULES AND REGULATIONS. Tenant shall, and shall cause all of its
subtenants and occupants, its and their agents, and employees, and shall use
reasonable efforts to cause all of its invitees and licensees to, observe
faithfully, and comply with, the rules and regulations attached to this Lease as
Exhibit "B", as they may be reasonably supplemented and reasonably revised by
Landlord from time to time, and such other reasonable rules and regulations
promulgated from time to time by Landlord, as in the Landlord's reasonable
judgment may be desirable for the safety, care and cleanliness of the Building
and the Premises, or for the preservation of good order therein. Landlord shall
not be liable to Tenant for violation of such
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rules and regulations by, or for Landlord's failure to enforce the same against,
any other tenant, its subtenants and occupants and its and their agents,
employees, invitees or licensees, nor shall any such violation or failure
constitute, or be treated as contributing to, an eviction, actual or
constructive, or affect Tenant's covenants and obligations hereunder, or allow
Tenant to reduce, abate or offset the payment of any rent under this Lease.
21. REMEDIES.
(a) If default shall be made in the payment of any rent or any
installment thereof or in the payment of any other sum required to be paid by
Tenant under this Lease or under the terms of any other agreement between
Landlord and Tenant and such default shall continue for ten days, (for the first
two defaults in the payment of rent hereunder Landlord agrees to deliver written
notice to Tenant and permit Tenant ten (10) days after delivery of such notice
in which to cure such default) or if default shall be made in the observance or
performance of any of the other agreements, covenants or conditions in this
Lease (or in any other agreement between Landlord and Tenant, including but not
limited to the Security Agreement, as hereinafter defined) which Tenant is
required to observe and perform and such default shall continue for fifteen (15)
days after written notice to Tenant unless such default is not reasonably
capable of being cured within such fifteen (15) day period, in which event there
shall be a default if Tenant fails to commence such cure within fifteen (15)
days or thereafter fails to diligently pursue such cure to completion which
shall in no event exceed ninety (90) days, or if the interest of Tenant in this
Lease shall be levied on under execution or other legal process, or
(b) if Tenant becomes the subject of commencement of an involuntary
case under the federal bankruptcy law as now or hereafter constituted, or there
is filed a petition against Tenant seeking reorganization, arrangement,
adjustment or composition of or in respect of Tenant under the federal
bankruptcy law as now or hereafter constituted, or under any other applicable
federal or state bankruptcy, insolvency, reorganization or other similar law, or
seeking the appointment of a receiver, liquidator or assignee, custodian,
trustee, sequestrator (or similar official) of Tenant or any substantial part of
its property, or seeking the winding-up or liquidation of its affairs and such
involuntary case or petition is not dismissed within 60 days after the filing
thereof, or if Tenant commences a voluntary case or institutes proceedings to be
adjudicated a bankrupt or insolvent, or consents to the institution of
bankruptcy or insolvency proceedings against it, under the Federal bankruptcy
laws as now or hereafter constituted, or any other applicable Federal or state
bankruptcy or insolvency or other similar law, or consents to the appointment of
or taking possession by a receiver or liquidator or assignee, trustee,
custodian, sequestrator (or other similar official) of Tenant or of any
substantial part of its property, or makes any assignment for the benefit of
creditors or admits in writing its inability to pay its debts generally as they
become due or fails to generally pay its debts as they become due or if Tenant
or its stockholders or board of directors or any committee thereof takes any
corporate action in contemplation, preparation or furtherance of or for any of
the occurrences, steps, procedures, proceedings or other items mentioned in this
Paragraph 21(b) or
(c) if Tenant shall vacate and abandon the Premises for a period of
seven days during the Term, Landlord may treat the occurrence of any one or more
of the foregoing events as a breach of this Lease, and thereupon at its option
may, without notice or demand of any kind to Tenant or any other person, have
any one or more of the following described remedies in addition to all other
rights and remedies provided at law or in equity or elsewhere herein:
(i) At the option of Landlord, the whole balance of rent,
charges and all other sums payable hereunder, whether or not payable as rent,
for the entire balance of the Term, and any renewal or extension thereof, herein
reserved or agreed to be paid by Tenant, or any part of such rent, charges and
other sums, and also all or any costs and sheriff's, marshall's, constable's or
other official's fees and charges, whether chargeable to Landlord or Tenant,
shall be taken to be due and payable from Tenant and in arrears as if by the
terms of this Lease said balance of rent, charges and other sums and expenses
were on that date payable in advance; and/or
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(ii) Landlord, by giving written notice to Tenant, may
terminate this Lease and the Term, in which event Landlord may immediately
repossess the premises by legal proceedings, force or otherwise; and/or
(iii) Landlord, by giving written notice to Tenant, may
terminate Tenant's right of possession and may immediately repossess the
Premises by legal proceedings, force or otherwise, without terminating this
Lease.
(iv) After reentry, retaking, repossessing or recovering of
the Premises, whether or not Landlord has terminated this Lease, Landlord may,
but shall be under no obligation to, relet the same or any portion thereof for
such rent and upon such terms as shall be deemed advisable by Landlord; and
whether or not the Premises are relet, Tenant shall be liable for any loss of
rent for such period as would be the balance of the term of this Lease and any
renewals thereof plus the costs and expenses of reentry, retaking, repossession
and recovering, and of reletting and of redecorating, remodelling and making
repairs and alterations to the Premises for the purpose of reletting, the amount
of such liability to be computed monthly and paid by Tenant to Landlord at the
end of each month. Landlord shall (except to the extent required by the terms
of subparagraph 21(c)(ix)) in no event have any duty to relet the Premises, nor
shall any damages or other sums to be paid by Tenant to Landlord be reduced by
any failure to relet the Premises or failure to collect the rent from any
reletting. Tenant shall not be entitled to any rents received by Landlord in
excess of the rents provided for in this Lease. Tenant agrees that Landlord may
file suit to recover any sums falling due under the terms of this Paragraph 21
from time to time and that no suit or recovery of any portion due Landlord
hereunder shall be any defense to any subsequent action brought for any amount
not theretofore reduced to judgment in favor of Landlord. If Landlord relets
the Premises, such reletting shall not be considered a termination of this Lease
unless Landlord has given Tenant a notice wherein Landlord expressly states that
this Lease is terminated.
(v) If Landlord shall terminate this Lease as provided in
subparagraph 21(c)(ii) above, Landlord, at its option, shall be entitled to
recover as damages the excess, if any, at the time of such termination, of the
amount of the Base Rent payable under this lease for the balance of the term of
this Lease (including, any extension options which have been exercised) over the
then fair rental value of the Premises for the same period, plus all costs and
expenses of Landlord caused by Tenant's default, including, but not limited to,
reasonable attorney's fees.
(vi) If any payment of rent or any other sum, or any part of
any such payment, to be made by Tenant under the terms of this Lease shall
become overdue for a period in excess of five days Tenant shall pay to Landlord
(x) a "late charge" of $.05 for each dollar so overdue, for the purpose of
defraying the expense incident to handling such overdue or delinquent payment,
and (y) interest on the overdue amount at the Lease Interest Rate (defined
below) from the date when such payment was due until the date paid, but in no
event more than the amount or rate which is the maximum amount or rate Landlord
may lawfully charge in respect of Tenant in such circumstances under applicable
law. The "Lease Interest Rate" shall mean the greater of 18% per annum or such
variable rate which is from time to time equal to 3% above the prime rate as
stated by Colorado National Bank, Denver, Colorado or its successor, or, in the
absence of there being a successor to Colorado National Bank, by such other bank
having an office in the City of Denver, as Landlord may from time to time
select. Nothing herein shall be construed as waiving any rights of Landlord
arising out of any default of Tenant by reason of Landlord's accepting any such
late charge or interest; the right to collect a late charge and interest is
separate and apart from any other rights or remedies of Landlord after default
by Tenant.
(vii) Without limiting the generality of the foregoing, if
Tenant shall be in default in the performance of any of its obligations
hereunder, Landlord may (but shall not be obligated to), in addition to any
other rights it may have in law or in equity, cure such default on behalf of
Tenant, and Tenant shall reimburse Landlord upon demand for any sums paid or
costs incurred by Landlord in curing such default, including reasonable
attorneys' fees and other
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legal expenses, together with interest at the Lease Interest Rate from the dates
of Landlord's incurring of costs or expenses.
(viii) All remedies available to Landlord hereunder and
otherwise available at law or in equity shall be cumulative and concurrent. No
termination of this Lease nor taking or recovering possession of the Premises
shall deprive Landlord of any remedies or actions against Tenant for rent, for
charges, or for damages for the breach of any term, covenant or condition herein
contained, nor shall the bringing of any such action for rent, charges or breach
of term, covenant or condition, nor the resort to any other remedy or right for
the recovery of rent, charges or damages for such breach be construed as a
waiver or release of the right to insist upon the forfeiture and to obtain
possession. The failure of Landlord to insist upon strict and/or prompt
performance of the terms, agreements, covenants and conditions of this Lease or
any of them, and/or the acceptance of such performance thereafter shall not
constitute or be construed as a waiver of Landlord's right to thereafter enforce
the same strictly according to the tenor thereof in the event of a continuing or
subsequent default.
(ix) Notwithstanding anything in this Paragraph 21 or any other
provision of this Lease to the contrary, this Lease shall not be terminated by
service upon Tenant of a notice from Landlord demanding payment of rent or
possession of the Premises following default by Tenant, or by any action of
Tenant to vacate the Premises following receipt of such a notice, unless the
notice served by Landlord includes a statement expressly terminating this Lease.
Further, Landlord reserves the right to receive payment of all unaccrued rent
for the balance of the Term originally contemplated under Paragraph 1 of this
Lease (and any extensions or renewals thereof to which Tenant shall have become
bound) following service of such a notice for payment or possession, or a notice
terminating this Lease for Tenant's default. No provision contained in this
Paragraph 21 shall be construed or interpreted as negating or waiving Landlord's
obligation to mitigate its damages to the extent required by the laws of the
State of Colorado.
22. EXPENSES OF ENFORCEMENT. Tenant shall pay upon demand all Landlord's
costs, charges and expenses, including the fees and out-of-pocket expenses of
counsel, agents and others retained by Landlord, incurred by Landlord, whether
or not suit is brought, in enforcing Tenant's obligations hereunder or in
collecting any amounts due from Tenant or any subtenant or assignee hereof or in
enforcing any provision of this Lease or in any litigation, negotiation or
transaction in which Tenant causes Landlord without the Landlord's fault to
become involved or concerned or in reletting the Premises or any portion thereof
after default by Tenant. Landlord and Tenant further agree that in the event
any legal action or proceeding is commenced to enforce the obligations set forth
in this Lease, the prevailing party shall be entitled to an award of all
reasonable costs and expenses including, but not limited to, reasonable
attorneys' fees.
23. COVENANT OF QUIET ENJOYMENT. Landlord covenants that Tenant, on
paying the rent, charges for services and other payments herein reserved or
required and on keeping, observing and performing all the other terms,
covenants, conditions, provisions and agreements herein contained on the part of
the Tenant to be kept, observed and performed, shall, during the Term, peaceably
and quietly have, hold and enjoy the Premises free from interference by Landlord
or any person claiming by, from or under Landlord, subject, however, to the
terms, covenants, conditions, provisions and agreements hereof.
24. SECURITY DEPOSIT. Upon the execution of this Lease, Tenant shall
deposit with Landlord the sum of $62,000.00 (hereinafter referred to as
"Deposit"), as security for the prompt, full and faithful performance by Tenant
of each and every provision of this Lease and of all obligations of Tenant
hereunder. No interest shall be paid to Tenant on the Collateral and Landlord
may co-mingle the collateral with any other funds of Landlord.
If Tenant fails to perform any of its obligations hereunder, Landlord
may use, apply or retain the whole or any part of the Deposit for the payment of
(a) any rent or other sums of money which Tenant may not have paid when due, (b)
any sum expended by Landlord on Tenant's behalf in accordance with the
provisions of this Lease, and/or (c) any damages
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which Landlord may sustain or sums which Landlord may expend or be required to
expend by reason of Tenant's default, including, without limitation, any damage
or deficiency in or from the reletting of the Premises as provided in Paragraph
21. The use, application or retention of the Deposit, or any portion thereof,
by Landlord shall not prevent Landlord from exercising any other right or remedy
provided by this Lease or by law (it being intended that Landlord shall not
first be required to proceed against the Deposit) and shall not operate as a
limitation on any recovery to which Landlord may otherwise be entitled. If any
portion of the Deposit is used, applied or retained by Landlord for the purposes
set forth above, Tenant agrees, within ten days after the written demand
therefore is made by Landlord, to deposit cash with the Landlord in an amount
sufficient to restore the Deposit to its original amount.
If Tenant shall fully and faithfully comply with all of the provisions of
this Lease, the Deposit, or any balance thereof, shall be returned to Tenant
without interest within 30 days after the expiration of the Term or within 30
days after which Tenant has vacated the Premises. In the absence of evidence
satisfactory to Landlord of any permitted assignment of the right to receive the
Deposit, or of the remaining balance thereof, Landlord may return the same to
the original Tenant, regardless of one or more assignments of Tenant's interest
in this Lease or the Deposit. In such event, upon the return of the Deposit, or
the remaining balance thereof to the original Tenant, Landlord shall be
completely relieved of liability under this Paragraph 24 or otherwise with
respect to the Deposit.
Tenant acknowledges that Landlord has the right to transfer or mortgage its
interest in the Property and in this Lease and Tenant agrees that in the event
of any such transfer or mortgage, Landlord shall have the right to transfer or
assign the Deposit to the transferee or mortgagee. Upon written acknowledgment
of transferee's or mortgagee's receipt of such Deposit, Landlord shall thereby
be released by Tenant from all liability or obligation for the return of such
Deposit and Tenant shall look solely to such transferee or mortgagee for the
return of the Deposit.
The Deposit shall not be mortgaged, assigned or encumbered in any manner
whatsoever by Tenant.
