exv10w2






Exhibit 10.2




LEASE

(Office)




     THIS
LEASE (this “Lease”), dated as of May 30, 2008, is by and between MCWHINNEY 409CC, LLC,
a Colorado limited liability company (“Landlord”), and CONSTANT CONTACT, INC., a Delaware
corporation (“Tenant”).



W I T N E S S E T H:




     1. PRINCIPAL TERMS. Capitalized terms, first appearing in quotations in this
Section, elsewhere in the Lease or any Exhibits, are definitions of such terms as used in the Lease
and Exhibits and shall have the defined meaning whenever used.



	 	 	 	 	 
	1.1

	 	“BUILDING”:
	 	A building containing approximately fifty thousand
(50,000) square feet of Rentable Area as defined in
Section 2 below to be built upon the parcel of Real
Property legally described on Exhibit B attached hereto
located on Precision Drive in the City of Loveland,
County of Larimer, State of Colorado.
	 
	 	 	 	 
	1.2

	 	“PREMISES”:
	 	The entire Building containing approximately fifty
thousand (50,000) square feet of Rentable Area as defined
in Section 2 below and depicted on Exhibit A attached
hereto.
	 
	 	 	 	 
	1.3

	 	“INITIAL TERM”:
	 	Ten (10) years, subject to extension or earlier
termination as set forth below.
	 
	 	 	 	 
	 

	 	“Commencement Date”:
	 	The first day following Substantial Completion of
“Landlord’s Work” as defined in the Work Letter attached
hereto as Exhibit D (the “Work Letter”).
	 
	 	 	 	 
	







1.4

	 	“Expiration Date”:








“BASE RENT”:
	 	The last day of the calendar month in which the tenth
(10th) anniversary of the Rent Commencement
Date occurs unless extended pursuant to Sections 40, 41
and/or 42 below (subject to Tenant’s rights under
Sections 3.2, 3.3 and 5.6 below).






	 	 	 	 	 
	 	 	Annual	 	Monthly
	Lease Years	 	Base Rent*	 	Base Rent*
	1
	 	$406,250.04
	 	$33,854.17
	2
	 	$828,750.00
	 	$69,062.50
	3
	 	$845,325.00
	 	$70,443.75
	4
	 	$862,231.56
	 	$71,852.63
	5
	 	$879,476.16
	 	$73,289.68
	6
	 	$897,065.64
	 	$74,755.47
	7
	 	$915,006.96
	 	$76,250.58
	8
	 	$933,307.08
	 	$77,775.59
	9
	 	$951,973.20
	 	$79,331.10
	10
	 	$971,012.76
	 	$80,917.73






 









 






 



*  The foregoing Base Rent is based upon the assumption that (i) exactly one-half (1/2) of the total Rentable Square
Feet consisting of twenty-five thousand (25,000) Rentable Square Feet (as defined in Section 2 below) are allocated
to the Premises in Lease Year 1 and (ii) all of the Rentable Square Feet consisting of fifty thousand (50,000)
Rentable Square Feet (as defined in Section 2 below) are allocated to the Premises in Lease Years 2 through 10,
inclusive. In the event that Tenant shall have two hundred twenty (220) or more employees or contract laborers
working as part of Tenant’s business operations at the Premises prior to the expiration of Lease Year 1, Tenant
shall promptly notify Landlord in writing of the date that such event first occurred (the “Rent Increase Date”) and
the Base Rent to be paid by Tenant during the remainder of Lease Year 1 for the Premises shall be based upon the
total Rentable Square Feet allocated to the Premises (i.e., 50,000) rather than one-half (1/2) of the total
Rentable Square Feet allocated to the Premises (i.e., 25,000) in Lease Year 1 as set forth above. Subject to the
provisions of Sections 5.5, 41 and 42 below, in the event of any increase or decrease in the Rentable Square Feet
allocated to the Premises, the Base Rent shall be adjusted accordingly such that the same shall equal of Sixteen
Dollars and Twenty-Five Cents ($16.25) per Rentable Square Foot, increased annually on a compounded basis at the
rate of two percent (2%) per year. Unless the Premises are expanded pursuant to Sections 41 or 42 below, under no
circumstances shall Tenant be required to pay Base Rent on more than 52,500 Rentable Square Feet.




	 	 	 	 	 
	1.5

	 	“OPERATING EXPENSES”:
	 	As defined in Section 6.1, Tenant’s Pro Rata Share of the
Building: 100%
	 
	 	 	 	 
	1.6

	 	“DEPOSIT”:
	 	Cash in the amount of One Hundred Thousand Dollars
($100,000.00).
	 
	 	 	 	 
	1.7

	 	“PERMITTED USE”:
	 	General office use, including the operation of a
twenty-four (24) hour per day, seven (7) day per week
call center, training, seminars, and any other lawful
purpose ancillary to such use. In no event may medical
use or retail sales transactions by Tenant of tangible
personal property be initiated, consummated, conducted,
transacted or otherwise occur from or within any portion
of the Premises.
	 
	 	 	 	 
	1.8

	 	“RENT COMMENCEMENT DATE”
	       	The later of: (i) the Commencement Date, and (ii) the
earlier of (a) the later of (1) the date that is one
hundred fifty (150) days after the Delivery Date
(extended by one (1) day for each day of Landlord Delay),
and (2) the date that is one hundred five (105) days
after the completion of Landlord’s Secondary Initial Work
(extended by one (1) day for each day of Landlord
Delay), and (b) the date that Tenant commences beneficial
use of the Premises for its business purposes.
	 
	 	 	 	 
	1.9

	  	LANDLORD’S NOTICE ADDRESS:
	 	McWhinney 409CC, LLC
	 

	 	 	 	Attention: Vice President of Property Management
	 

	 	 	 	2725 Rocky Mountain Avenue, Ste. 200
	 

	 	 	 	Loveland, CO 80538
	 
	 	 	 	 
	 

	 	 	 	With copy to:
	 
	 	 	 	 
	 

	 	 	 	Hasler, Fonfara and Maxwell LLP
	 

	 	 	 	Attention: Joseph H. Fonfara
	 

	 	 	 	125 S. Howes, 6th Floor (Zip Code: 80521)
	 

	 	 	 	P.O. Box 2267
	 

	 	 	 	Fort Collins, CO 80522
	 
	 	 	 	 
	 

	 	 	 	With copy to:






 









 






	 	 	 	 	 
	 

	 	 	 	McWhinney Real Estate Services, Inc.
	 

	 	 	 	Attention: Chief Financial Officer
	 

	 	 	 	2725 Rocky Mountain Avenue, Ste. 200
	 

	 	 	 	Loveland, CO 80538
	 
	 	 	 	 
	1.10

	 	LANDLORD’S TAX I.D.:
	 	26-2653860
	 
	 	 	 	 
	1.11

	 	TENANT’S NOTICE ADDRESS:

Pre-Commencement Address:
	 	

Constant Contact, Inc.

Reservoir Place
	 

	 	 	 	1601 Trapelo Road, Suite 329
	 

	 	 	 	Waltham, MA 02494
	 
	 	 	 	 
	 

	 	 	 	With copy to:
	 
	 	 	 	 
	 

	 	 	 	Wilmer Cutler Pickering Hale & Dorr LLP
	 

	 	 	 	Attn: Paul Jakubowski, Esq.
	 