25. REAL ESTATE BROKER. Tenant represents that Tenant has dealt with (and
only with) Spectrum Realty Advisors, John Bitzer, as broker in connection with
this Lease, and that insofar as Tenant knows, no other broker negotiated this
Lease or is entitled to any commission in connection therewith. Tenant agrees
to indemnify, defend and hold Landlord harmless from and against any claims, for
a commission or other compensation in connection with this Lease, made by any
broker or finder other than the broker named above who claims to have dealt with
or communicated to Tenant in connection with this Lease, provided that Landlord
has not in fact retained such broker or finder.
26. MISCELLANEOUS.
(a) RIGHTS CUMULATIVE. All rights and remedies of Landlord under
this Lease shall be cumulative and none shall exclude any other rights or
remedies allowed by law, in equity or otherwise.
(b) CAPTIONS AND USAGE. The titles appearing in connection with the
various sections and paragraphs of this lease are for convenience only; they are
not intended to indicate all of the subject matter in the text and they are not
to be used in interpreting this Lease nor for any other purpose in the event of
any controversy. As used herein (i) the term "person" shall be deemed to
include a natural person, a trustee, a corporation, a partnership, a
governmental unit and any other form of legal entity; (ii) all usages in the
singular or plural number shall be deemed to have been made, respectively, in
the plural or singular number as well; the use of any gender includes all
genders.
(c) BINDING EFFECT. Each of the provisions of this Lease shall
extend to and shall, as the case may require, bind or inure to the benefit not
only of the Landlord and of
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Tenant, but also of their respective successors or assigns, provided this clause
shall not permit any assignment by Tenant contrary to the provisions of
Paragraph 15 hereof.
(d) LEASE CONTAINS ALL TERMS. There are no promises,
representations, warranties or undertakings by, or binding upon, Landlord with
respect to the Building, the Premises or the Real Property, including, but not
limited to, any with regard to alteration, remodeling, redecorating or
installation of equipment or fixtures in the Premises, except those, if any,
that are expressly set forth in this Lease. No modification, waiver or
amendment of this Lease or of any of its conditions or provisions shall be
binding upon the Landlord unless in writing signed by Landlord or by a duly
authorized agent of Landlord empowered by a written authority signed by
Landlord.
(e) SUBMISSION OF LEASE. Submission of this Lease by Landlord for
execution by Tenant, or Tenant's execution hereof without Landlord's prior or
simultaneous execution, shall not bind Landlord in any manner, and no binding
Lease or obligation of the Landlord shall arise until Lease is signed by both
Landlord and Tenant and delivery is made to each.
(f) NO AIR RIGHTS. No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease.
(g) MODIFICATION OF LEASE. If any lender requires, as a condition to
its lending funds, the repayment of which is to be secured by a mortgage or
trust deed on the Property or any part thereof, that certain modifications be
made to this Lease, which modifications will not require Tenant to pay any
additional amounts or otherwise change materially the rights or obligations of
Tenant hereunder, Tenant shall, upon Landlord's request, execute appropriate
instruments effecting such modifications,
(h) SUBSTITUTION OF OTHER PREMISES. INTENTIONALLY DELETED
(i) TRANSFER OF LANDLORD'S INTEREST. Notwithstanding anything
contained herein to the contrary, Tenant agrees that neither Landlord nor any
partner in Landlord, nor any other person having any interest, direct or
indirect, immediate or more removed than immediate, in Landlord, shall have any
personal liability with respect to any of the provisions of this Lease and
Tenant shall look solely to the estate and property of Landlord in the Property
for the satisfaction of Tenant's remedies, including without limitation, the
collection of any judgment or the enforcement of other judicial process
requiring the payment or expenditure of money by Landlord, subject, however, to
the prior rights of any holder of any mortgage covering all or part of the
Property, and no other assets of Landlord or its partners, or of any other
aforesaid person having an interest in Landlord, shall be subject to levy,
execution or other judicial process for the satisfaction of Tenant's claims.
Without limitation of the foregoing, upon each transfer of the Building and the
Landlord's interest in this Lease, the transferor shall automatically be
released from all liability and obligations under this Lease.
(j) RECORDING; SHORT FORM MEMO. This Lease shall not be recorded by
Tenant. If it is recorded by Tenant, Landlord shall have the right to terminate
this Lease as of the date of recording or thereafter and Landlord shall have all
rights and remedies provided in the case of default by Tenant hereunder. If
requested by Landlord, Tenant shall execute, in recordable form, a short form
memorandum of lease that may, at Landlord's option, be placed of record: In
addition, if requested by Landlord, Tenant shall execute a memorandum of lease
to be filed with the Colorado Department of Revenue, on such form as may be
prescribed by said Department, within ten days after the execution of this
Lease, or any other such
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memorandum, so that the Landlord may avail itself of the provision of statutes
such as C.R.S. 1973 39-22-604(7)(c),
(k) COVENANTS AND CONDITIONS. All of the covenants of Tenant
hereunder shall be deemed and construed to also be "conditions", if Landlord so
elects, as well as "covenants" as though the words specifically expressing or
importing covenants and conditions were used in each separate instance.
Tenant's covenants to pay rent are independent of any other covenant, agreement,
term or condition of this Lease.
(l) APPLICATION OF PAYMENTS, Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease (regardless of Tenant's
designation of such payments) to satisfy any obligations of Tenant hereunder, in
such order and amounts as Landlord in its sole discretion, may elect.
(m) SECURITY INTEREST IN TENANT'S PERSONAL PROPERTY AND ADDITIONAL
SECURITY.
(i) As security for the payment of all rent and other sums
becoming due under this Lease and the performance of all of Tenant's obligations
under this Lease, Tenant hereby grants to Landlord a security interest in all
improvements, equipment and other personal property of Tenant situated on or in
the Premises. Such security interest shall at all times be subordinate to any
purchase money finance relating to such improvements, equipment and other
personal property. Tenant agrees at the time of the execution of this Lease to
execute and deliver a Security Agreement ("Security Agreement") in the form and
content of Exhibit "E" attached hereto and accompanying financing statement.
Tenant's failure to comply with any of the terms of the Security Agreement
shall constitute a default under this Lease. Tenant within 15 days after request
therefore made from time to time by Landlord shall execute such additional
documents as Landlord may reasonably request in order to evidence and perfect
Landlord's security interest; provided, however, that Landlord agrees not to
perfect its security interest unless and until Tenant is in default under this
Lease. If Tenant is in default under this Lease, such improvements, equipment
and other personal property shall not be removed from the Premises without the
prior written consent of Landlord. Upon any default by Tenant under this Lease,
Landlord may exercise any and all rights of a secured party under the Colorado
Uniform Commercial Code.
(ii) Upon the execution of this Lease, Tenant shall collaterally
assign, endorse and deliver to Landlord a three month United States Treasury
Bill(s) in the aggregate amount of $250,000 (hereinafter referred to together
with any replacement thereof as the "Treasury Bill(s)"), as security for the
prompt, full and faithful performance by Tenant of each and every provision of
this Lease and of all obligations of Tenant hereunder. If Tenant fails to
perform any of its obligations hereunder, Landlord may use, apply, or retain in
whole or any part of the proceeds from the Treasury Bill(s) ("Treasury Bill(s)
Proceeds") for the payment of (a) any rent or other sums of money which Tenant
may not have paid when due, (b) any sum expanded by Landlord oil Tenant's behalf
in accordance with the provisions of this Lease, and/or (c) any damages which
Landlord may sustain or sums which Landlord may extend or be required to expend
by reason of Tenant's default, including, without limitation, any damage or
deficiency in or from the reletting of the Premises as provided in Paragraph 21.
The use, application or retention of the Treasury Bill(s) Proceeds, or any
portion thereof, by Landlord, shall not prevent Landlord from exercising any
other right or remedy provided by this Lease or by law (it being intended that
Landlord shall not first be required to proceed against the Treasury Bill(s) or
the Treasury Bill(s) Proceeds) and shall not operate as a limitation or any
recovery to which Landlord may otherwise be entitled. If Tenant shall fully,
faithfully and timely comply with all of the provisions of this Lease for one
(1) year following the Commencement Date, Tenant shall be permitted to replace
the Treasury Bill(s) with three month United States Treasury Bill(s) in the
aggregate amount of $150,000, and if the Tenant shall fully, faithfully and
timely comply with all the provisions of this Lease during each six month period
thereafter, Tenant shall be permitted to replace the Treasury Bill(s) then held
by the Landlord with three month United States Treasury Bill(s) in an amount
which is, in the aggregate, $50,000 less than the aggregate amount of the
Treasury Bill(s) then held by the Landlord. In the absence of evidence
satisfactory to Landlord of any permitted assignment of the right to receive the
Treasury Bill(s)
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or Treasury Bill(s) Proceeds, Landlord may return the same to the original
Tenant, regardless of one or more assignments of Tenant's interest in this Lease
or the Treasury Bill(s) or the Treasury Bill(s) Proceeds. In such event, upon
return of the Treasury Bill(s) or such portion of the Treasury Bill(s) Proceeds
to the original Tenant, Landlord shall be completely relieved of liability under
this subparagraph 26(m)(ii) or otherwise with respect to the Treasury Bill(s) or
any portion of the Treasury Bill(s) Proceeds. Tenant acknowledges that
Landlord has the right to transfer or mortgage its interest in the Property and
in this Lease and Tenant agrees that in the event of any such transfer or
mortgage, Landlord shall have the right to transfer or assign the Treasury
Bill(s) or the Treasury Bill(s) Proceeds to the transferee or mortgagee. Upon
written acknowledgment of transferee's or mortgagee's receipt of the Treasury
Bill(s) or Treasury Bill(s) Proceeds, Landlord shall be released by Tenant from
any liability or obligation for return of such Treasury Bill(s) or Treasury
Bill(s) Proceeds, and Tenant shall look solely to such transferee or mortgagee
for the return of the Treasury Bill(s) or Treasury Bill(s) Proceeds. The
Treasury Bill(s) and the Treasury Bill(s) Proceeds shall not be mortgaged,
assigned or encumbered in any manner whatsoever by Tenant.
(n) GOVERNING LAW; PARTIAL INVALIDITY. This Lease shall be governed
and construed in accordance with the law of the state in which the Premises is
located. If any term, provision of condition contained in this Lease shall, to
any extent, be invalid or unenforceable, the remainder of this Lease (or the
application of such term, provision or condition to persons or circumstances
other than those in respect of which it is invalid or unenforceable) shall not
be affected thereby, and each and every other term, provision and condition of
this Lease shall be, valid and enforceable to the fullest extent possible
permitted by law.
(o) HAZARDOUS MATERIALS.
(i) Tenant shall not store highly flammable materials or
goods, explosives, perishable foodstuffs, contraband, live animals, materials
or goods which emit odors in or upon the Premises. The Tenant covenants that
it shall not store, use or possess nor permit the storage, use or possession
of any Hazardous Substance (hereinafter defined) upon the Premises.
Hazardous Substance for purposes of this Lease shall mean, without
limitation, any flammable explosives, radon, radioactive materials,
asbestos, urea-formaldehyde foam insulation, polychlorinated biphenyls,
petroleum and petroleum based products, methane, hazardous materials,
hazardous wastes, hazardous or toxic substances or related materials, as
defined in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. Sections 9601 et seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Section 1801,
et seq.), Sections 6901, et seq.), the Toxic Substances Control Act, as
amended (15 U.S.C. Sections 2601 et seq.), or any other similar law, rules,
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 partners, employees and agents from and against
any all damages, losses, liabilities, obligations, penalties, claims,
litigation, demands, defenses, judgments, suites, 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 impose upon, incurred by or asserted
or awarded against the Landlord, its partners, 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 paragraph shall survive any expiration and/or
termination of this Lease.
(ii) Landlord represents to Tenant, to the best of its actual
knowledge, that there are no Hazardous Materials (other than office building
equipment and cleaning supplies used in accordance with industry standards and
governmental requirements) in the Building, and the Landlord shall comply with
all statutes, rules, orders, regulations and requirements the federal, state,
county and city governments and all departments thereof applicable to the
presence, storage, use, maintenance or removal of Hazardous Materials in or
about the Building, which presence, storage, use, maintenance or removal is
caused or permitted by Landlord. Notwithstanding the foregoing, Tenant shall
have the right to use office equipment
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and cleaning supplies that may be Hazardous Materials, so long as such are used
in accordance with industry standards and governmental requirements. In the
event the representation contained in this subparagraph becomes materially
untrue or incorrect, and the existence of such condition either (y) violates
applicable Environmental Laws, or (z) materially and adversely affects the
Tenant's use and enjoyment of the Premises, the Landlord shall be permitted
thirty (30) days after receipt of written notice from the Tenant to bring the
Building into compliance with applicable Environmental Laws to provide
reasonable evidence of the same to the Tenant; provided, however, in the event
such compliance or registration cannot reasonably be completed or obtained
within such thirty (30) days, Landlord will not be in default hereunder provided
the Landlord commences such corrective action within said thirty (30) days and
diligently pursues the same to completion.
27. TELEPHONE AND TELECOMMUNICATIONS SERVICE.
(a) Tenant acknowledges and agrees that all telephone and
telecommunications services ("Telecommunications Services") desired by Tenant
shall be ordered and utilized at the sole expense of Tenant. Unless Landlord
otherwise requests or consents in writing, all equipment, apparatus and devices,
including without limitation wiring and cables, for the provisions of
Telecommunications Services (the "Telecommunications Equipment") shall be and
remain solely in the Leased Premises. Unless otherwise specifically agreed in
writing, Landlord shall have no responsibility for the maintenance of Tenant's
Telecommunications Equipment, nor for any wiring or other infrastructure to
which Tenant's Telecommunications Equipment may be connected. Tenant agrees
that, to the extent any Telecommunications Services are interrupted, curtailed
or discontinued, Landlord shall have no obligation or liability with respect
thereto and it shall be the sole obligation of Tenant, at its sole expense, to
obtain substitute service.
(b) Landlord shall have the right, upon such notice as is practicable
in the case of emergencies, and otherwise upon reasonable prior notice to
Tenant, to interrupt or turn off telecommunications facilities in the event of
emergency or as necessary in connection with repairs to the Building or
installation of telecommunications equipment for other tenants of the Building.
(c) Any and all Telecommunications Equipment installed in the
Premises, or elsewhere in the Building by or on behalf of Tenant, including
wiring and other facilities for the provision of Telecommunications Services,
shall be removed by Tenant upon the expiration or earlier termination of the
Term of this Lease, by Tenant at its sole expense or, at Landlord's election, by
Landlord at Tenant's sole expense, with the cost thereof to be paid as
Additional Rent under this Lease.
(d) If the Telecommunications Equipment is not removed within thirty
(30) days of the termination or expiration of this Lease, the
Telecommunications Equipment shall conclusively be deemed to have been abandoned
and may be removed, appropriated, sold, stored, destroyed, otherwise disposed
of, or retained and used, by Landlord without notice to Tenant, without
obligation to account therefor, and without payment to Tenant or credit against
any amount due from Tenant to Landlord pursuant to this Lease. Tenant shall pay
to Landlord upon demand all costs of any such removal, disposition and storage
of the Telecommunications Equipment, as well as all costs to repair any damage
to the Building caused by such removal.
(e) In the event that Tenant wishes at any time to utilize the
services of a telephone or telecommunications provider whose equipment is not
then servicing the Building (a "New Provider"), no such New Provider shall be
permitted to install its lines or other equipment within the Building without
first securing the prior written approval of 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
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aspect of the New Provider's provision of its services, including, without
limitation, the costs of installation, materials and services; (ii) prior to
commencement of any work in or about the Building by the New Provider, the New
Provider shall supply Landlord with such written indemnities, insurance,
financial statements, and such other items as Landlord, in its sole and absolute
discretion, determines to be necessary to protect its financial interests and
the interests of the Building related to the proposed activities of the New
Provider; (iii) the New Provider agrees in writing to abide by such rules and
regulations, building and other codes, job site rules and such other
requirements as are determined by Landlord, in its sole and absolute discretion,
to be necessary to protect the interest of the Building, the tenants in the
Building and Landlord; (iv) Landlord determines, in its sole and absolute
discretion, that there is sufficient space in the Building for the placement of
all of the New Provider's equipment and materials; (v) Landlord receives from
the New Provider such compensation as is determined by the Landlord, in its sole
and absolute discretion, to compensate it for space used in the Building for the
storage and maintenance of the New Provider's equipment, for the fair market
value of the New Provider's access to the Building, and any costs which may be
expected to be incurred by Landlord; and (vi) all of the foregoing matters are
documented in a written agreement between Landlord and the New Provider, the
form and content of which are satisfactory to Landlord in its sole and absolute
discretion.
(f) Notwithstanding any provision of the preceding subsection to the
contrary, the refusal of Landlord the grant its approval to any New Provider
shall not be deemed a default or breach by Landlord of its obligation under this
Lease, and in no event shall Tenant have the right to terminate this Lease or
claim entitlement to rent abatement for Landlord's refusal to grant Tenant's
request for approval of a New Provider. The provisions of this 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 antenna and
satellite receiver dishes, within the Leased Premises or the Building, without
Landlord' prior written consent. Such consent shall be granted only in the
sole and absolute discretion of the Landlord, and shall be shall conditioned in
such a manner, in Landlord's sole and absolute discretion, so as to protect
Landlord's financial interests and the interests of the Building, and the other
tenants therein.
28. NOTICES. All notices to be given under this Lease shall be in writing
and delivered personally or deposited in the United States mail, certified or
registered mail with return receipt requested, postage prepaid, addressed as
follows:
If to Landlord:
Amerimar Realty Management Co.-Colorado
999 - 18th Street, Suite 1000
Denver, Colorado 80202
With a copy to:
Denver-Stellar Associates Limited Partnership
210 W. Rittenhouse Square, Suite 2000
Philadelphia, Pennsylvania 19103
or to such other person or such other address designed by notice sent by
Landlord or Tenant.
If to Tenant:
At the address set forth at the beginning of this Lease,
and after occupancy of the Premises by Tenant, at the Premises, or to such other
address as is designated by Tenant in a notice to Landlord; it being agreed that
if Tenant shall vacate the
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Premises, notices to Tenant thereafter shall nevertheless be properly given if
addressed to Tenant at the Premises unless and until another address is
designated by Tenant by notice to Landlord.
Notice by mail shall be deemed to have been given when deposited in
the United States mail as aforesaid.
29. TIME IS OF THE ESSENCE. Time is of the essence hereof.
IN WITNESS WHEREOF, Landlord and Tenant, intending to be legally bound
hereby, have executed this Agreement of lease as of the day and year first
above written.
LANDLORD:
DENVER-STELLAR ASSOCIATES
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Amerimar Realty Management Co. -
Colorado
By: Amerimar Realty Management-
Pennsylvania, its general
partner
By: ARC-Management
Company, its general
partner
By: /s/ David G. Marshall
-------------------------------------
David G. Marshall, President
TENANT:
ROCKY MOUNTAIN INTERNET, INC.,
a Delaware corporation
By: /s/ illegible
-------------------------------------
Authorized Signature
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ADDENDUM
THIS ADDENDUM, made as of the 17th day of September, 1996, is between
DENVER-STELLAR ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership
("Landlord") and ROCKY MOUNTAIN INTERNET, INC., a Delaware corporation
("Tenant"). Landlord and Tenant have executed simultaneously with this Addendum
that certain Denver Place Office Lease (the "Lease") pertaining to certain space
in the building commonly known as Denver Place and located at 1099 Eighteenth
Street, Denver, Colorado. In the event of any conflict between the provisions
of this Addendum and the provisions of the other portions of the lease, the
provisions of this Addendum shall control. The capitalized terms used herein
and not defined herein shall have the same meanings used in the other portions
of the Lease. Landlord and Tenant hereby agree that the Lease is amended and
supplemented as follows:
30. COMPLETION OF PREMISES.
(a) 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
space plan prepared by Waring McLaughlin, Inc. dated July 22, 1996 (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 constriction, 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).
(b) 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 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 Base Rent and Tenant's
Share of Operating Expenses 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 completion
of any work to be done by Landlord (hereinafter a "Tenant Delay") including,
without limitation, (a) any delay which is caused by changes in the work to be
performed by Landlord in readying the Premises for Tenant's occupancy, (b) any
delay, not caused by Landlord, 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. Notwithstanding any
provision contained in this Paragraph 30(b) to the contrary, in the event the
Premises are not Ready for Occupancy on or before February 15, 1997, for reasons
other than a Tenant Delay, Tenant shall have the right to elect to terminate
the Lease upon delivery of written notice to Landlord at any time after
February 15, 1997 and prior to the Premises being Ready for Occupancy. "Ready
for Occupancy" shall mean the date on which Landlord has obtained a certificate
or approval from the City and County of Denver permitting Tenant's occupancy of
the Premises. After Landlord's Work has been substantially completed, Landlord
<PAGE>
shall give Tenant not less than five (5) days written notice of the date on
which Landlord anticipates that the Premises will be Ready for Occupancy so that
Tenant can schedule inspection of the Premises and Tenant's move. Within ten
(10) days after the date the Premises are Ready for Occupancy Tenant and
Landlord shall prepare a mutually agreed upon list ("Punch List") of items of
the Landlord's Work which need to be corrected or repaired. Landlord agrees to
correct the items set forth on the Punch List within thirty (30) days after the
Punch List has been prepared.
31. RENEWAL OPTION. Tenant shall have the option to renew ("Renewal
Option") the term of the Lease for one (1) additional term of five (5) years
("Renewal Term"), commencing upon the expiration of the initial term of this
lease, on the condition that Tenant is not in material default of any of its
monetary obligations or other material obligations 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 Base Rent for the Leased 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 Base Rent
payable for the Renewal Term be less than the Base 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 at least six (6) months prior to the end 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.
32. RIGHT OF FIRST OFFER. Upon and subject to all the terms and
conditions set forth in this Paragraph 32, Landlord hereby grants to Tenant a
right of first offer (the "Right of First Offer") covering approximately
4,137 square feet of rentable area located upon the thirty-first (31st) floor
of the Building and which is depicted on EXHIBIT A-1 attached hereto (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 seven (7) 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 seven (7) 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 material default of any of its monetary obligations or other
material obligations under this Lease. Tenant's Right of First Offer shall be
subject and subordinate to any renewal rights, expansion options, rights of
first refusal, rights of first offer and similar rights previously granted by
Landlord to any other tenant or which are subsequently granted by the Landlord
to a tenant leasing any Offer Space, or portion thereof, after the Tenant has
declined to exercise its Right of First Offer.
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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 twenty (20) 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 Base 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 Base Rent payable
under this Lease immediately prior to the Designated Offer Space Commencement
Date on a per square foot of rentable area basis.
(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 Base 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, the 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 the Lease to be prepared by Landlord.
33. EMBASSY SUITES CONFERENCE ROOMS. Tenant shall have the option,
subject to availability, to use Embassy Suites Hotel and Athletic Club at Denver
Place ("Hotel") conference rooms for up to 200 people for a total of twelve
(12) days free of charge to Tenant. Thereafter, Tenant shall have the option to
use conference space at tile Hotel at the rate of $1.50 per person, not to be
less than $50.00 per day ("Conference Room Rental Rate"), for the remainder of
the Term of the Lease. The Conference Room Rental Rate shall include up to 8
hours use of the room plus the use of tables and chairs. Any audio visual
equipment or other requirements will be an additional expense to the Tenant.
34. LANDLORD'S DEFAULT. A "Default by Landlord" shall exist hereunder if
Landlord breaches or fails to comply with any agreement, term, covenant or
condition in this Lease applicable to Landlord and such breach or failure to
comply continues for a period of thirty (30) days after the receipt by Landlord
and by the holder of any mortgage or deed of trust covering the Premises, the
Real Property or any portion thereof of whose address Tenant has been
notified in writing (a "Landlord's Mortgagee"), if any, of a written notice
thereof referring to this Paragraph 34 and specifying such failure and requiring
it to be remedied, or, if such breach or failure to comply cannot reasonably be
cured within such thirty (30) day period, if neither Landlord nor Landlord's
Mortgagee, if any, shall in good faith commence to cure such breach or failure
to comply within such thirty (30) day period or shall not diligently proceed
therewith to completion. In the event of a Default by Landlord, Tenant may,
except as otherwise expressly provided in this Lease, bring a separate action
against Landlord for any claim Tenant may have against Landlord under this
Lease. In no event will Landlord be responsible for any consequential or
punitive damages incurred by Tenant, including, but not limited to, loss of
profits or interruption of business as a result of any Default by Landlord
hereunder. Further, Tenant shall have no right to withhold such amounts or
offset against rent or any other amounts
3
<PAGE>
due under this Lease until after final adjudication by a court of competent
jurisdiction and unless the Landlord has failed to post a bond in an amount
equal to or greater than the amount due under such final adjudication.
35. TENANT'S RIGHT TO USE EXISTING EQUIPMENT.
(a) Landlord and Tenant acknowledge that a five ton and three ton Libert
airconditioning units are currently located in the ceiling area of the Premises
("Existing Airconditioning Units"). Landlord agrees not to rernove the Existing
Airconditioning Units and agrees to permit the Tenant to use the Existing
Airconditioning Units at Tenant's option, provided that:
(i) the Existing Airconditioning Units are provided in their "AS
IS" condition without any representation or warranty (expressed or implied)
concerning their merchantability or fitness for any particular use and/or
purpose;
(ii) Tenant shall comply with the provisions set forth in
subparagraph 7(b)(ii) and Paragraph 8 with respect to any alterations or
modifications to any of the Existing Airconditioning Units;
(iii) Tenant shall be solely responsible for the repair and
maintenance of the Existing Airconditioning Units;
(iv) At Landlord's election, Tenant shall remove the Existing
Airconditioning Units from the Premises upon the expiration of the Term of
the Lease; and
(v) Tenant shall be required to pay for all electrical energy used
in the operation of the Existing Airconditioning Units in accordance with the
provisions of subparagraph 7(a)(ii);
(b) Landlord and Tenant acknowledge that the Premises currently contain
computer racking and cabling (collectively "Computer Equipment"). Landlord
agrees not to remove the Computer Equipment and Tenant shall be permitted to use
the Computer Equipment at its option provided that:
(i) the Computer Equipment is provided in its "AS IS" condition
without any representation or warranty (expressed or implied) concerning their
merchantability or fitness for any particular use and/or purpose;
(ii) Tenant shall comply with the provisions set forth in
subparagraph 7(b)(ii) and Paragraph 8 with respect to any alterations or
modifications of the Computer Equipment; and
(iii) Tenant shall be solely responsible for the repair and
maintenance of the Computer Equipment; and
(iv) at Landlord's election, Tenant shall remove the Computer
Equipment from the Premises upon the expiration of the Term of the Lease.
4
<PAGE>
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.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be duly
executed as of the day and year first above written.
LANDLORD:
DENVER-STELLAR ASSOCIATES
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Amerimar Realty Management Co.-
Colorado
By: Amerimar Realty Management-
Pennsylvania, its general
partner
By: ARC-Management
Company, its general
partner
By: /s/ David G. Marshall
-------------------------------------
David G. Marshall, President
TENANT:
ROCKY MOUNTAIN INTERNET, INC.,
a Delaware corporation
By: /s/ illegible
-------------------------------------
Authorized Agent
5
<PAGE>
E X H I B I T A-1
[Floor Plan}
<PAGE>
EXHIBIT B
RULES AND REGULATIONS
Rules and Regulations, to Lease between DENVER-STELLAR ASSOCIATES LIMITED
PARTNERSHIP, a Delaware limited partnership, as Landlord ("Landlord") and ROCKY
MOUNTAIN INTERNET, INC., a Delaware corporation, as tenant ("Tenant"),
pertaining to certain space in Denver Place Plaza Tower, 1099 - 18th Street,
Denver, Colorado 80202.
(a) Any sign, lettering, picture, notice, or advertisement installed
within Tenant's Premises which is visible to the public from within the
Building shall be installed at Tenant's cost and in such manner, character and
style as Landlord may approve in writing. No sign, lettering, picture, notice
or advertisement shall be placed on any outside window or in any position so
as to be visible from outside the Building.