	 	 	 	60 State Street
	 

	 	 	 	Boston, MA 02109
	 
	 	 	 	 
	 

	 	Post-Commencement Address:
	 	Address of the Premises
	 
	 	 	 	 
	 

	 	 	 	With copy to:
	 
	 	 	 	 
	 

	 	 	 	Wilmer Cutler Pickering Hale & Dorr LLP
	 

	 	 	 	Attn: Paul Jakubowski, Esq.
	 

	 	 	 	60 State Street
	 

	 	 	 	Boston, MA 02109
	 
	 	 	 	 
	1.12

	 	TENANT’S TAX I.D.:
	 	04-3285398
	 
	 	 	 	 
	1.13

	 	LANDLORD’S BROKER:
	 	McWhinney Real Estate Services, Inc.
	 

	 	 	 	2725 Rocky Mountain Avenue, Ste. 200
	 

	 	 	 	Loveland, CO 80538
	 
	 	 	 	 
	1.14

	 	COOPERATING BROKER:
	 	McCall & Almy, Inc.
	 

	 	 	 	One Post Office Square
	 

	 	 	 	Boston, MA 02109
	 
	 	 	 	 
	1.15

	 	“LEASE YEAR”
	 	A period of twelve (12) consecutive full calendar months
(except for the first Lease Year, which may be longer as
provided in the next sentence). The first Lease Year
shall commence on the Rent Commencement Date and expire
at midnight on the last day of the calendar month in
which the first anniversary of the Rent Commencement Date
occurs, provided, however, if the Rent Commencement Date
occurs on the first day of the month, then the first
Lease Year shall expire on the last day of the calendar
month immediately preceding the first anniversary of the
Rent Commencement Date. Succeeding Lease Years shall
each commence on the first (1st) day following the end of
the preceding Lease Year.






 









 






	 	 	 	 	 
	1.16

	 	ATTACHMENTS:
	 	Exhibit A — The Premises
	 

	 	 	 	Exhibit B — Real Property
	 

	 	 	 	Exhibit C — Commencement Certificate
	 

	 	 	 	Exhibit D — Work Letter
	 

	 	 	 	Exhibit E — Initial Landlord’s Work
	 

	 	 	 	Exhibit F — Operating Expense Estimate
	 

	 	 	 	Exhibit G — Approved Location of Certain Tenant
Improvements
	 

	 	 	 	Exhibit H  — Parking Lot
	 

	 	 	 	Exhibit I — Expansion Parcel
	 

	 	 	 	Exhibit J — Rules and Regulations
	 

	 	 	 	Exhibit K — Title Restrictions






     2. GENERAL COVENANTS. Tenant covenants and agrees to pay Rent and perform the
obligations hereafter set forth and in consideration therefor Landlord leases to Tenant the real
property described on Exhibit B (the “Real Property”), together with the Building
constructed thereon, for the Term, together with a non-exclusive right, subject to the provisions
hereof, to use any common drives, access ways or parking serving the Premises or the Building or
which are necessary for Tenant’s use as permitted hereunder (the “Common Areas”). The rentable
area of the Premises shall equal the gross square footage of the Building (“Rentable Area” or
“Rentable Square Feet”). The Building, Real Property and appurtenances are hereinafter
collectively sometimes called the “Building Complex.” Tenant acknowledges that the Real Property
is subject to various recorded agreements, restrictions, easements and other recorded instruments,
including, but not limited to, (i) the Second Restated and Amended Master Declaration of Covenants,
Conditions and Restrictions for Centerra as recorded in the Larimer County, Colorado records (as
supplemented and amended, the “Declaration”); (ii) the Centerra Design Guidelines (as supplemented
and amended, the “Design Guidelines”); (iii) the Millennium General Development Plan (as
supplemented and amended, the “Development Plan”); (iv) the MHC LLLP Restrictions (as defined in
Section 32 below); (v) the PIF Covenant (as defined in Section 33 below); and (vi) the RSF Covenant
(as defined in Section 33 below). In accordance with the terms hereof, Tenant agrees to be bound
by and to abide by all such restrictions and requirements, including the Declaration, the Design
Guidelines, the Development Plan, the MHC LLLP Restrictions, the PIF Covenant and the RSF Covenant,
and all other obligations and restrictions described in Section 33 below. In addition, Tenant
further acknowledges that the Real Property is subject to Centerra Metropolitan District Nos. 2 and
4 providing for the installation of certain infrastructure improvements to benefit the Premises and
other improvements in the project generally known as “Centerra,” including, but not limited to,
roadways, sanitary sewer lines, water lines and storm drainage facilities and extensions thereof.
All such recorded agreements, restrictions, easements and other recorded instruments, including,
the Declaration, the Design Guidelines, the Development Plan, the MHC LLLP Restrictions, the PIF
Covenant and the RSF Covenant, shall be herein referred to as the “Title Restrictions.” Landlord
represents that the Real Property is zoned for business park uses, including, without limitation,
general office and call center use. Landlord represents and warrants that this Lease shall not be
subject to any Title Restrictions other than (i) the Title Restrictions described on Exhibit K
attached hereto, and (ii) any Title Restrictions hereinafter recorded that do not interfere with
Tenant’s use of the Premises for the Permitted Uses or impose additional costs upon Tenant
(regardless of whether such costs are imposed directly under such Title Restriction or pursuant to
this Lease).



     3. TERM.



          3.1 The Initial Term of the Lease commences at 12:01 a.m. on the Commencement Date and
terminates at 12:00 midnight on the Expiration Date, unless extended or earlier terminated as set
forth herein (the Initial Term together with any extensions thereof is herein referred to as the
“Term”).




          3.2 Notwithstanding the foregoing, Tenant shall have the option to terminate this Lease with
respect to the original Premises effective at any time after the seventh (7th) anniversary of the
Commencement Date hereof, provided that Tenant shall provide Landlord with not less than twelve
(12) months’ prior written notice of such early termination (“First



 









 






Termination Option”). Upon the
effective date of such termination, Tenant shall pay Landlord a payment equal to the sum of: (i)
all unamortized tenant improvement costs (excluding costs of Landlord’s Work, and not to exceed
amounts expended by Landlord under the Finish Allowance), leasing commissions and legal fees, in
each case to the extent paid by Landlord in connection with this Lease (amortized over a ten [10]
year period at an interest rate of nine and five/tenths percent [9.5%]), plus (ii) an amount equal
to Base Rent (i.e. excluding the Tenant’s Pro Rata Share of estimated Operating Expenses and any
other additional rent hereunder) for the next four (4) calendar months subsequent to the effective
date of such termination (the “First Termination Option Termination Fee”).




          3.3 In the event that the Initial Term of this Lease is extended pursuant to (x) Tenant’s
exercise of the expansion option pursuant to Section 41 below, (y) or Tenant’s exercise of the
Right of First Refusal pursuant to Section 42 below; then, in either event, Tenant shall have the
option to terminate this Lease with respect to the entire Premises (including the Expansion Space
and any Potential Offering Space) effective at any time after the seventh (7th) anniversary of the
Expansion Commencement Date or Offering Space Commencement Date, as applicable. Upon the effective
date of such termination, Tenant shall pay Landlord a payment equal to the sum of: (i) the portion
of the First Termination Option Termination Fee which would have been paid by Tenant if Tenant had
exercised the First Termination Option at such time with respect to the original Premises pursuant
to Section 3.2 above, plus (ii) all unamortized tenant improvement costs (excluding costs of
Landlord’s Work, and not to exceed amounts expended by Landlord under the Finish Allowance),
leasing commissions and legal fees, in each case to the extent paid by Landlord in connection with
this Lease with respect to the Expansion Space or Potential Offering Space, as applicable
(amortized over a ten [10] year period at an interest rate of nine and five/tenths percent [9.5%]),
plus (iii) an amount equal to Base Rent for the Expansion Space or Potential Offering Space, as
applicable (i.e. excluding the Tenant’s Pro Rata Share of estimated Operating Expenses and any
other additional rent hereunder) for the next four (4) calendar months subsequent to the effective
date of such termination (the “Second Termination Option Termination Fee”). Notwithstanding the
foregoing, at such time as the Expansion Space or Potential Offering Space (as applicable) is added
to the Premises and the Initial Term of this Lease is extended as set forth in Section 41.8 or
Section 42.6 below (as applicable), the First Termination Option granted by Landlord to Tenant
pursuant to Section 3.2 above shall be deemed automatically revoked.




     4. RENT. Commencing on the Rent Commencement Date and on the first day of each
calendar month of the Term thereafter, Tenant shall pay Base Rent in the monthly amount stated in
Section 1.4, in advance without notice (all amounts, including Base Rent, to be paid by Tenant
pursuant to this Lease as the context requires are sometimes referred to collectively as
“Rent[s]”). Rents shall be paid without set off, abatement, or diminution (except as expressly set
forth herein), to Landlord at 2725 Rocky Mountain Avenue, Suite 200, Loveland, Colorado 80538, or
at such other place as Landlord from time to time designates in writing in accordance with Section
29.2 below. In the event of any partial Lease Year during the Term, Tenant shall only be required
to pay Rent allocable to the calendar months during such partial Lease Year. Rent allocable to any
partial calendar month during the Term shall be prorated on a per diem basis.



     5. COMPLETION OF THE PREMISES.



          5.1 Landlord shall deliver possession of the Premises to Tenant on the Commencement Date,
vacant, broom clean and with the Landlord’s Work Substantially Complete (as defined in the Work
Letter). Except for the Landlord’s Work (including, without limitation, any Punch List Items or
latent defects), Landlord shall have no obligation for completion or remodeling of the Premises,
and Tenant shall accept the Premises in their “as is” condition on the Commencement Date.
Notwithstanding the foregoing, Landlord represents and warrants that all building systems
constituting part of Landlord’s Work shall be in good working condition, order and repair as of the
Commencement Date. Promptly after the Commencement Date, Landlord and Tenant agree to execute a
Commencement Certificate in the form attached hereto as Exhibit C setting forth the exact
Commencement Date and Expiration Date.




 









 








          5.2 Notwithstanding any provision to the contrary herein, on or before the date that is one
hundred fifty (150) days prior to the Commencement Date (the “Delivery Date”), Landlord shall
provide Tenant with access to the Premises. Item Nos. 1 through 7, inclusive, of “Initial
Landlord’s Work” described on Exhibit E attached hereto shall be completed on or before the
Delivery Date and remaining Item Nos. 8 through 13, inclusive, of “Initial Landlord’s Work”
described on said Exhibit E shall be completed not less than one hundred five (105) days
prior to the Commencement Date. Such Item Nos. 8 through 13, inclusive, of “Initial Landlord’s
Work” described on Exhibit E attached hereto shall be referred to herein as “Landlord’s Secondary
Initial Work.” Tenant shall be permitted continuous access to the Premises from and after the
Delivery Date to enable Tenant to construct the Tenant’s Finish Work (as defined in the Work
Letter) and install equipment, furniture, systems, telephone/data and otherwise perform such work
to prepare the Premises for Tenant’s occupancy. Landlord shall also provide Tenant with early
access to the Premises prior to the Delivery Date to allow Tenant to install wire, cabling,
conduits and other related equipment and facilities related to or serving the HVAC and electrical
systems at the Premises. Tenant and Landlord shall coordinate the timing and scope of such work at
the Premises prior to the Delivery Date in order to allow for any Tenant installations that may be
installed prior to the completion of the applicable portions of the Landlord’s Work. All such
early access to the Premises, regardless of whether it occurs before or after the Delivery Date,
shall not trigger the “Commencement Date” or the “Rent Commencement Date” of this Lease, and shall
be subject to such reasonable rules and regulations as shall be established by Landlord to protect
Landlord’s Work, minimize conflicts between contractors and subcontractors and maintain safety at
the Premises. Commencing on the Delivery Date, Tenant agrees that all terms and provisions of this
Lease shall be in effect, excluding, however, Tenant’s obligation to pay Rent which shall commence
on the Rent Commencement Date as provided in Section 1.8 above.




          5.3 Except as provided in the Work Letter, and except for any latent defects or Punch List
Items, taking possession of the Premises by Tenant on the Commencement Date shall be conclusive
evidence that the Premises are in the condition agreed between Landlord and Tenant and shall
constitute an acknowledgment by Tenant of satisfactory completion of any work which Landlord has
agreed to perform.




          5.4 Notwithstanding any provision to the contrary herein, Landlord represents and warrants to
Tenant that (a) to the best of Landlord’s knowledge, as of the Commencement Date, the Building and
the Premises shall be in material compliance with all environmental laws; (b) as of the
Commencement Date, the Building and the Premises shall be in material compliance with all
applicable zoning laws, land use laws, agreements and the requirements of the Title Restrictions
insofar as they relate to the Real Property described on Exhibit B and there shall be no
violations of the Title Restrictions which will materially interfere with Tenant’s use or occupancy
of the Premises and the Building; (c) the use of the Premises for general office purposes and for
the operation of a 24 hour per day, 7 day per week call center is permitted as of right at the Real
Property under all Applicable Legal Requirements; (d) Landlord has full power and authority to
enter into this Lease and has obtained all consents and taken all actions necessary in connection
therewith; (e) no other party has any possessory right to the Premises or has claimed the same; and
(f) Landlord shall acquire fee simple title to the Real Property on or before July 15, 2008
(“Acquisition Deadline Date”), subject to no mortgage other than a construction loan with a lender
to be selected by Landlord and whose identity shall be disclosed to Tenant no later than ten (10)
days following the date of the recording of such lender’s mortgage or deed of trust encumbering the
Real Property. In the event Landlord shall fail to acquire fee simple title to the Real Property
on or before the Acquisition Deadline Date, Tenant may thereafter elect to terminate this Lease by
giving written notice to Landlord of such election at any time prior to the acquisition of fee
simple title to the Real Property by Landlord.




          5.5 Within sixty (60) days after the Commencement Date, Landlord and Tenant may each have the
Premises measured by an architect or engineer (“Landlord’s Professional” or “Tenant’s
Professional,” as applicable) and provide the other party with written notice of such measurement
(“Revised Measurement”). If the Revised Measurement of either party reveals that the Rentable Area
of the Premises is less than or greater than that specified in this Lease, and upon acceptance of
the Revised Measurement by the other party, or pursuant to the determination of the Independent
Professional as set forth in the following grammatical paragraph, as applicable (“Final
Measurement”), then, effective as of the Rent Commencement Date, the amounts set forth in this
Lease for Base Rent and any other charges based upon the size of the
Premises shall be revised
based upon such Final Measurement. In such event, the parties hereto shall promptly execute a
supplemental
instrument evidencing the revised amounts; provided, however, that if the Final Measurement reveals
that the Rentable Area of the Premises is greater than 52,500 Rentable Square Feet, then Base Rent
and other charges based
upon the size of the




 









 





Premises shall be revised based upon a deemed square
footage of 52,500 Rentable Square Feet.