(b) The use of the name of the Building or of pictures or illustrations of
the Building in advertising or other publicity, without prior written consent of
Landlord (which shall not be unreasonably withheld), is prohibited.
(c) Tenant, its subtenants and its and their customers, invitees,
licensees, and guests
(i) shall not obstruct and shall not use for any purpose other
than ingress and egress, the sidewalks, entrances, passages, courts, corridors,
vestibules, halls, elevators and stairways in and about the Building;
(ii) shall not place objects against glass partitions or doors or
windows or adjacent to any open common space which would be unsightly from
the Building corridors or from the exterior of the Building, and will
promptly remove the same upon notice from Landlord;
(iii) shall not make noises, cause disturbances, create vibrations,
odors or noxious fumes or use or operate any electrical or electronic devices or
other devices that emit sound waves or are dangerous to other tenants and
occupants of the Building or/that would interfere with the operation of any
device or equipment or radio or television broadcasting or reception from or
within the Building or elsewhere, and shall not place or install any
projections, antennae, aerials or similar devices inside or outside of the
Premises;
(iv) shall not make any room-to-room canvass to solicit business
from other tenants in the Building, and shall not exhibit, sell or offer to
sell, use, rent or exchange any item or services in or from the Premises unless
ordinarily embraced within the Tenant's use of the Premises as specified in its
lease;
(v) shall refrain from attempting to adjust any controls;
(vi) shall not waste, and shall not suffer or permit to be
wasted, electricity or water and shall cooperate fully with Landlord to assure
the most effective operation of the Building's heating and air conditioning;
(vii) sha11 keep public corridor doors closed;
(viii) shall neither install nor operate machinery or any mechanical
devices of a nature not directly related to Tenant's ordinary use of the
Premises without the written permission of the Landlord;
(ix) shall not use rest rooms or water fixtures for any purpose
other than that for which they are designed;
<PAGE>
(x) shall not mark upon, paint, cut, drill into, drive nails or
screws into, or in any way deface the walls, ceiling partitions or floors of the
leased Premises or of the Building;
(xi) shall not unduly obstruct any pipes, conduits and ducts in
the Premises; and
(xii) shall use chair pads, to be furnished by Tenant, under all
rolling and ordinary desk chairs in the carpeted areas.
(d) Tenant assumes full responsibility for protecting its space from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured.
(e) Peddlers, solicitors and beggars shall be reported to the office of
the Building or as Landlord otherwise requests.
(f) No person or contractor not employed by Landlord shall be used to
perform window washing, cleaning, or other work in the Premises.
(g) Unless Landlord so consents, Tenant shall not, and Tenant shall not
permit or suffer anyone to:
(i) Cook in the premises;
(ii) Place vending or dispensing machines of any kind in the
Premises; or
(iii) At any time sell, purchase or give away, or permit the sale,
purchase or gift of, food in any form.
(iv) Use the Premises for lodging or for any immoral or illegal
purposes.
(v) Use the Premises to engage in the manufacture or sale of, or
permit the use of, any spirituous, fermented, intoxicating or alcoholic
beverages on the Premises.
(vi) Use the Premises to engage in the manufacture or sale of, or
permit the use of, any illegal drugs.
(h) No furniture shall be placed in front of the building or in any lobby
or corridor, without the prior written consent of Landlord. Landlord shall have
the right to remove all non-permitted signs and furniture, without notice to
Tenant, at Tenant's expense.
(i) No animals are allowed in the Building.
(j) No lock or other security device shall be placed by Tenant on any door
in the Building without the Building manager being kept furnished with two of
the keys, cards or other means of access therefore. At the termination of its
tenancy, Tenant shall promptly deliver to Landlord all keys, entry cards and
other means of access to offices, rest rooms and vaults.
(k) The use of oil, gas or inflammable liquids for heating, lighting, or
any other purpose is expressly prohibited. Explosives or other hazardous
articles shall not be brought into the Building.
(l) Electric floor space heaters, humidifiers or A/C fans are not
permitted.
(m) Landlord shall have the right to approve or disapprove the movers or
moving company employed by Tenant. Tenant shall cause said movers to use only
the loading
<PAGE>
facilities and elevator designated by Landlord. In the event Tenant's movers
damage the elevator or any part of the Building, Tenant shall forthwith pay to
Landlord the amount required to repair said damage.
(n) If any Tenant desires telegraphic, telephonic, computer or other
electric connections, Landlord, or its agents, will direct the electricians as
to where and how the wires may be introduced, and without such directions, no
boring or cutting for wires will be permitted. Any such installation and
connection shall be made at Tenant's expenses, and, at Landlord's option, shall
be removed at Tenant's expense at the expiration or termination of its Lease.
(o) Except for the following smoking areas specifically designated by
Landlord, the outdoor Plaza level of 1099 - l8th Street, the outdoor areas at
the corner of 18th and Champa and 19th and Curtis and the Smoke Haus in the
mall, all common areas of the building, including all sidewalks, entries,
passages, stairways, elevators, restrooms, lobbies and hallways, shall be
non-smoking areas. Tenant shall be responsible to prevent its employees, and
agents, visitors, customers and guests from smoking in such common areas and
shall use reasonable efforts to prevent its customers and guests from smoking in
such common areas.
(p) During the normal office hours of 6:00 a.m. to 6:00 p.m., Monday
through Friday, Tenant and its employees and agents shall observe the building
dress code, which requires a neat and clean appearance and prohibits the wearing
of cutoffs and ragged, torn, ripped, rent or holey apparel.
(q) The Landlord reserves the right to modify and make such other and
further reasonable rules and regulations as in its judgment may, from time to
time, be needful and desirable for the safety, security, care and cleanliness of
the Premises and preservation of good order and therein.
<PAGE>
EXHIBIT "C"
LEASE TERM AGREEMENT
THIS AGREEMENT, made as of the __________ Day of ________________________,
1996, between DENVER-STELLAR ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited
partnership (hereinafter referred to as "Landlord") and ROCKY MOUNTAIN INTERNET,
INC., a Delaware corporation (hereinafter referred to as "Tenant").
WITNESSETH
WHEREAS, by Lease (hereinafter called "Lease") made the 17th day of
September, 1996, Landlord leased unto Tenant certain premises known as Suite
Number 126, located at 1099 Eighteenth Street, Denver, Colorado, for a term of
five (5) years, four (4) months and zero (0) days commencing on October 15,
1996, unless sooner terminated or extended as provided therein, and
WHEREAS, Landlord and Tenant now desire to set forth the correct
Commencement Date of the term and to adjust the Expiration Date of the Term to
provide for a full term of the Lease of ______ years, _______________ months and
________ days.
NOW, THEREFORE, Landlord and Tenant do hereby agree as follows:
1. The Term of the Lease commenced on_________________, 19___, and shall
continue until_____________________,______, unless sooner terminated
or extended as provided therein.
2. Except as hereby amended, the Lease shall continue in full force and
effect.
3. This Agreement shall be binding on the parties hereto, their heirs,
executors, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
LANDLORD:
DENVER-STELLAR ASSOCIATES
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Amerimar Realty Management Co.-
Colorado
By: Amerimar Realty Management-
Pennsylvania, its general
partner
By: ARC-Management Company,
its general partner
By:
-------------------------------------
David G. Marshall, President
TENANT:
ROCKY MOUNTAIN INTERNET, INC.,
a Delaware corporation
By: /s/ illegible
-------------------------------------
Authorized Agent
<PAGE>
EXHIBIT "D"
PARKING AGREEMENT
DENVER-STELLAR ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited
partnership, as Landlord, and ROCKY MOUNTAIN INTERNET, INC., a Delaware
corporation, as Tenant, have executed simultaneously with this Agreement a Lease
(hereinafter called "Lease") pertaining to certain space at 1099 Eighteenth
Street to be occupied by Tenant. In consideration of the mutual covenants
herein contained, Landlord and Tenant further agree as follows:
The Building in which the Premises are located contains a parking garage
for the benefit of Tenants and the general public (hereinafter called "Parking
Garage"). Landlord does not operate or manage the Parking Garage, but maintains
a management agreement with an independent contractor (hereinafter called
"Operator") for the management and operation of the Parking Garage. In order to
rent parking spaces in the Parking Garage, Tenant must contract separately with
the Operator for such rentals. Landlord shall make available for Tenant and
Tenant shall have a non-assignable option to rent from the Operator for twenty
(20) parking spaces located in the Denver Place beginning upon occupancy of the
Premises and at prevailing market rates charged by the Operator of the Parking
Garage; provided, however, that for the first year following the Commencement
Date, Tenant shall pay to Landlord as the rental for such parking space on
or before the first anniversary of the Commencement Date the product of (i)
$115.00 multiplied by (ii) the number of parking spaces reserved by Tenant
hereunder multiplied by (iii) the number of months such parking spaces were
reserved by Tenant. The parking spaces shall be available for a period expiring
thirty (30) days after the Commencement Date of the Lease. Tenant must exercise
its option within this period by renting the parking spaces directly from the
Operator.
Except as provided in the paragraph above for the first year following the
Commencement Date, the terms and conditions of Tenant's rental shall be governed
and fixed solely by the rental agreement between Tenant and Operator, however,
Tenant's failure to comply with any term of any such rental agreement shall
constitute a default under the Lease. Landlord's holding of parking spaces
shall not constitute any assumption of and Tenant hereby releases Landlord from
any and all liability with respect to such rentals, and any and all damage, loss
or injury with respect to such rentals shall be at the sole risk of Tenant
unless otherwise provided by Operator under the rental agreement.
The provisions of this Agreement supplement but are subject to all
provisions of the Lease. Capitalized terms not otherwise defined in this
Agreement have the same meaning as the same terms have in the Lease.
LANDLORD:
DENVER-STELLAR ASSOCIATES
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Amerimar Realty Management Co.-Colorado
By: Amerimar Realty Management-
Pennsylvania, its general partner
By: ARC-Management
Company, its general
partner
By: /s/ David G. Marshall
-----------------------------------
David G. Marshall, President
TENANT:
ROCKY MOUNTAIN INTERNET, INC., a
Delaware corporation
By: /s/
------------------------------------
Authorized Agent
<PAGE>
EXHIBIT "E"
SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of September 17, 1996, is entered into by
and between ROCKY MOUNTAIN INTERNET, INC., a Delaware corporation ("Debtor") and
DENVER-STELLAR ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership
("Secured Party"). For good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereby agree as follows:
1. DEFINITIONS.
(a) "Lease" means that certain Denver Place Plaza Tower Agreement of
Lease dated September 17, 1996 between Debtor as tenant and Secured Party
as landlord concerning those premises known as Suite 3000, 1099 - 18th
Street, Denver, Colorado 80202 and all amendments thereto.
(b) "Collateral" means and includes that personal property,
furniture, fixtures and equipment owned by Debtor and now or hereafter
located upon the Premises, including, but not limited to, those items
described on EXHIBIT A attached hereto and incorporated herein by this
reference, together with any additions, substitutions, accessions, and
replacements hereto and any proceeds therefrom.
(c) "Security Agreement" means this Security Agreement, either as
originally executed or as amended, modified or supplemented from time to
time.
(d) This Security Agreement is delivered pursuant to the Lease and
all terms used herein and not defined herein shall have the same meanings
as defined in the Lease, the definitions of which are hereby incorporated
by this reference.
2. GRANT OF SECURITY INTEREST. As security for the payment and
performance of Debtor's obligations under the Lease, Debtor by this Security
Agreement assigns, grants, pledges and transfers to Secured Party a security
interest in and to all of the Collateral.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. At all times, Debtor
represents, warrants and covenants to Secured Party that:
(a) Its office and place of business is located at Suite 3000, 1099 -
18th Street, Denver, Colorado 80202, and the Collateral shall at all times
be kept thereon.
(b) The Collateral is and at all times shall remain subject only to
the lien created hereby and the accompanying financing statement and shall
not be subject to any other liens or encumbrances, and Debtor, at its own
expense, will defend the Collateral against the claims and demands of all
persons other than the Secured Party.
(c) Debtor shall execute and deliver to Secured Party any financing
statements, documents or agreements that Secured Party believes to be
necessary or appropriate for the creation, perfection, protection and/or
maintenance of any lien contemplated by this Security Agreement.
(d) The Debtor shall, at Debtor's cost, maintain the Collateral in
good order and repair. Debtor shall promptly pay all costs, expenses, and
obligations of every kind and nature incurred in connection with the use,
maintenance, servicing, repair, or operation of the Collateral which may
arise or be payable during the term of this Security Agreement.
<PAGE>
(e) Any insurance proceeds related to the Collateral and received by
Debtor shall be reinvested in business assets of a like kind, and shall
become part of the Collateral.
(f) The Debtor is a validly existing corporation in good standing
under the laws of the State of Colorado.
4. SECURED PARTY'S REMEDIES UPON EVENT OF DEFAULT.
(a) Upon the Debtor's failure to perform its obligations under the
Lease, Secured Party may, at its option, declare any claim for damages
under the Lease due and payable and shall have all rights and remedies of
a secured party under the Uniform Commercial Code or other applicable law.
Any indebtedness declared due under this paragraph 4(a) shall bear
interest at the rate of eighteen percent (18 %) per annum.
(b) To the extent Debtor is required by law to give notice prior to
the exercise of such remedies, and in the event that sale or other
disposition of non-cash portions of the Collateral is necessary for the
satisfaction of the Debtor's obligations five (5) days' prior written
notice of the time and place of any public sale of non-cash portions of the
Collateral or of the time after which any private sale or any other
intended disposition thereof is to be made shall be reasonable notice to
Debtor.
(c) Except to the extent prohibited by law, Debtor shall, upon
request, pay Secured Party for all expenses, including without limitation
reasonable attorneys' fees and legal expenses, which Secured Party may
from time to time hereafter reasonably pay or incur: (i) in connection with
any effort or action (whether or not litigation is involved) to enforce or
defend any of Secured Party's rights under this Security Agreement, the
Lease, or (ii) in order to secure title to, or to preserve, or to protect
Secured Party's interest in, or to realize upon all or any part of the
Collateral, including any sale of non-cash portions of the Collateral as
may be required to satisfy the Debtor's obligations.