     If either party does not agree with the Revised Measurement determined by Landlord’s
Professional or Tenant’s Professional, as applicable, such party disputing the measurement may have
the Premises remeasured by its architect or engineer within thirty (30) days after such party’s
receipt of the Revised Measurement and the Landlord’s Professional and Tenant’s Professional shall
consult with each other to reconcile any difference. If Landlord’s Professional and Tenant’s
Professional are unable to mutually agree upon the Rentable Area of the Premises within fifteen
(15) days after the expiration of such 30-day period, then Landlord’s Professional and Tenant’s
Professional shall select a third qualified architect or engineer (“Independent Professional”)
within such 15-day period and such Independent Professional shall, within five (5) business days
after his or her selection, make a determination as to the gross square footage contained within
the Building and constituting the “Rentable Area” or “Rentable Square Feet” and provide notice of
the same in writing to the parties. The determination of the Independent Professional shall be
final and binding upon the parties. Such final measurement determined pursuant to the preceding
sentence shall be deemed the “Final Measurement” set forth in the preceding paragraph.



     Landlord shall be responsible for the payment of the fee of the Landlord’s Professional and
Tenant shall be responsible for the payment of the fee of the Tenant’s Professional. If an
Independent Professional is selected to measure the Premises, the fee of the Independent
Professional shall be borne equally by Landlord and Tenant.



     If Tenant shall have made any payments to Landlord prior to the Final Measurement, then a
prompt adjustment shall be made in said payments to reflect the revised amounts. Any overpayment
by Tenant shall be credited by Landlord against Rent next due and payable, and any underpayment by
Tenant shall be due to Landlord within thirty (30) days after the Final Measurement is complete.
The determination of the measurement shall be computed in accordance with the current BOMA Standard
Methods for Measuring Floor Area in Industrial Buildings for a Single Occupancy One Story Building
using the Exterior Wall Methodology.



          5.6 Notwithstanding any provision to the contrary contained in this Lease or the Work Letter
attached hereto as Exhibit D, in the event that the Commencement Date is later than three hundred
ninety (390) days following the date of the issuance by the City of Loveland, Colorado, of a
footing and foundation permit for the Building (subject to extension for any Force Majeure Delay or
any Tenant Delay, as defined in the Work Letter attached hereto as Exhibit D) (the “Outside
Termination Date”), then Tenant shall have the right to terminate this Lease by written notice to
Landlord at any time after the Outside Termination Date, but prior to the Commencement Date.




     6. OPERATING EXPENSES.



          6.1 Definitions. The additional terms below have the following meanings in this
Lease:




               (1) “Landlord’s Accountants” means that individual or firm employed by Landlord from time to
time to keep the books and records for the Building Complex, and/or to prepare the federal and
state income tax returns for Landlord with respect to the Building Complex, which books and records
shall be certified to by a representative of Landlord. All determinations made hereunder shall be
reasonably made by Landlord’s Accountants unless otherwise stated.



               (2) “Building Rentable Area” means approximately fifty thousand (50,000) gross square feet of
space in the Building, subject to adjustment in accordance with Section 5.5 above. If there is a
change in the aggregate Building Rentable Area as a result of an addition, partial destruction,
modification to building design, or similar cause which causes a reduction or increase in the
Building Rentable Area on a permanent basis, then Landlord’s Accountants shall make such
adjustments in the computations as are necessary to provide for such change.



               (3) “Tenant’s Pro Rata Share” or “Pro Rata Share” means the percentage set forth in Section
1.5.



               (4) “Operating Expense Year” means each calendar year during the Term, except that the first
Operating Expense Year begins on the Rent Commencement Date and ends on December 31 of such
calendar year and the last



 









 





Operating Expense Year begins on January 1 of the calendar year in which
this Lease expires or is terminated and ends on the date of such expiration or termination. If an
Operating Expense Year is less than twelve (12) months, Operating Expenses for such year shall be
prorated on a per diem basis.




               (5) “Operating Expenses” means all operating expenses of any kind or nature, paid or incurred
by the Landlord, which are in Landlord’s reasonable judgment necessary, appropriate, or customarily
incurred in connection with the operation, service and maintenance of the Building Complex,
including costs incurred in fulfillment of Landlord’s services, operation and maintenance
obligations under the terms of this Lease. “Operating Expenses” include:




          (a) All real property taxes and assessments, including assessments made pursuant to
Centerra Metropolitan District Nos. 2 and 4, levied against the Building Complex by any
governmental or quasi-governmental authority, including taxes, assessments, surcharges, or
service or other fees of a nature not presently in effect which are hereafter levied on the
Building Complex as a result of the use, ownership or operation of the Building Complex or
for any other reason, whether in lieu of or in addition to, any current real estate taxes
and assessments. Any assessments made by Centerra Metropolitan District Nos. 2 and 4
against the Building Complex shall be uniformly applicable to all other real property within
Centerra Metropolitan District Nos. 2 and 4. In no event shall taxes and assessments
include any federal or state income taxes levied or assessed on Landlord. Expenses for tax
consultants to contest taxes or assessments are also included as “Operating Expenses” (all
of the foregoing are collectively referred to herein as “Taxes”). Taxes also include
special assessments, license taxes, business license fees, business license taxes,
commercial rental taxes, levies, charges, penalties or taxes, imposed by any authority
against the Premises, Building Complex or any legal or equitable interest of Landlord
thereon. Special assessments are deemed payable in such number of installments permitted by
law, whether or not actually so paid, and include any applicable interest on such
installments. Taxes (other than special assessments) are computed on an accrual basis based
on the year in which they are levied, even though not paid until the following Operating
Expense Year. Tenant shall have the right to require Landlord to seek abatements of Taxes in
accordance with all applicable municipal procedures, and Landlord agrees to undertake such
action on behalf of Tenant, provided that the cost of any such abatement proceeding shall be
deemed an Operating Expense. After Tenant requests Landlord to seek an abatement of Taxes,
Landlord, in paying any Taxes, shall not make such payment in such an amount, in such a
manner, or at such a time as would prejudice any abatement proceeding unless failure to make
such payment would jeopardize Landlord’s interest in the Premises, Building or Real
Property, in which case payment shall be made so that such interest is not so jeopardized.
Notwithstanding the foregoing or any provision to the contrary herein, the following shall
be excluded from Taxes and shall be paid solely by Landlord: inheritance, estate,
succession, transfer, gift, franchise, or capital stock tax, or any income taxes arising out
of or related to ownership and operation of income producing real estate, or any excise
taxes imposed upon Landlord based upon gross or net rentals or other income received by it;




          (b) Costs of supplies, including costs of relamping and replacing ballasts in all
Building standard tenant lighting;




          (c) Costs of energy for the Building Complex (except to the extent paid directly by
Tenant to the applicable service provider), including costs of propane, butane, natural gas,
steam, electricity, solar energy and fuel oils, coal or any other energy sources;




          (d) Costs of water and sanitary and storm drainage services;




          (e) Costs of security services;



 









 






          (f) Costs of general maintenance, repairs, and replacements including costs under HVAC
and other mechanical maintenance contracts; and repairs and replacements of equipment used
in maintenance and repair work;




          (g) Costs of maintenance, repair and replacement of landscaping;




          (h) Insurance premiums for the Building Complex, including all-risk or multi-peril
coverage, together with loss of rent endorsement; the part of any claim paid under the
deductible portion of any insurance policy carried by Landlord; public liability insurance;
and any other insurance carried by Landlord on any component parts of the Building Complex;




          (i) Except as otherwise provided herein, all labor costs, including wages, costs of
worker’s compensation insurance, payroll taxes, fringe benefits, including pension,
profit-sharing and health benefits, and legal fees and other costs incurred in resolving any
labor dispute;




          (j) Professional building management fees, costs and expenses, including costs of
office space and storage space required by management for performance of its services (said
building management may, at Landlord’s option, be performed either by a third-party or
Landlord-affiliated property management company), in an amount not to exceed four percent
(4%) of all gross receipts paid to Landlord pursuant to this Lease;




          (k) Legal, accounting, inspection, and other consulting fees (including fees for
consultants for services designed to produce a reduction in Operating Expenses or improve
the operation, maintenance or state of repair of the Building Complex);




          (l) Costs of capital improvements and structural repairs and replacements to the
Building Complex to conform to changes subsequent to the Commencement Date in any statutes,
rules, regulations, zoning laws, other laws, codes, ordinances, decrees and orders of
applicable federal, state and local governmental authorities (“Applicable Laws”) (all such
capital improvements, repairs and replacements herein referred to as “Required Capital
Improvements”); and the costs of any capital improvements and structural repairs and
replacements designed primarily to reduce Operating Expenses, but only to the extent of any
resulting reductions in Operating Expenses (herein “Cost Savings Improvements”).
Expenditures for Required Capital Improvements and Cost Savings Improvements will be
amortized at a market rate of interest over the useful life of such capital improvement (as
determined in accordance with generally accepted accounting principles);




          (m) Costs incurred for Landlord’s Accountants including costs of any experts and
consultants engaged to assist in making the computations; and




          (n) All dues, assessments, impositions and charges payable to associations.


“Operating Expenses” do not include:




                    (i) Costs of work which Landlord performs for any tenant, including permit, license and
inspection costs, incurred with respect to the installation of tenants’ or other occupants’
improvements or incurred in renovating or otherwise improving, decorating, painting or
redecorating vacant space for tenants or other occupants of the Building Complex;



                    (ii) Costs incurred by Landlord to the extent that Landlord is reimbursed by insurance
proceeds or is otherwise reimbursed;



                    (iii) Leasing commissions, advertising and promotional expenses, and other costs
incurred in leasing space in the Building Complex, and costs of acquisition and maintenance
of signs in or on the
Building Complex identifying the owner of the Building Complex or other tenants;



 









 





                    (iv) Costs of repairs or rebuilding necessitated by condemnation;



                    (v) Any bad debt expenses and interest, principal, points and fees on debts or
amortization on any mortgage or other debt instrument encumbering the Building, Building
Complex or the Real Property;



                    (vi) Depreciation, amortization and interest payments, except on equipment, materials,
tools, supplies and vendor type equipment purchased by Landlord to enable Landlord to supply
services Landlord might otherwise contract for with a third party where such depreciation,
amortization and interest payments would otherwise have been included in the charge for such
third party’s services, all as determined in accordance with generally accepted accounting
principles, consistently applied, and when depreciation or amortization is permitted or
required, the item shall be amortized over its reasonably anticipated useful life;



                    (vii) To the extent paid directly by the Tenant, as hereinafter provided, electrical
costs for the Premises and janitorial services for the Premises;



                    (viii) Costs that represent income or use taxes of Landlord other than use taxes
charged to Landlord for equipment, materials or supplies used by Landlord in connection with
maintenance and repair as set forth above; and salaries and other benefits paid to the
employees of Landlord to the extent customarily included in or covered by a management fee
(if any), provided that in no event shall Operating Expenses include salaries and/or
benefits attributable to personnel above the level of Building manager;



                    (ix) Any ground or underlying lease rental;



                    (x) Marketing costs, including leasing commissions, attorneys’ fees (in connection with
the negotiation and preparation of letters, deal memos, letters of intent, leases, subleases
and/or assignments), space planning costs, and other costs and expenses incurred in
connection with lease, sublease and/or assignment negotiations and transactions with present
or prospective tenants or other occupants of the Building Complex;



                    (xi) Expenses voluntarily incurred by Landlord (but not mandatory expenses for which
payment by Landlord is required) in connection with services or other benefits which are not
offered to Tenant or for which Tenant is charged for directly;



                    (xii) Costs incurred by Landlord due to the violation by Landlord or any tenant of the
terms and conditions of any lease of space in the Building Complex or any Title
Restrictions;



                    (xiii) Management fees paid or charged by Landlord in connection with the management of
the Building, except to the extent expressly provided above;



                    (xiv) Rent for any office space occupied by Building management personnel to the extent
the size or rental rate for of such office space exceeds the size or fair market rental
value of office space occupied by management personnel of comparable buildings in the
vicinity of the Building;



                    (xv) Amounts paid to Landlord or to subsidiaries or affiliates of Landlord for goods
and/or services in the Building to the extent the same exceeds the costs of such goods
and/or services rendered by unaffiliated third parties on a competitive basis, excluding
property management services incurred pursuant to Section 6.1(5)(j) which shall be an
“Operating Expense;”



                    (xvi) Landlord’s general corporate overhead and general and administrative
expenses;



                    (xvii) Any compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord;



 









 





                    (xviii) Services provided, taxes, attributable to, and costs incurred in connection
with the operation of any retail, restaurant and garage operations for the Building, and any
replacement garages or parking facilities and any shuttle services;



                    (xix) Costs incurred in connection with upgrading the Building to comply with laws,
rules, regulations and codes in effect prior to the Commencement Date;



                    (xx) Except as expressly provided in Section 6.1(5)(a), all assessments and premiums
which are not specifically charged to Tenant because of what Tenant has done, which can be
paid by Landlord in installments, shall be paid by Landlord in the maximum number of
installments permitted by law and not included as Operating Expenses except in the year in
which the assessment or premium installment is actually paid;



                    (xxi) Costs arising from the gross negligence or willful misconduct of Landlord or
other tenants or occupants of the Building or their respective agents, employees, licensees,
vendors, contractors or providers of materials or services;



                    (xxii) Costs arising from Landlord’s charitable or political contributions;



                    (xxiii) Costs arising from latent defects or original design defects in the Building
construction, materials or equipment, or repair thereof;



                    (xxiv) Costs for sculpture, paintings or other objects of art;



                    (xxv) Costs and assessments arising under the Title Restrictions resulting from or
attributable to (i) procuring building permits in connection with the Landlord’s Work, or
(ii) the installation or connection of utilities and drainage facilities at the Real
Property;



                    (xxvi) Costs and assessments arising under the Declaration resulting from or
attributable to Special Assessments (as defined in the Declaration); and



                    (xxvii) Costs associated with the operation of the business of the entity which
constitutes Landlord as the same are distinguished from the costs of operation of the
Building, including accounting and legal matters, costs of defending any lawsuits with any
mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating,
financing, mortgaging or hypothecating any of Landlord’s interest in the Building, costs
incurred in connection with any disputes between Landlord and its employees, between
Landlord and Building management, or between Landlord and other tenants or occupants.