(d) Any and all proceeds of the disposition, pursuant to the Code, of
the Collateral, or any part thereof, shall be applied in the following
order of priority: (i) to pay the reasonable expenses of retaking, holding,
preparing for sale, selling, and the like, and, to the extent provided for
in this Security Agreement and not prohibited by law, the reasonable
attorneys' fees and legal expenses incurred by Secured Party; (ii) then to
pay any amounts due under the terms of the Lease; and (ii) then any
surplus shall be paid in accordance with applicable statutory law or court
order to such persons or entities as are entitled thereto.
5. WAIVER. Failure by secured Party to exercise any right, remedy or
option provided for herein, or in the Lease, or in any other present or future
agreement between Secured Party and Debtor, or delay by Secured Party in
exercising the same, will not operate as a waiver. No waiver by Secured Party
will be effective unless it is in writing. The rights and remedies of Secured
Party herein are cumulative and not exclusive of any other right or remedy which
Secured Party may have. ALL RIGHTS TO A TRIAL BY JURY IN ANY LITIGATION
RELATING TO THIS SECURITY AGREEMENT ARE WAIVED BY SECURED PARTY AND DEBTOR.
6. NOTICES. All notices or demands by either party to the other relating
to this Security Agreement shall be in writing and shall be given and deemed
received in the manner provided for in the Lease.
7. GOVERNING LAW. This Security Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
2
<PAGE>
8. CONTROLLING PROVISIONS. In the event any term, provision or condition
contained in this Security Agreement is contrary to or conflicts with any term,
provision or condition of the Lease, the conflicting term, provision or
condition of this Security Agreement shall control and prevail.
IN WITNESS WHEREOF, the parties to this Security Agreement have caused same
to be executed as of the date first set forth above.
DEBTOR:
ROCKY MOUNTAIN INTERNET, INC.,
a Delaware corporation
By: /s/ President & CEO
-------------------------------
(Title)
SECURED PARTY:
DENVER-STELLAR ASSOCIATES
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Amerimar Realty Management Co.-
Colorado
By: Amerimar Realty Management
Pennsylvania, its general
partner
By: ARC-Management
Company, its general
partner
By: /s/ David G. Marshall
----------------------------------
David G. Marshall, President
3
<PAGE>
EXHIBIT A
Description OF Collateral
All articles of personal property, furniture, fixtures and equipment and any
additions to, substitutions for, changes in or replacements of the whole or any
part thereof which now or at any time hereafter are affixed to, attached to,
placed upon or used in any way in connection with the use, enjoyment, occupancy
or operation of the Debtor's business at 1099 - 18th Street, Suite 3000, Denver,
Colorado 80202 or any portion thereof, including without limitation all
computers, printers, computer terminals, keyboards, wordprocessors, monitors,
video equipment, file cabinets, filing systems, computer software, furniture,
desks, work stations, partitions, credenzas, lamps, tables, chairs, couches,
shelving, counters, partitions, window coverings, venetian blinds, light
fixtures, drapery rods and brackets, coat hangers, screens, floor coverings,
carpets, rugs, plumbing fixtures, dishwashers, ovens, ice boxes, refrigerators,
communication systems, telecommunication systems, telephones, copiers,
telecopiers, fax machines, cabling, televisions, radios, video recorders,
stereos, compact disk players, speakers, wall hangings, artwork, sculptures,
electrical appliances, office supplies, frames, mirrors, footstools, ladders,
wastebaskets, carts, typewriters, and safes. All of Debtor's right, title and
interest, now owned or hereafter acquired, in and to all "proceeds" and
"products" (as such terms are defined in Article 9 of the UCC) of the foregoing
collateral, and, to the extent not otherwise included herein: (i) any and all
proceeds of any insurance, causes and rights of action, settlements thereof,
judicial, administrative and arbitration judgments and awards, indemnity,
warranty or guaranty payable to the Debtor from time to time with respect to any
of the foregoing collateral; (ii) any and all payments (in any form whatsoever)
made or due and payable to the Debtor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the foregoing collateral by any governmental authority; (iii) all claims
of the Debtor for losses or damages arising out of or related to or for any
breach of any agreement, covenant, representation or warranty or any default
under any of the foregoing collateral without limiting any direct or
independent rights of the Secured Party with respect to the foregoing
collateral); and (iv) any and all other amounts from time to time paid or
payable under or in connection with any of the foregoing collateral.
4
<PAGE>
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE WITH CONSENT AND REAFFIRMATION BY GUARANTOR
("First Amendment") is made and entered into as of this 18th day of October,
1996, by and between DENVER-STELLAR ASSOCIATES LIMITED PARTNERSHIP, a Delaware
limited partnership (hereinafter called "Landlord"), and ROCKY MOUNTAIN
INTERNET, INC., a Delaware corporation (hereinafter called "Tenant").
RECITALS
A. Landlord and Tenant entered into that certain Denver Place Plaza Tower
Agreement of Lease dated as of September 17, 1996 (the "Lease"), pursuant to
which Tenant leased approximately 19,489 square feet of rentable area on the
30th floor known as Suite 3000 of the office building known as Denver Place
Plaza Tower, located at 1099 18th Street, Denver, Colorado 80202 (the
"Building").
B. Landlord and Tenant are the sole parties in interest under the Lease.
C . Tenant and Landlord are desirous of modifying certain provisions of the
Lease pertaining to additional security to be provided by Tenant.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Landlord and Tenant hereby amend the Lease as follows:
1. ADDITIONAL SECURITY. Subparagraph 26(m)(ii) of the Lease is amended to
provide in its entirety as follows:
(ii) [A] As security for the full and faithful performance of
every provision of this Lease to be performed by Tenant, Tenant shall
deposit with Landlord on or before October 21, 1996, an irrevocable
transferable demand letter of credit, in the form attached hereto as
EXHIBIT A (the "Letter of Credit") or such other form as reasonably agreed
to by Landlord, for a twelve (12) month term, from a financial institution
acceptable to Landlord, in the amount of Two Hundred Fifty Thousand and
No/100 Dollars ($250,000.00). Tenant shall cause the Letter of Credit to be
renewed annually at least sixty (60) days prior to its expiration. In the
event the Letter of Credit is not renewed at least sixty (60) days prior to
expiration or replaced or reissued within a reasonably acceptable financial
institution within thirty (30) days prior to expiration, Landlord shall be
entitled to draw upon the then outstanding Letter of Credit for the entire
amount thereof, notwithstanding that Tenant may then be current in the
payment of rent under the Lease and no other default has occurred. All
amounts drawn shall be held and applied as an addition to the Deposit
pursuant to the provisions of Paragraph 24 of this Lease. If for any
reason the financial institution will not honor the Letter of Credit in its
full amount, then Tenant shall, within ten (10) days of receipt of notice
from Landlord, deliver to Landlord a new Letter of Credit with a financial
institution reasonably satisfactory to Landlord, on the same terms and
conditions as are set forth
<PAGE>
herein, or certified funds in the amount of the Letter of Credit to be held
by Landlord on the same terms as if Landlord had drawn upon the Letter of
Credit.
[B] If Tenant fails to perform any of its obligations hereunder,
including, but not limited to, the provisions relating to the payment of
rent or if Tenant fails to deliver a new Letter of Credit in accordance
with the provisions hereof, then Landlord may draw upon the full amount of
the respective Letter of Credit. The proceeds shall be deemed an addition
to the Deposit and Landlord may use, apply, or retain all or any part of
such proceeds for the payment of (a) any rent or other sums of money which
Tenant may not have paid when due, (b) any sum expended by Landlord on
Tenant's behalf in accordance with the provisions of this Lease, and/or (c)
any damages which Landlord may sustain or sums which Landlord may extend or
be required to expend by reason of Tenant's default, including, without
limitation, any damage or deficiency in or from the reletting of the
Promises as provided in Paragraph 21. The use, application or retention of
the Letter of Credit or proceeds therefrom, or any portion thereof, by
Landlord, shall not prevent Landlord from exercising any other right or
remedy provided by this Lease or by law (it being intended that Landlord
shall not first be required to proceed against the Letter of Credit or the
proceeds therefrom) and shall not operate as a limitation on any recovery
to which Landlord may otherwise be entitled. Landlord shall not draw upon
the Letter of Credit prior to giving Tenant notice of default and
opportunity to cure to the extent provided in Paragraph 21 of this Lease,
unless the notice and/or cure period extends into the last sixty (60) days
of the Letter of Credit, in which event Landlord may immediately make
demand upon the Letter of Credit and hold and apply the proceeds as an
addition to the Deposit. If any portion of the proceeds of the Letter of
Credit is to be used or applied, Tenant shall, within five (5) days after
written demand therefor, deposit cash with Landlord in an amount sufficient
to restore the security held by Landlord to its original amount, and
Tenant's failure to do so shall be a material breach of this Lease.
Landlord shall not be required to keep any proceeds received from Tenant or
from the Letter of Credit separate from its general funds, and Tenant shall
not be entitled to interest on any such deposit.
[C] Upon expiration of the twelfth (12th) calendar month after the
Commencement Date of this Lease, provided Tenant shall have fully,
faithfully and timely complied with all the provisions of this Lease, then
Tenant may either deliver to Landlord (i) a new letter of credit upon the
same terms as set forth herein except the amount of such letter of credit
shall be equal to $150,000 or (ii) an additional cash security deposit in
the amount of $150,000. Upon expiration of the eighteenth (18th) calendar
month after the Commencement Date of this Lease, provided Tenant shall have
fully, faithfully and timely complied with all the provisions of this
Lease, then Tenant may either deliver to Landlord (i) a new letter of
credit upon the same terms as set forth herein except the amount of such
letter of credit shall be equal to $100,000 or (ii) an additional cash
security deposit in the amount of $100,000. Upon expiration of the
twenty-fourth (24th) calendar month after the Commencement Date of this
Lease, provided
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Tenant shall have fully, faithfully and timely complied with all the
provisions of this Lease, then Tenant may either deliver to Landlord (i) a
new letter of credit upon the same terms as set forth herein except the
amount of such letter of credit shall be equal to $50,000 or (ii) an
additional cash security deposit in the amount of $50,000. Upon expiration
of the thirtieth (30th) calendar month after the Commencement Date of this
Lease, provided Tenant shall have fully, faithfully and timely complied
with all the provisions of this Lease, Tenant shall have no further
obligation to deliver a new letter of credit and Landlord agrees to deliver
to Tenant any Letter of Credit or proceeds therefrom then held by Landlord.
[D] In the absence of evidence satisfactory to Landlord of any
permitted assignment of the right to receive the Letter of Credit or
proceeds therefrom, Landlord may return the same to the original Tenant,
regardless of one or more assignments of Tenant's interest in this Lease or
the Letter of Credit or proceeds therefrom. In such event, upon return of
the Letter of Credit or proceeds therefrom to the original Tenant, Landlord
shall be completely relieved of liability under this subparagraph 26(m)(ii)
or otherwise with respect to the Letter of Credit or proceeds therefrom.
Tenant acknowledges that Landlord has the right to transfer or mortgage its
interest in the Property and in this Lease and Tenant agrees that in the
event of any such transfer or mortgage, Landlord shall have the right to
transfer or assign the Letter of Credit or the proceeds therefrom to the
transferee or mortgagee. Upon written acknowledgment of transferee's or
mortgagee's receipt of the Letter of Credit or proceeds therefrom, Landlord
shall be released by Tenant from any liability or obligation for return of
such Letter of Credit or proceeds therefrom, and Tenant shall look solely
to such transferee or mortgagee for the return of the Letter of Credit or
proceeds therefrom. The Letter of Credit and the proceeds therefrom shall
not be mortgaged, assigned or encumbered in any manner whatsoever by
Tenant.
2. BINDING EFFECT. This First Amendment becomes effective only upon the
execution by Landlord and Tenant.
3. CONFLICT. If there is any conflict between the terms and provisions
of this First Amendment and the terms and provisions of the Lease, the terms and
provisions of this First Amendment shall govern. Except as herein specifically
set forth, all of the provisions of the Lease shall remain in full force and
effect and be binding upon the parties hereto.
4. DEFINITIONS. All capitalized terms used herein, but not defined
herein, shall have the same meanings given to such terms in the Lease unless
otherwise indicated.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this First
Amendment to Lease as of the day and year first above written.
LANDLORD:
DENVER-STELLAR ASSOCIATES
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Amerimar Realty Management Co.-
Colorado
By: Amerimar Realty Management-
Pennsylvania, its general
partner
By: ARC-Management
Company, its general
partner
By: /s/ David G. Marshall
-----------------------------------
David G. Marshall, President
TENANT:
ROCKY MOUNTAIN INTERNET, INC.,
a Delaware corporation
By: /s/
-----------------------------------
Authorized Signature
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ACQUISITION OF COMPUNERD, INC.
NOVEMBER 1, 1996
1 Asset Purchase Agreement
2. Bill of Sale
3. Assumption Agreement
4. Powers of Attorney
5. Stock Certificates
<PAGE>
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is made as of November 1,
1996, by and among ROCKY MOUNTAIN INTERNET, INC., a Delaware corporation
("Buyer"), and COMPUNERD, INC., a Colorado corporation ("Seller"), and Seller's
shareholders whose signatures appear at the end of this Agreement (the
"Shareholders").
Seller owns and operates a business providing Internet and Web services in
Colorado Springs, Colorado (the "Business"), Seller wishes to sell, and Buyer
wishes to buy, assets comprising the Business as provided in this Agreement.
In consideration of the terms, conditions and agreements stated in this
Agreement, the parties agree as follows:
AGREEMENT
I. THE ACQUISITION
1.1 PURCHASE AND SALE OF ASSETS. Subject to Section 1.2 regarding the
Excluded Assets, Seller sells, transfers, grants, conveys, assigns and delivers
("Transfers") to Buyer, and Buyer purchases and accepts from Seller, all of
Seller's rights, proper ties and assets comprising, used or useful in the
Business (collectively, the "Assets") free and clear of any Liens (as defined in
Section 4.6(i)), including, but not limited to, those items listed or described
on SCHEDULE 1.1.