               (6) Landlord has prepared in good faith an estimated budget for Operating Expenses for a full
twelve (12) month period attached hereto as Exhibit F. Such estimate is provided without
representation or warranty as to the accuracy thereof.



          6.2 Estimated Payments. During each Operating Expense Year beginning with the first
month of the first Operating Expense Year and continuing each month thereafter throughout the Term,
Tenant shall pay Landlord, at the same time as Base Rent is paid, an amount equal to Tenant’s Pro
Rata Share of one-twelfth (1/12) of Landlord’s estimate of any Operating Expenses for the
particular Operating Expense Year (“Estimated Payment”).




 









 








          6.3 Annual Adjustments.




               (1) Within ninety (90) days after the end of each Operating Expense Year, Landlord shall
submit to Tenant a statement setting forth the exact amount of Tenant’s Pro Rata Share of the
Operating Expenses for such Operating Expense Year (the “Operating Statement”). As soon as
reasonably possible after the beginning of the second Operating Expense Year (but in no event in
excess of ninety (90) days thereafter), Landlord’s Operating Statement shall set forth the
difference, if any, between Tenant’s actual Pro Rata Share of Operating Expenses allocable to the
Operating Expense Year just completed and the Estimated Payments by Tenant allocable to such
Operating Expense Year. Each Operating Statement shall also set forth the projected increase or
decrease, if any, in Operating Expenses for the new Operating Expense Year and the resulting
increase or decrease in Tenant’s monthly Rent for such new Operating Expense Year above or below
the Rent paid by Tenant for the immediately preceding Operating Expense Year.



               (2) To the extent that Tenant’s Pro Rata Share of Operating Expenses for the period covered by
an Operating Statement is different from the Estimated Payments by Tenant allocable to the
Operating Expense Year just completed, Tenant shall pay Landlord any deficiency within thirty (30)
days following receipt by Tenant of the Operating Statement, or receive a credit from Landlord
against the next due Rent in an amount equal to any overpayment by Tenant (provided, however, that
if the Lease is terminated, or to the extent that the amount of such overpayment exceeds Rent
payable for the remainder of the Term of this Lease, Landlord shall provide Tenant with a cash
reimbursement within thirty (30) days after delivery of the Operating Statement), as the case may
be. Until Tenant receives an Operating Statement, Tenant’s Estimated Payment for the new Operating
Expense Year shall continue to be paid at the prior Estimated Payment amount, but Tenant shall
commence payment of Rent based on the new Estimated Payment amount beginning on the first day of
the calendar month following the calendar month in which Tenant receives the new Operating
Statement. Tenant shall also pay Landlord or deduct from the Rent next due and payable, as the
case may be, on the date required for the first payment, as adjusted, the difference, if any,
between the Estimated Payment for the new Operating Expense Year set forth in the Operating
Statement and the Estimated Payment actually paid during the new Operating Expense Year (provided,
however, that if the Lease is terminated, or to the extent that the amount of such difference
exceeds Rent payable for the remainder of the Term of this Lease, Landlord shall provide Tenant
with a cash reimbursement within thirty (30) days after delivery of the Operating Statement). If,
during any Operating Expense Year, there is a change in the information on which Tenant is then
making its Estimated Payments so that the prior estimate is no longer accurate, Landlord may revise
the estimate and there shall be such corresponding adjustments made in the monthly Rent on the
first day of the calendar month following notice to Tenant as shall be necessary by either
increasing or decreasing, as the case may be, the amount of monthly Rent then being paid by Tenant
for the balance of the Operating Expense Year.



          6.4 Miscellaneous. In no event will any decrease in Rent pursuant to any provision
hereof result in a reduction of Rent below the Base Rent. Delay by Landlord in submitting any
Operating Statement for any Operating Expense Year does not affect the provisions of this Section
except to the extent provided hereunder, or constitute a waiver of Landlord’s rights for such
Operating Expense Year or any subsequent Operating Expense Years. Notwithstanding any provision to
the contrary contained herein, in no event shall Tenant be responsible for any adjusted or
additional Rent amounts charged by Landlord with respect to any particular Operating Expense Year
unless invoiced to Tenant on or before the date that is eighteen (18) months after the conclusion
of such Operating Expense Year.




          6.5 Dispute. If Tenant disputes an adjustment submitted by Landlord or a proposed
increase or decrease in the Estimated Payment, Tenant shall give Landlord notice of such dispute
within one hundred eighty (180) days after Tenant’s receipt of the adjustment. If Tenant does not
give Landlord timely notice, Tenant waives its right to dispute the particular adjustment. If
Tenant timely objects, Tenant may engage its own certified public accountants (“Tenant’s
Accountants”) to verify the accuracy of the statement complained of or the reasonableness of the
estimated increase or decrease. If Tenant’s Accountants determine that an error has been made,
Landlord’s Accountants and Tenant’s Accountants shall endeavor to agree upon the matter, failing
which such matter shall be submitted to an independent certified public accountant selected by
Landlord, with Tenant’s reasonable approval, for a determination which will be conclusive and
binding upon Landlord and Tenant. All costs incurred by Tenant for Tenant’s Accountants shall be
paid for by Tenant unless Tenant’s Accountants
disclose an error, acknowledged by Landlord’s Accountants (or found to have occurred through the
above independent determination), of more than five percent (5%) in the computation of the total
amount of Operating Expenses, in which event



 









 




Landlord shall pay the reasonable costs incurred by
Tenant to obtain such audit. Notwithstanding the pendency of any dispute, Tenant shall continue to
pay Landlord the amount of the Estimated Payment or adjustment determined by Landlord’s Accountants
until the adjustment has been determined to be incorrect. If it is determined that any portion of
the Operating Expenses were not properly chargeable to Tenant, then Landlord shall credit such
amount against Rent next due and payable (provided, however, that if the Lease is terminated, or to
the extent that such amount exceeds Rent payable for the remainder of the Term of this Lease,
Landlord shall provide Tenant with a cash reimbursement within thirty [30] days after such
determination).




     7. SERVICES.



          7.1 Subject to the provisions below, Landlord agrees, in accordance with standards reasonably
determined by Landlord from time to time for the Building (provided that such standards shall be at
levels comparable to those at similar first class buildings within the master-planned community
known as “Centerra” or in other comparable master-planned communities situated in northern
Colorado): (1) to furnish hot and cold running water at those points of supply for general use by
Tenant; and (2) to furnish heated or cooled air (as applicable), electrical current, and
maintenance (to the extent required under Section 11 below) to the Premises for standard office and
call center use (items [1] and [2] are jointly called “Services”). The costs incurred by Landlord
in providing such Services, except for the initial installation costs in connection therewith
(which shall be performed by Landlord at its sole cost and expense to the extent included in
Landlord’s Work), shall be included within “Operating Expenses,” subject to the Amortization
Requirement (defined below). Tenant shall have access to the Premises 24 hours a day, 7 days a week
for the Permitted Use.




          7.2 Tenant shall pay for the costs (whether directly or as an Operating Expense) of all
utility deposits, fees and monthly service charges for electricity and natural gas services to the
Premises. Tenant shall also pay the cost of replacing light bulbs and/or tubes and ballasts used
in all lighting in the Premises.