1.2 EXCLUDED ASSETS. Notwithstanding anything contained in this Agreement
to the contrary, the following rights, properties and assets (collectively, the
"Excluded Assets") will not be included in the Assets:
(a) ACCOUNTS RECEIVABLE. All accounts receivable of Seller arising
from the conduct of the Business prior to the date of this Agreement (the
"Accounts Receivable"); and
(b) SELLER'S RIGHTS UNDER CONTRACTS. AU rights of Seller in the
leases, agreements and contracts (collectively, the "Excluded Contracts")
described on SCHEDULE 1.2(b).
II. PURCHASE PRICE
2.1 BASE PURCHASE PRICE. At Closing, Seller will Transfer the Assets to
Buyer and Buyer will pay Seller a combination of consideration as follows:
(a) Cash payment in the amount of $65,000; and
(b) 30,000 shares of Buyer's common stock, par value $.001 per share
(the "Share Consideration"). Certificates comprising the Share Consideration
will be issued in the name
<PAGE>
of such Shareholders, and in such denominations (not exceeding 30,000 shares in
the aggregate) as Seller shall specify.
2.2 CONTINGENT PAYMENT. Buyer will pay Seller a cash payment equal to
revenues generated, if any, by Darrell D. Judd, from work performed, billed and
collected by Buyer within 120 days of Closing (as defined in Section 6.1), for
the development of Web sites for the account of Stick Enterprises International
(including revenues which, in the reasonable opinion of the board of directors
of Buyer, are generated from other accounts but which are directly attributable
to work done for Stick Enterprises International). In no case will Buyer be
required to make any payment in respect of revenues received more than 120 days
after Closing or any payments in excess of $15,000 in the aggregate, even if
actual revenues attributable to Stick Enterprises International are greater than
$15,000.
III. ASSUMPTION OF LIABILITIES
3.1 ASSUMED LIABILITIES. On the terms and subject to the conditions of
this Agreement, as of Closing, Buyer will assume and thereafter in due course
pay, perform and discharge the following, and only the following, liabilities
and obligations of Seller (the "Assumed Liabilities"): All liabilities and
obligations of Seller arising under the terms of the contracts that are listed
or specifically described on SCHEDULE 3.1 but only to the extent such
liabilities and obligations arise after the Closing Date (as defined in Section
6.1) under the terms of such contracts. Notwithstanding anything to the
contrary contained in this Agreement or any document delivered in connection
with it, Buyer's obligations with respect to the Assumed Liabilities will not
extend beyond the extent to which Seller was obligated with respect to them and
will be subject to Buyer's right to contest in good faith the nature and extent
of any liability or obligation.
3.2 RETAINED LIABILITIES. Except as specifically provided in Section 3.1,
Seller will retain, and Buyer will not assume, or be responsible or liable
with respect to, any liabilities or obligations of Seller or its predecessors,
whether or not arising out of or relating to the conduct of the Business or
associated with or arising from any of the Assets and whether fixed or
contingent or known or unknown.
IV. REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES OF SELLER. Seller and the Shareholders
represent and warrant to Buyer as of the date hereof as follows:
4.1 CORPORATE MATTERS. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Colorado and has
the requisite corporate power and authority to own, lease or otherwise hold the
Assets and to conduct the Business as presently conducted by it. Seller is duly
qualified to conduct business as a foreign corporation in each other
jurisdiction in which its ownership or lease of property or conduct of the
Business requires such
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qualification under applicable law. Seller owns the Assets and conducts the
Business directly, and not through any other corporation, partnership or other
entity.
4.2 AUTHORIZATION AND EFFECT OF AGREEMENT. Seller has the requisite
corporate power to execute and deliver this Agreement and to perform the
transactions contemplated by this Agreement to be performed by Seller. The
execution and delivery by Seller of this Agreement and the performance by Seller
of the transactions contemplated by this Agreement to be performed by Seller
have been duly authorized by all necessary action on the part of Seller,
Seller's board of directors and the shareholders, as applicable, and, if
applicable, holders of Seller's indebtedness. This Agreement has been duly
executed and delivered by Seller and, assuming the due execution and delivery of
this Agreement by Buyer, constitutes a valid and binding obligation of Seller
enforceable in accordance with its terms.
4.3 NO CONFLICTS. Except as listed or described on SCHEDULE 4.3, the
execution and delivery of this Agreement by Seller does not, and the performance
by Seller of the transactions contemplated by this Agreement to be performed by
it will not, conflict with, or result in any violation of, or constitute a
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or to
loss of a material benefit under, (i) the articles of incorporation or bylaws of
Seller, (ii) any law, statute, rule, regulation, zoning or other ordinance,
order, code, arbitration award, judgment, decree, permit or other legal
requirement (each a "Law" and, collectively, "Laws") of any United States,
state, legal or other governmental entity or municipality or any subdivision
thereof or any authority, department, commission, board, bureau, agency, court,
arbitration panel or instrumentality (collectively, "Governmental Entities") to
which Seller or any of the Assets is subject, (iii) any of the Contracts or any
document or instrument to which Seller or any of the Assets is subject, or (iv)
au licenses required to permit, in accordance with the rules and regulations or
any Governmental Entity, the continued conduct of the business as now conducted
(or proposed to be conducted under existing agreements). No consent, approval,
order or authorization of, or registration, declaration or filing with, any
Governmental Entity is required to be obtained or made by or with respect to
Seller under any applicable Law in connection with the execution and delivery of
this Agreement by Seller or the performance by Seller of the transactions
contemplated by this Agreement to be performed by Seller.
4.4 FINANCIAL STATEMENTS. Seller has provided Buyer with true and
complete copies of Seller's balance sheet dated October 30, 1996, and related
statement of profit and loss for the period from January 1, 1996 through October
30, 1996 (the "Financial Statements"). The Financial Statements present fairly
in all material respects the financial condition and results of operation of the
Business as of and for the periods indicated. Except as reflected on the balance
sheet included in the Financial Statements, as of the date of such balance
sheet, Seller had no liability, known or unknown, accrued or unaccrued, absolute
or contingent. Since October 30, 1996, Seller has not incurred any liability
other than liabilities in the ordinary course of business consistent with past
practice.
4.5 COMPLIANCE WITH LAWS. Except as described on SCHEDULE 4.5, Seller is
in compliance with all Laws. Except as set forth on SCHEDULE 4.5, Seller is
not required to obtain any
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licenses or permits, or file any notices, applications or reports under
regulations related to any matters referred to in this Section 4.5 that have not
been properly obtained or filed. Except as set forth on SCHEDULE 4.5, there is
not pending or threatened any litigation, claim or proceeding before any court,
agency or arbitral body to which Seller is a party or by which the Assets could
be bound or affected.
4.6 TITLE TO ASSETS.
(1) The Assets constitute in all material respects, all of the
assets, other than the Excluded Assets, used by Seller in connection with
the conduct of the Business Seller has good, marketable and exclusive title
to the Assets, and the Assets are free and clear of all liens, mortgages,
claims, charges, security interests, options, preemptive purchase rights or
other encumbrances of any kind or nature whatsoever (collectively,
"Liens"). Seller has the valid and enforceable power and unqualified right
to Transfer the Assets to Buyer.
(ii) SCHEDULE 1.1 contains an accurate list of the Assets.
(iii) The delivery to Buyer at Closing of the instruments of Transfer
contemplated by this Agreement will vest in Buyer good, marketable and
exclusive title to the Assets, free and clear of all Liens.
4.7 INTELLECTUAL PROPERTY. There is no unresolved claim or demand
asserting a conflict with, and Seller is not infringing on, the rights of others
in connection with Seller's use of any patents, copyrights, trademarks, trade
names, service marks, trade secrets, know-how and other proprietary rights,
whether registered or unregistered, including applications for any of the
foregoing (collectively, the "Intellectual Property Rights"). To the best of
Seller's knowledge, no person or entity is infringing on or improperly using the
Intellectual Property Rights of Seller.
4.8 CONTRACT RIGHTS
(i) SCHEDULE 4.8(i) contains a true and complete list of all
contracts, agreements, arrangements or understandings (the "Seller Contracts")
to which Seller is a party or by which Seller is bound or to which any of the
Assets are subject, other than any which are entered into with unaffiliated
third parties in the ordinary course of business which are not material to the
conduct of the Business, which are terminable without payment of premium or
penalty at will or upon not more than 30 days' notice, which impose monetary
obligations not in excess of $5,000 and which impose no material non-monetary
obligations. Except as set forth on SCHEDULE 4.8(i), none of the Seller
Contracts listed or described on SCHEDULE 4.8(i) has been amended nor has Seller
waived any right thereunder. Seller has provided Buyer with true, complete and
correct copies of each of the Seller Contracts described on SCHEDULE 4.8(i) that
are written and true, complete and correct written summaries of the Seller
Contracts listed or described on SCHEDULE 4.8(i) that are oral.
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(ii) Except as set forth on SCHEDULE 4.8(ii), (A) Seller has performed
all obligations required to be performed by it to date under the Seller
Contracts, (B) neither Seller nor, to the best of Seller's knowledge, any
other party to any Seller Contract has improperly terminated or is in
breach or default under such Seller Contract, (C) there exists no condition
or event which, after the giving of notice or lapse of time or both, would
constitute any such breach, termination or default, (D) each of the Seller
Contracts is in full force and effect and is a legal, binding and
enforceable obligation of Seller and, to the best of Seller's knowledge,
each of the other parties to the Seller Contracts, (E) none of the Seller
Contracts is presently being renegotiated, either in whole or in part and
(F) each of the Seller Contracts, if performed by Buyer, would not result
in a loss to Buyer, based on Seller's actual production costs for the
twelve months ended on the date of this Agreement and based on the quoted
price set forth in, or applicable to, the Seller Contract.
4.9 TAXES.
(i) Seller has paid all Taxes owed by it when due, except for
circumstances in which Seller is contesting the payment of a Tax in good
faith under circumstances in which title to or use of the Assets by Buyer
will not be adversely affected (such as by the posting of a bond by
Seller), and except for Taxes as to which Seller's failure to pay will not
result in the imposition of a lien or encumbrance on any of the Assets or
in any obligation of Buyer to pay such Taxes, any such exceptions being
described on SCHEDULE 4.9(i). Seller has timely filed all Tax returns and
reports.
(ii) For purposes of this Agreement, the term "Taxes" means all
federal, state, local, foreign and other net income, gross income, gross
receipts, sales, use, ad valorem, transfer, franchise, profits, license,
lease, service, service use, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, customs, duties, real
estate or other taxes, fees, assessments, or charges of any kind whatever,
together with any interest and any penalties, additions to tax, or
additional amounts with respect thereto, and the term "Tax" means any one
of the foregoing Taxes.
4.10 CUSTOMERS AND SUPPLIERS. Except as set forth on SCHEDULE 4.10, Seller
is not involved in any material claim or controversy with any customer or
supplier.
4.11 SUFFICIENCY OF THE ASSETS. The Assets constitute all of the
properties, assets and rights required for the continued conduct of the
Business as presently conducted.
4.12 BROKERS, FINDERS AND AGENTS. Seller has not taken any action that
would directly or indirectly obligate Seller, Buyer or anyone else to anyone
acting as a broker, finder, financial advisor or in any other similar capacity
in connection with this Agreement or the transactions contemplated by this
Agreement.
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4.13 CERTAIN TRANSFERS. Except as set forth on SCHEDULE 4.13, since
October 30, 1996 Seller has not transferred any of the Assets (to another
operation of Seller, a third party or otherwise) except for sales of inventory
in the ordinary course of business consistent with past practice, and has
conducted the Business in the ordinary course of business consistent with past
practice.
4.14 INVESTMENT INTENT. Seller and each of the Shareholders is acquiring
the Share Consideration for investment only without any view to selling or
otherwise disposing of the Share Consideration. Seller and each Shareholder is
a sophisticated investor with knowledge and experience in investments and has
had access to all information desired by it regarding Seller and the Share
Consideration, including opportunities to ask questions of and receive answers
from management of Buyer. Seller and each Shareholder acknowledges that the
Share Consideration has been transferred to them without registration under the
United States federal securities laws or any similar state law and that the
shares comprising the Share Consideration may not be sold without registration
thereunder unless exemptions from such requirements are available. Buyer may
place a legend to the foregoing effect on certificates representing the Share
Consideration.
REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and warrants to
Seller as of the date hereof as follows:
4.14 CORPORATE MATTERS. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Buyer is
duly qualified to conduct business as a foreign corporation in each
jurisdiction in which its ownership or lease of property or conduct of its
business requires such qualification under applicable law.
4.15 AUTHORIZATION AND EFFECT OF AGREEMENT. Buyer has the requisite
corporate power to execute and deliver this Agreement and to perform the
transactions contemplated by this Agreement to be performed by Buyer. The
execution and delivery by Buyer of this Agreement and the performance by Buyer
of the transactions contemplated by this Agreement to be performed by Buyer have
been duly authorized by all necessary action on the part of Buyer. This
Agreement has been duly executed and delivered by Buyer and, assuming the due
execution and delivery of this Agreement by Seller, constitutes a valid and
binding obligation of Buyer enforceable in accordance with its terms.
4.16 NO CONFLICTS. The execution and delivery of this Agreement by Buyer
does not, and the performance by Buyer of the transactions contemplated by this
Agreement to be performed by it will not, conflict with, or result in any
violation of, or constitute a default (with or without notice or lapse of time,
or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligations or to loss of a material benefit under, (i) the
articles of incorporation or bylaws of Buyer, (ii) any Law or judgment, order or
award existing or entered into as of the date of this Agreement to which Buyer
is subject, (iii) any contract to which Buyer is a party, or (iv) any license or
permit of Buyer. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity is required to
be obtained or made by or with
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respect to Buyer under any applicable Law in connection with the execution and
delivery of this Agreement by Buyer or the performance by Buyer of the
transactions contemplated by this Agreement to be performed by it.