          7.3 Landlord may, upon prior written notice to Tenant (except that in the case of emergency
Landlord may provide written notice to Tenant within a reasonable time thereafter), temporarily
discontinue, reduce, or curtail Services to the extent necessary due to accident, casualty repairs,
alterations, strikes, lockouts, Applicable Legal Requirements, or any other happening beyond
Landlord’s reasonable control. Except as provided in Section 7.4 below, Landlord is not liable for
damages to Tenant or any other party as a result of any interruption, reduction, or discontinuance
of Services (either temporary or permanent) nor shall the temporary occurrence of any such event be
construed as an eviction of Tenant, or cause or permit an abatement, reduction or setoff of Rent
(except as specifically provided in this Lease), or operate to release Tenant from Tenant’s
obligations.




          7.4 An “Abatement Event” shall be defined as an event or circumstance (other than those
addressed in Sections 18 and 19 below) that is within the reasonable control of Landlord and which
prevents Tenant from using the Premises or any portion thereof, as a result of any failure to
provide Services (as defined in Section 7.1 above) or access to the Premises. Tenant shall give
Landlord notice (“Abatement Notice”) of any such Abatement Event, and if such Abatement Event
continues beyond the “Eligibility Period” (as that term is defined below), then the Base Rent and
Tenant’s other monetary obligations to Landlord shall be abated entirely or reduced, as the case
may be, after expiration of the Eligibility Period for such time that Tenant continues to be so
prevented from using, and does not use, the Premises or a portion thereof, in the proportion that
the rentable area of the portion of the Premises that Tenant is prevented from using, and does not
use, bears to the total rentable area of the Premises; provided, however, in the event that Tenant
is prevented from using, and does not use, a portion of the Premises for a period of time in excess
of the Eligibility Period and the remaining portion of the Premises is not sufficient to allow
Tenant to effectively conduct its business therein, and if Tenant does not conduct its business
from such remaining portion, then for such time after expiration of the Eligibility Period during
which Tenant is so prevented from effectively conducting its business therein, Rent to Landlord
shall be abated entirely for such time as Tenant continues to be so prevented from using, and does
not use, the Premises. The term “Eligibility Period” shall mean a period
of three (3) consecutive days after Landlord’s




 









 




receipt of any Abatement Notice(s). In addition, if an Abatement Event continues for one hundred
eighty (180) consecutive days after any Abatement Notice, Tenant may terminate this Lease by
written notice to Landlord at any time prior to the date such Abatement Event is cured by Landlord.




          7.5 Tenant shall promptly notify Landlord of any accidents or material defects in the Building
of which Tenant actually becomes aware, including defects in pipes, electric wiring, and HVAC
equipment, and of any condition which may cause material injury or damage to the Building or any
person or property therein.




     8. QUIET ENJOYMENT. So long as this Lease is in full force and effect, Tenant is
entitled to the quiet enjoyment and peaceful possession of the Premises, subject to the provisions
of this Lease; the statutes, rules, regulations, zoning laws, other laws, codes, ordinances,
decrees and orders of applicable federal, state and local governmental authorities, Title
Restrictions and any other recorded instruments now or hereafter in effect (together, “Applicable
Legal Requirements”).



     9. DEPOSIT. Tenant has deposited and will keep on deposit at all times during the Term
with Landlord the Deposit as security for the payment and performance of Tenant’s obligations under
this Lease. If, at any time, Tenant is in default (beyond applicable notice and cure periods),
Landlord has the right to apply the Deposit, or so much thereof as necessary, in payment of Rent,
in reimbursement of any expense incurred by Landlord, and in payment of any damages incurred by
Landlord by reason of such Event of Default. In such event, Tenant shall on demand of Landlord
forthwith remit to Landlord a sufficient amount in cash to restore the Deposit to the original
amount. If the entire Deposit has not been utilized, the remaining amount will be refunded to
Tenant or to whoever is then the holder of Tenant’s interest in this Lease, without interest,
within thirty (30) days after full performance of this Lease by Tenant. Landlord may commingle the
Deposit with other funds of Landlord. Landlord may deliver the Deposit to any purchaser of
Landlord’s interest in the Premises, and, in such an event, Landlord shall be discharged from
further liability therefor. Tenant agrees that if a Mortgagee succeeds to Landlord’s interest in
the Premises by reason of foreclosure or deed in lieu of foreclosure, Tenant has no claim against
the Mortgagee for the Deposit or any portion thereof unless such Mortgagee has actually received
the same from Landlord (Landlord hereby agreeing to deliver such amounts to any such Mortgagee).
If claims of Landlord exceed the Deposit, Tenant shall remain liable for the balance.



     10. CHARACTER OF OCCUPANCY.



          10.1 Tenant shall be entitled to occupy the Premises for the Permitted Use and for no other
purpose, and shall pay on demand for any damage to the Premises caused by misuse or abuse by
Tenant, Tenant’s agents or employees, or any other person entering upon the Premises under express
or implied invitation of Tenant (collectively, “Tenant’s Agents”). Tenant, at Tenant’s expense,
shall comply with all Applicable Legal Requirements with respect to the occupation or alteration of
the Premises, provided Tenant shall not be responsible for structural repairs or alterations except
to the extent set forth in Section 6.1(5)(l) above. Tenant shall not commit or permit waste or any
nuisance on or in the Premises. Notwithstanding the foregoing or any other provision of this
Lease, however, Tenant shall not be responsible for compliance with any Applicable Legal
Requirements or the like requiring (i) structural repairs or modifications or (ii) repairs or
modifications to the utility or building service equipment except to the extent the same are due to
Tenant’s negligence or willful misconduct (but the costs of such repairs or modifications to the
utility or building service equipment which are not the result of original defects in construction
or workmanship shall constitute an Operating Expense as set forth in Section 11.1 below), or (iii)
installation of new building service equipment, such as fire detection or suppression equipment,
unless such repairs, modifications, or installations described in (i) through (iii) above shall
(a) be required pursuant to Section 6.1(5)(l) above, and in such an event only to the extent so
required, (b) be due to Tenant’s particular manner of use of the Premises (as opposed to office and
call center use generally), or (c) be due to the negligence or willful misconduct of Tenant or any
agent, employee, or contractor of Tenant.




          10.2 Tenant shall, at its own cost and expense, cause the removal and disposal of Tenant’s
refuse and garbage. Disposal of all refuse and garbage shall be accomplished in accordance with all
Applicable Legal Requirements.