4.17 BROKERS, FINDERS AND AGENTS. Buyer has not taken any action that
would directly or indirectly obligate Seller, Buyer or anyone else to anyone
acting as a broker, finder, financial advisor or in any other similar capacity
in connection with this Agreement or the transactions contemplated by this
Agreement.
V. ADDITIONAL COVENANTS
5.1 TRANSITION ASSISTANCE. Seller shall provide Buyer with such
assistance as may reasonably be requested by Buyer to implement the terms of
this Agreement and the Transfer of the Business pursuant to this Agreement.
5.2 EMPLOYEE MATTERS.
(a) FUTURE EMPLOYMENT. Buyer will offer employment on terms set
forth in contracts in substantially the form of EXHIBIT 5.2(a) (the "Employment
Contracts") to the following individuals at the following rates of compensation:
Name Initial Salary
---- --------------
Darrell D. Judd $4,600 per month
Steven R. Yashor $4,200 per month
Chaz Clover $3,000 per month/$19 per hour billable and
$14 per hour nonbillable
(b) RESERVED ACCOUNTS. As part of his overall duties to Buyer,
Darrell D. Judd will be assigned the account of Stick Enterprises International
and all accounts which are obtained by Buyer as a direct result of Mr. Judd's
work with Stick Enterprises International. Mr. Judd will be compensated with
respect to Stick Enterprises to the same extent and on the same terms as all
accounts handled by Mr. Judd from time to time under his employment agreement
with Buyer, [except that Mr. Judd will be paid no commissions or other
contingent compensation with respect to revenues generated which result in a
payment to Seller under Section 2.2 of this Agreement.] Mr. Judd's rights under
this Section 5.2(b) are subject in all respects to Buyer's policies and
procedures as such are in effect from time to time, and to the terms of Mr.
Judd's Employment Contract. Buyer's obligations under this Section 5.2(b) and
under Section 5.2(c) will expire on March 1, 1997 and will terminate
automatically upon any termination of Mr. Judd's Employment Contract.
(c) COMPLIMENTARY WEB ACCOUNT. Buyer will provide without charge to
Darrell D. Judd two Web accounts of size and usage that falls within the average
of all Buyer's commercial accounts. In the event that either the size or usage
of the accounts exceeds the average,
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the excess will be billed at the then current commercial rates and Mr. Judd will
promptly reimburse Buyer for such excess amounts. The accounts are for personal
use only and are not to be resold.
VI. THE CLOSING
6.1 SIMULTANEOUS CLOSING. The consummation of the transactions
contemplated by this Agreement ("Closing") shall occur on the date of the
execution of this Agreement. Closing shall take place at Sherman & Howard
L.L.C., 633 Seventeenth Street, Suite 3000, Denver, Colorado, on the effective
date of this Agreement (the "Closing Date").
6.2 THE CLOSING.
(a) Seller and the Shareholders will deliver to Buyer, at the expense
of Seller, the following (collectively, "Seller's Closing Documents"):
(i) EMPLOYMENT CONTRACTS. The Employment Contracts in the form
of EXHIBIT 5.2(a); and
(ii) BILL OF SALE AND ASSIGNMENT. A Bill of Sale and Assignment
in substantially the form of EXHIBIT 6.2(a).
(b) Buyer will deliver to Seller, at the expense of Buyer, the
following (collectively, "Buyer's Closing Documents"):
(i) PAYMENT OF PURCHASE PRICE. An amount equal to the cash
portion of the purchase price by bank check or wire transfer and
certificates representing the Share Consideration; and
(ii) ASSUMPTION AGREEMENT. An Assumption Agreement in the form
of EXHIBIT 6.2(b); and
(iii) EMPLOYMENT CONTRACTS. The Employment Contracts in the form
of EXHIBIT 5.2(a).
VII. MISCELLANEOUS PROVISIONS
7.1 NOTICES. All notices and other communications required or permitted
under this Agreement will be in writing and, unless otherwise provided in this
Agreement, will be deemed to have been duly given when delivered in person or
when dispatched by telegram or electronic facsimile transfer (confirmed in
writing by mail simultaneously dispatched) or one business day after having been
dispatched by a nationally recognized overnight courier service to the
appropriate party at the address specified below.
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(a) If to Buyer to:
Rocky Mountain Internet, Inc.
1800 Glenarm Place, 11th Floor
Denver, CO 80202
Facsimile No.: 303/672-0711
Telephone No.: 303/672-0700
Attention: Mr. Kevin Loud
with a copy to:
Stephen S. Halasz, Esq.
Sherman & Howard L.L.C.
633 17th Street, Suite 3000
Denver, CO 80202
Facsimile No.: 303/298-0940
Telephone No.: 303/297-2900
(b) If to Seller, to:
CompuNerd, Inc.
408 S. Tejon, Suite 201
Colorado Springs, CO 80903
Facsimile No.: (719) 578-0478
Telephone No.: (719) 578-5424
Attention: Darrell D. Judd - President
with a copy to:
Steven T. Nolan, Esq.
408 South Tejon, Suite 806
Colorado Springs, CO 80903
Facsimile No.: (719) 471-7108
Telephone No.: (719) 471-3226
or to such other address or addresses as any such party may from time to time
designate as to itself by like notice.
7.2 EXPENSES. Except as otherwise expressly provided in this Agreement,
Seller and Buyer each will pay any expenses incurred by it incident to this
Agreement and in preparing to consummate and consummating the transactions
provided for in it.
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7.3 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of the parties to this Agreement and their respective
successors and assigns, but will not be assignable or delegatable by any party
without the prior written consent of the other party; provided, however, that
nothing in this Agreement is intended to limit Buyer's ability to transfer any
of the Assets following the Closing Date.
7.4 WAIVER. Either Buyer or Seller by written notice to the other
may (a) extend the time for performance of any of the obligations or other
actions of the other under this Agreement, (b) waive any inaccuracies in the
representations or warranties of the other contained in this Agreement or in any
Closing Document, (c) waive compliance with any of the conditions or covenants
of the other contained in this Agreement, or (d) waive performance of any of the
obligations of the other under this Agreement. Except as provided in the
immediately preceding sentence, no action taken pursuant to this Agreement will
be deemed to constitute a waiver of compliance with any representations,
warranties or covenants contained in this Agreement and will not operate or be
construed as a waiver of any subsequent breach, whether of a similar or
dissimilar nature.
7.5 ENTIRE AGREEMENT. This Agreement (including the Exhibits)
supersedes any other agreement, whether written or oral, that may have been made
or entered into by any party to this Agreement (or by any director, officer or
representative thereof) relating to the matters contemplated by this Agreement.
This Agreement (including the Exhibits and documents contemplated hereby)
constitutes the entire agreement by and among the parties to this Agreement and
there are no agreements or commitments by or among such parties except as
expressly set forth in this Agreement.
7.6 SHAREHOLDERS OBLIGATED. The Shareholders will cause Seller to
comply with all of the obligations under this Agreement.
7.7 RIGHTS OF THE PARTIES. Nothing expressed or implied in this
Agreement is intended or will be construed to confer upon or give any person or
entity other than the parties to this Agreement any rights or remedies under or
by reason of this Agreement or any transaction contemplated by this Agreement.
7.8 FURTHER ASSURANCES. From time to time, as and when requested by
any party to this Agreement, the other party will execute and deliver, or cause
to be executed or delivered, all such documents and instruments as may be
reasonably necessary to consummate and fully effectuate the transactions
contemplated by this Agreement. Buyer and Seller will cooperate and take such
action as may be reasonably requested by the other in order to effect an orderly
Transfer of the Assets and the Business with a minimum of disruption to the
operations of the Business.
7.10 APPLICABLE LAW; JURISDICTION. This Agreement and the legal
relations among the parties to this Agreement will be governed by and construed
in accordance with the substantive laws of the State of Colorado, without giving
effect to the principles of conflict of laws thereof.
10
<PAGE>
7.11 TITLES AND HEADINGS. Titles and headings to Sections in this
Agreement are inserted for convenience of reference only, and are not intended
to be a part of or to affect the meaning or interpretation of this Agreement.
7.12 PASSAGE OF TITLE AND RISK OF LOSS. Legal title, equitable
title and risk of loss with respect to the Assets will not pass to Buyer until
such Assets are Transferred at Closing, which transfer, once it has occurred,
will be deemed effective for tax, accounting and other computational purposes as
of the close of business on the Closing Date.
7.13 CERTAIN INTERPRETIVE MATTERS AND DEFINITIONS. Unless the
context otherwise requires, (i) all references to Sections, Articles and
Exhibits are to Section, Articles or Exhibits of or to this Agreement, (ii) each
term defined in this Agreement has the meaning assigned to it, (iii) each
accounting term not otherwise defined in this Agreement has the meaning assigned
to it in accordance with GAAP, (iv) "or" is disjunctive but not necessarily
exclusive, (v) words in the singular include the plural and vice versa, (vii)
the phrase "liabilities and obligations" means all such matters of any nature,
whether fixed or contingent, known or unknown, or arising under contract, law,
equity, or otherwise, and (viii) the word "including" and similar terms
following any statement will not be construed to limit the statement to the
matters listed after such word or term, whether or not a phrase of nonlimitation
such as "without limitation" is used. No provision of this Agreement will be
interpreted in favor of, or against, any of the parties to this Agreement by
reason of the extent to which any such party or its counsel participated in the
drafting or by reason of the extent to which any such provision is inconsistent
with any prior draft.
7.14 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same agreement.
7.15 SURVIVAL OF WARRANTIES: REMEDIES NOT EXCLUSIVE. All warranties
will survive the closing of the transactions contemplated by this Agreement. No
remedy conferred by any of the specific provisions of this Agreement is intended
to be exclusive of any other remedy and each remedy will be cumulative and will
be in addition to every other remedy given under this Agreement or hereafter
existing at law or in equity or by statute or otherwise. The election of any one
or more remedies will not constitute a waiver of the right to pursue other
available remedies.
7.16 PURCHASE PRICE ALLOCATION. The purchase price will be
allocated as follows: $46,266.00 to the Assets other than Seller's rights under
subscriber contracts, and the remainder of the purchase price to Seller's rights
under Subscriber Contracts.
11
<PAGE>
The parties to this Agreement have executed this agreement as of the day
and year first above written.
ROCKY MOUNTAIN INTERNET, INC.
By: /s/ Roy Dimoff
----------------------------------
Name: Roy Dimoff
Title: President & CEO
COMPUNERD, INC.
BY: /s/ Darrell Judd, President
----------------------------------
Name: Darrell Judd
Title: President
/s/ Darrell Judd
---------------------------------------
Darrell Judd
/s/ Steven R. Yashui
---------------------------------------
Steven R. Yashui
/s/ Ken McGlothlen by Darrell Judd
---------------------------------------
Ken McGlothlen (Attorney in fact)
/s/ Chaz Clover
---------------------------------------
Chaz Clover
/s/ Randy Judd-Harrison by Darrell Judd
---------------------------------------
Randy Judd-Harrison (attorney in fact)
/s/ Del Harrison
---------------------------------------
Del Harrison
12
<PAGE>
EXHIBIT 5.2(a)
FORM OF EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of
November 1, 1996, by and between ____________________ ("Employee") and Rocky
Mountain Internet, Inc., a Delaware corporation (the "Company").
In consideration of the mutual agreements set forth in this Agreement,
the parties agree as follows:
SECTION 1. TERM. Beginning on the date of this Agreement, the Company
agrees to employ the Employee and the Employee accepts such employment.
Employee's employment will be at the will of the Company, but the terms of this
Agreement will apply so long as Employee remains employed or until this
Agreement is amended by the parties.
SECTION 2. DUTIES. Employee will be employed full time by the Company
and will perform such duties as are assigned to him from time to time by any
officer of the Company. Employee will to the best of his ability
conscientiously and loyally perform the duties properly required of him, and in
all instances to further the best interests of the Company.
SECTION 3. BASE SALARY. For all services rendered by Employee in any
capacity during Employee's employment under this Agreement, the Company shall
pay Employee a base salary at the annual rate of $ ______________ per month.
Such base salary shall be payable in accordance with the customary Employee
payroll practices of the Company, but in no event less frequently than monthly;
provided, however, that Employee shall not be entitled to any salary while
receiving payments under any written policy with respect to disability which may
be adopted by the Company and then in effect. [ADD PROVISIONS SPECIFIC TO EACH
EMPLOYEE]
SECTION 4. BENEFITS. Employee shall receive such personal leave,
vacation, disability pay, insurance and other benefits in addition to salary
bonuses as are provided to, and on the same basis as, other similarly classified
employees of the Company.
SECTION 5. SOURCE OF PAYMENTS. All payments required under this
Agreement shall be paid from the general funds of the Company, and no special or
separate fund shall be established and no other segregation of assets shall be
made to assure payment. Employee shall have no right, title, or interest
whatever in or to any investments which the Company may make to aid the Company
in meeting its obligations hereunder.
SECTION 6. TERMINATION. Employee's employment hereunder may be
terminated by the Company with or without cause, in the Company's sole
discretion, at any time.
<PAGE>
SECTION 7. NON-COMPETITION COVENANT. Employee shall not, during the
term of Employee's employment by the Company and for a period of one year
thereafter, in any capacity whatsoever, directly or indirectly, (a) solicit from
any customer or customer prospect of the Company any business relating to any
services then being provided, or proposed by the Company to be provided, by the
Company to any customer of the Company, (b.) solicit from any employee or
consultant of the Company, or supply to any person, information pertaining to
any customer or customer prospect of the Company, (c.) make an offer of
employment to any person employed by the Company or whose employment by the
Company has ended less than 180 days prior thereto; or (d.) interfere with any
actual or prospective contractual relationship between the Company and any
customer of the Company. For purposes of this Agreement, "customer" shall
refer, in addition to those persons to which services are sold by the Company,
to those persons with which the Company has established strategic marketing or
other alliances.
Employee (i.) recognizes the significance of the provisions of this Section 7
and that they are required for the protection of legitimate business interests
of the Company; (ii.) that the Company would not, in the absence of such
provisions, employ Employee or entrust to Employee the significant
responsibilities which will be entrusted to Employee; (iii.) there will be no
practical way to separate the portions of the Company's information which is
confidential information (as hereinafter defined) created by the Company's
investment and that information which is discernible from other sources; (iv.)
acknowledges that the provisions of this Section 7 are reasonable in terms of
duration, geography, and types and limits of activities; and (v.) acknowledges
that the Company will be making major investments based to a considerable degree
upon Employee's advice and in reliance upon Employee's covenant not to compete
contained in this Section 7. If the covenant not to compete in this Section 7 is
found by any court to be overly-broad in extent, as to the time period or as to
the geographic area designated, the parties agree that it shall nevertheless be
effective, but it shall be deemed to be amended to the extent determined by such
court to be reasonable and enforceable to the greatest possible extent, and, as
so amended, shall be fully enforced.
SECTION 8. CONFIDENTIAL INFORMATION; PROPRIETARY RIGHTS. Employee shall
not, except in the performance of Employee's duties hereunder and for the
benefit of the Company, during or after employment hereunder, use, disclose or
reveal to any unauthorized person any confidential information of the Company
relating to the Company, to its subsidiaries or affiliates, or to any of the
businesses operated by them, and Employee confirms that such information
constitutes the exclusive property of the Company. As used in Section 7 and
this Section 8, "confidential information" means all information which has been
acquired, created, discovered or developed by or has otherwise become known to
the Company, or in which property rights have been assigned to the Company,
which information has commercial value to the Company including, for example,
trade secrets, product or service designs, marketing plans or forecasts,
financial plans or forecasts, software, network design systems, media
information systems and customer and customer prospect lists (including but not
limited to information relating to the requirements of customers and customer
prospects and the names of and information about key personnel of customers or
customer prospects) of the Company. Employee hereby assigns to the Company any
rights Employee has or may acquire to confidential information, including any
rights in software, network design systems, patent rights
2
<PAGE>
or copyrights, whether heretofore or hereafter developed. Employee will
promptly disclose to the Company, or any persons designated by it, all
improvements, inventions, formula, systems, processes, techniques, know-how and
data, whether or not patentable, or copyrightable, made or conceived or reduced
to practice or learned by Employee, either alone or jointly with others, during
the period of Employee's employment which are related to or useful in the
business of the Company, or result from tasks assigned to Employee by the
Company, or result from use of premises owned, leased or contracted for by the
Company (all such improvements, inventions, formula, processes, techniques,
know-how and data shall be collectively hereinafter called "Inventions").
Employee agrees that all Inventions shall be the sole property of the Company
and its assigns, and the Company and its assigns shall be the sole owner of all
patents, copyrights and other rights in connection therewith. Employee hereby
assigns to the Company any rights Employee may have or acquire in all
Inventions. Employee further agrees as to all Inventions to assist the Company
in every proper way (but at the Company's expense) to obtain and from time to
time enforce patents, copyrights, or other legal protections on Inventions in
any and all countries shall continue beyond the termination of Employee's
employment, but the Company shall compensate Employee at a reasonable rate after
such termination for time actually spent by Employee at the Company's request on
such assistance.
SECTION 9. SURVIVAL/COMPANY'S REMEDIES UPON BREACH. The covenants
contained in Sections 7 and 8 hereof shall be construed as independent of any
other agreements between the parties and shall survive termination of the
employment of Employee. Employee acknowledges that the Company's remedy at law
for a breach by Employee of the provisions of Sections 7 and 8 hereof will be
inadequate. Accordingly, in the event of the breach or threatened breach by
Employee of any of Sections 7 and 8 hereof, the Company shall be entitled to
injunctive relief in addition to any other remedy to which it may be entitled.
SECTION 10. TAX WITHHOLDING. The Company may withhold from any
benefits payable under this Agreement all federal, state, city or other taxes
as shall be required pursuant to any law or governmental regulation or ruling.
SECTION 11. BENEFIT AND BINDING EFFECT. This Agreement shall inure
to the benefit of, and be binding upon, (a.) Employee and Employee's personal or
legal representatives, executors, administrators, distributees, devisees and
legatees, and (b.) the Company and its successors and assigns. Without limiting
the generality of the foregoing, the Company, without Employee's consent, may
assign this Agreement and its rights hereunder to any person or entity that
acquires substantially all of the Company's business or assets.
SECTION 12. NO ATTACHMENT. Except as required by law, the right to
receive payments under this agreement shall not be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to execution, attachment, levy or similar process or assignment
by operation of law, and any attempt, voluntary or involuntary, to effect any
such action shall be null, void ab initio and of no effect.
3
<PAGE>
SECTION 13. AMENDMENT OF AGREEMENT. This Agreement may not be
modified or amended except by an instrument in writing signed by the parties
hereto.
SECTION 14. NO IMPLIED WAIVER. No forbearance from enforcing any
right hereunder shall be deemed to be a waiver of such right. No provision of
this Agreement shall be deemed to have been waived, nor shall there by any
estoppel against the enforcement of any provision of this Agreement, except by
written instrument of the party charged with such waiver or estoppel. No such
written waiver shall be deemed a continuing waiver unless specifically stated
therein, and each such waiver shall operate only as to the specific term or
condition waived and shall not constitute a waiver of such term or condition for
the future or as to any act other than specifically waived.
SECTION 15. NOTICE. For the purposes of this Agreement, notices and
all other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when received in fact if notice is given
other than by registered mail, or when mailed by United States registered mail,
return receipt requested, postage prepaid addressed, in the case of the
Employee, to Employee's address as shown on the payroll records of the Company
and, in the case of the Company, to the attention of the Chief Executive Officer
at the principal executive offices of the Company, or to such other address as
either party may have furnished to the other in writing in accordance herewith,
except notice of change of address shall be effective only upon receipt.
SECTION 16. SEVERABILITY; ENFORCEABILITY. If, for any reason, any
provision of this Agreement is held invalid, such invalidity shall not affect
any other provision of this Agreement not held so invalid, and each such
other provision shall to the full extent consistent with law continue in full
force and effect. If any provision of this Agreement shall be held invalid
in part, such invalidity shall in no way affect the rest of such provision
not held so invalid, and the rest of such provision, together with all other
provisions of this Agreement, shall to the full extent consistent with law
continue in full force and effect. This Agreement shall be interpreted to
protect to the fullest possible extent the Company's confidential
information, employees, customers, prospective customers, and goodwill.
SECTION 17. HEADINGS. The headings of Sections and paragraphs are
included solely for convenience of reference and shall not control the meaning
or interpretation of any of the provisions of this Agreement.
SECTION 18. GOVERNING LAW. This Agreement has been executed and
delivered in the State of Colorado, is intended to be performed primarily within
such State, and its validity, interpretation, performance, and enforcement shall
be governed by the laws of such State.
SECTION 19. ENTIRE AGREEMENT. This instrument contains the entire
agreement of the parties with respect to the subject matter hereof and shall
supersede all other prior written or oral representations and agreements, if any
between or among any of Employee, the Company, the President, or any of them
concerning the employment of Employee in any capacity; and neither party is
relying upon any such prior representations or agreements in entering into this
Agreement.
4
<PAGE>
SECTION 20. ARBITRATION. Any dispute arising out of or related to
this Agreement will be submitted to binding arbitration pursuant to the rules of
the American Arbitration Association. The location of any arbitration
proceeding will be Denver, Colorado, and judgment upon an award of the
arbitrators may be executed in any court of competent jurisdiction.
IN WITNESS WHEREOF, the Company and Employee have caused this Agreement to be
executed as of the day and year first above written.
COMPANY:
Rocky Mountain Internet, Inc.
BY:
-------------------------------------
EMPLOYEE:
----------------------------------------
NAME
5
<PAGE>
EXHIBIT 6.2(a)
BILL OF SALE AND
ASSIGNMENT AGREEMENT
That CompuNerd, Inc., a Colorado corporation ("Seller") for $10.00 and
other valuable consideration in hand paid by Rocky Mountain Internet, Inc., a
Delaware corporation ("Buyer"), receipt of which is acknowledged, hereby sells,
grants, transfers and conveys to Buyer all of the Assets comprising, used or
useful in the Business (as defined in the Asset Purchase Agreement dated as of
November 1, 1996, between Seller and Buyer (the "Asset Purchase Agreement")),
including but not limited to the Assets included on Schedule 1.1 to the Asset
Purchase Agreement.
This Agreement may be executed in one or more counterparts, all of which
taken together shall constitute the original of this Agreement.
Dated as of November 1, 1996
Rocky Mountain Internet, Inc. CompuNerd, Inc.
By: By:
--------------------------- ---------------------------
<PAGE>
EXHIBIT 6.2(b)
ASSUMPTION AGREEMENT
For value received, receipt and sufficiency of which are acknowledged,
CompuNerd, Inc., a Colorado corporation ("Seller") hereby assigns and transfers
to Rocky Mountain Internet, Inc. A Delaware corporation ("Buyer") all of
Seller's right, title and interest in and to each of the contracts ("Assumed
Contracts") included on Schedule 3.1 to the Asset Purchase Agreement dated
November 1, 1996, between Seller and Buyer (the "Asset Purchase Agreement").
Buyer assumes and agrees to discharge, in accordance with terms thereof, all
obligations under the Assumed Contracts arising on and after the date hereof to
the extent that such liabilities and obligations relate to periods beginning on
or after the date hereof and to be bound by such contracts as fully as if Buyer
had executed each as a party thereto.
This Agreement may be executed in one or more counterparts, all of which
taken together she constitute the original of this Agreement.
Dated as of November 1, 1996.
Rocky Mountain Internet, Inc. CompuNerd, Inc.
By: By:
--------------------------- ---------------------------
<PAGE>
[LETTERHEAD]
TO:
FAX: 408-495-1998
FROM: Dennis Cameron
ATTI
RE: Rocky Mountain Internet
DATE: November 1, 1996
- --------------------------------------------------------------------------------
This letter will confirm that Applied Telecommunications Technologies, Inc. has
approved a $2.0 million lease line for Rocky Mountain Internet ("RMI"). A
portion of this lease line has been designated to fund Purchase Orders #96348
and #96361.
Upon receipt of executed lease documentation from RMI, ATTI will fund these
purchase orders.
<PAGE>
[LETTERHEAD]
Steve Phenix
MCI Telecommunications August 21, 1996
707 17th St. Suite 3600
Denver, CO 80202
This letter shall serve as an agreement between MCI and ROCKY MOUNTAIN
INTERNET INC. (hereafter referred to as RMI) governing the provision of
professional information system development services for MCI by RMI relative to
the design and development of the MCI internal Intranet project referred to as
Electronic Advice.
RMI shall design and, with design approval of MCI, develop supporting
systems to facilitate Electronic Advice operation. These functions include (but
are not limited to) integration to ISI to download paystub information,
integration to ADP to download paystub information, develop a full security
access system, view current payroll information, view payroll history
information, view employee information and send a message to payroll.
MCI shall provide to RMI data, documents, and information in verbal
and written form, as required and appropriate, to enable RMI to successfully
complete the above responsibilities.
MCI and RMI both understand that the development of information
systems in an on going process. Additional work, beyond the scope of this
agreement, will be negotiated as separate consultation.
RMI shall complete the assigned tasks on a schedule consistent
with the responsibilities involved and in accord with MCI requirements as
mutually agreed.
RMI shall deliver the above described services by providing one full
time systems developer and three part time systems engineers at an hourly rate
of $80 and $107. RMI shall provide MCI with a detailed billing statement
categorizing hours billed in each of the developed functions. The scope of this
agreement shall not exceed 105,000 DOLLARS. If MCI chooses to extend the term
of the agreement beyond 105,000 dollars, they will request extension (including
a new maximum project amount) in writing and attach a copy of this agreement to
be initialed by both parties.
In the event that MCI elects to terminate this agreement, MCI shall
provide written notice to RMI and shall be responsible for any and all costs
incurred to date and experienced in the winding down of the project, if any.
If the terms of this agreement meet with your acceptance, please
indicate the same by signing below in the space provided and return a signed
copy of this agreement.
Sincerely,
/s/Elaine Feeney
Elaine Feeney
Director, Consulting Services
Rocky Mountain Internet Inc.
Accepted for MCI Telecommunications
By /s/Steven S. Phenix
----------------------------------
Date 8/26/96
----------------------------------
<PAGE>
EXHIBIT 11.1 STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS
Shares outstanding at 12/31/95 1,868,000
Debenture convertible to common stock 1,225,000
Preferred stock convertible to common stock 250,000
Stock options 146,000
Total 3,489,000
Days outstanding for 3 months ending
September 30, 1996 66
Days outstanding for 9 months ending
September 30, 1996 248
Initial Public Offering 1,365,000
Days outstanding for 3 months ending
September 30, 1996 26
Days outstanding for 9 months ending
September 30, 1996 26
Weighted Average Shares Outstanding
3 months ending 3,874,761
9 months ending 3,618,526
Earnings per Share - primary and fully diluted
3 months ending $ (0.152)
9 months ending $ (0.348)
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> SEP-30-1996
<CASH> 2,410,119
<SECURITIES> 1,200,000
<RECEIVABLES> 446,397
<ALLOWANCES> 46,632
<INVENTORY> 112,044
<CURRENT-ASSETS> 4,279,048
<PP&E> 1,286,860
<DEPRECIATION> (317,279)
<TOTAL-ASSETS> 5,330,656
<CURRENT-LIABILITIES> 1,657,053
<BONDS> 0
0
250
<COMMON> 3,233
<OTHER-SE> 2,768,388
<TOTAL-LIABILITY-AND-EQUITY> 5,330,656
<SALES> 316,469
<TOTAL-REVENUES> 2,124,401
<CGS> 282,726
<TOTAL-COSTS> 685,134
<OTHER-EXPENSES> 2,697,989
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 116,750
<INCOME-PRETAX> (1,258,721)
<INCOME-TAX> 0
<INCOME-CONTINUING> (1,258,721)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,258,721)
<EPS-PRIMARY> (0.348)
<EPS-DILUTED> (0.348)
</TABLE>