 









 








     11. MAINTENANCE, ALTERATIONS AND REENTRY.



          11.1 Throughout the Term, Tenant shall be responsible for all repairs and replacements to (i)
all interior, non-structural and non-building system elements of the Premises, and (ii) Tenant’s
Generator, UPS equipment, and the HVAC equipment serving Tenant’s computer server room at the
Premises. Except as provided in the preceding sentence, Landlord shall provide upkeep,
maintenance, replacement and repairs to (i) HVAC, mechanical, life safety, electrical and other
building systems which serve the Premises, the cost of which shall, subject to the Amortization
Requirement, constitute an Operating Expense; (ii) the Building, the Building Complex and all
Common Areas, including the Building’s roof, floor slabs, exterior, exterior windows, exterior
lighting, foundation and structural elements, the cost of which shall, subject to the Amortization
Requirement, constitute an Operating Expense (except for structural repairs and construction
defects which shall be repaired at the sole expense of Landlord and which shall not be deemed an
Operating Expense); and (iii) to the extent located within the Real Property, the roadways,
walkways, landscaping and parking areas serving the Building and the utility lines and systems
serving the Building and Building Complex, and roadway snow and ice removal, the cost of which,
excluding initial installation and construction costs, shall constitute an Operating Expense. To
the extent any such Operating Expenses are incurred for payment of capital improvements or repairs,
such costs shall be amortized at a market rate of interest over the useful life of such capital
improvements as determined in accordance with generally accepted accounting principles (the
“Amortization Requirement”). Notwithstanding any term or condition of this Lease to the contrary,
in the event of emergency (and, for the purposes of this Section 11.1 any condition that threatens
to materially interrupt Tenant’s business operations shall constitute an emergency), Tenant shall
have the right to perform Landlord’s repairs, maintenance or service to the extent necessary to
alleviate the emergency, provided that Tenant shall notify Landlord of the emergency and the
self-help activity as soon as is practicable under the circumstances. To the extent that the costs
incurred by Tenant for such emergency repairs do not otherwise constitute an “Operating Expense” as
defined in this Lease, Landlord shall reimburse Tenant for the reasonable cost of Tenant’s
performance of Landlord’s repair, maintenance or service obligation pursuant to this Section 11.1
within thirty (30) days after Tenant’s demand therefor, which shall be accompanied by a detailed
description of the costs incurred and paid invoices for the same. Except as provided in this
Section or otherwise expressly required in this Lease, Landlord is not required to make
improvements or repairs to the Premises during the Term.




          11.2 Landlord or Landlord’s agents may enter the Premises (i) at any time to respond to
emergency conditions and (ii) upon forty-eight (48) hours prior notice to Tenant for non-emergency
maintenance, examination and inspection in connection with Landlord’s obligations hereunder, or to
perform, if Landlord elects, during the continuation of any Event of Default only, any obligations
of Tenant which Tenant fails to perform or such cleaning, maintenance, repairs, replacements,
additions, or alterations as Landlord deems necessary for the safety, improvement, or preservation
of the Premises or other portions of the Building Complex or as required by Applicable Legal
Requirements or this Lease. Without limiting the foregoing, upon forty-eight (48) hours prior
notice to Tenant, Landlord or Landlord’s agents may also show the Premises to prospective
purchasers and any holder of a mortgage or deed of trust affecting all or any portion of the
Building Complex (in any case, a “Mortgagee”), and, during the last six (6) months of the term, to
any prospective tenants. Any such entry or reentry by Landlord shall not constitute an eviction
or entitle Tenant to abatement of Rent, provided that Landlord shall upon any such entry, (i) use
reasonable efforts to minimize any disruption to Tenant’s use or occupancy of the Premises and
(ii) use reasonable efforts to coordinate Landlord’s activities with Tenant’s activities in order
to avoid unnecessary interference with Tenant’s use or occupancy of the Premises. Landlord may
make such alterations or changes in other portions of the Building Complex as Landlord desires so
long as such alterations and changes do not unreasonably interfere with Tenant’s occupancy, access
or use of the Premises, or adversely affect Tenant’s parking or other rights hereunder. Landlord
may use the Common Areas and one (1) or more entrances to the Building Complex as may be necessary
in Landlord’s judgment to complete such work. Notwithstanding anything to the contrary contained
in this Section 11.2; (a) Landlord agrees that, except in the event of an emergency, Landlord shall
not perform any work in the Premises other than work expressly required to be performed by Landlord
under this Lease; and (b) Tenant may establish reasonable requirements applicable to Landlord’s
permitted entry into the Premises for the security of Tenant’s equipment, confidential information,
documents and other personal property kept at the Premises and for preventing interruption of
Tenant’s business operations at the Premises, and Landlord agrees to comply with all such
reasonable requirements when exercising any Landlord right to enter the Premises.




     12. ALTERATIONS AND REPAIRS BY TENANT.



 









 





          12.1 Except for the Tenants’ Finish Work, Tenant shall not make any alterations to the
Premises during the Term (collectively “Alterations”), that (i) are structural in nature; (ii)
affect the exterior appearance of the Building; (iii) are reasonably projected to cost Two Hundred
Thousand Dollars ($200,000.00) or more per Alteration in any one (1) instance, including, without
limitation, any instance when by an amendment of or addition to the scope of work of a Permitted
Alteration, the cost will then exceed such amount; (iv) in Landlord’s reasonable opinion,
materially adversely affect the value of the Building or that may reasonably be expected to cause
damage to one or more of the Building’s various operating, mechanical, electrical or plumbing
systems (or increases Tenant’s usage of electricity beyond building design standards); or (v)
otherwise adversely affect operation of the Building and/or one or more of said systems (except to
the extent such Alteration will result in an upgrade to the system in question or otherwise shall
provide modifications thereto that shall eliminate any such adverse effect), without Landlord’s
prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
Notwithstanding any provision to the contrary contained herein, Landlord agrees that Tenant shall
have the right (but not the obligation), without Landlord’s consent, to install uninterrupted power
source (“UPS”) equipment within the Premises, a trash dumpster at the Real Property, and install
HVAC equipment and related facilities in the computer server room at the Premises. Alterations
which are not subject to the provisions of subparts (i) through (v) of this Section 12.1 shall be
deemed to be “Permitted Alterations.”




          12.2 Tenant may make the Permitted Alterations without Landlord’s prior written consent but
otherwise subject to the provisions of this Lease including, without limitation, this Section 12.
Within sixty (60) days after the expiration of each calendar year during the term hereof, Tenant
shall deliver to Landlord a reasonably detailed statement of all Permitted Alterations performed by
Tenant during such year. Such report shall be accompanied by copies of any as-built plans Tenant
may have prepared (under Applicable Legal Requirements or otherwise) or caused to be prepared in
connection with any such Permitted Alterations.




          12.3 No Alterations, other than Permitted Alterations, shall be undertaken or begun by Tenant
until Landlord has approved the written plans and specifications for such work, which approval
shall not be unreasonably withheld, delayed or conditioned. Landlord agrees to respond to any
request for approval of Alterations, including approval of the written plans and specifications for
such work, within ten (10) days after receipt thereof. If Landlord fails to respond to a request
for approval within such ten (10) day period, Tenant shall have the right to send a second notice,
indicating that Landlord’s approval will be deemed granted if not withheld within ten (10) days,
and if Landlord shall fail to respond within ten (10) days after delivery of such second notice,
Landlord’s approval shall be deemed to have been granted. No amendments or additions to such plans
and specifications shall be made without the prior written consent of Landlord, which shall be
governed by the foregoing provisions, except that the initial response period shall be ten (10)
days. Landlord’s consent or approval of the plans, specifications and working drawings for any
Alterations shall not constitute any warranty or representation by Landlord (and shall not impose
any liability on Landlord) as to their completeness, design sufficiency, or compliance with
Applicable Legal Requirements. Tenant shall at its cost: pay all actual out-of-pocket engineering
and design costs paid by Landlord as to all Alterations (other then Permitted Alterations), obtain
all governmental permits and approvals required, and cause all Alterations to be completed in
compliance with Applicable Legal Requirements and requirements of Landlord’s insurance. All such
work relating to Alterations shall be performed in a good and workmanlike manner, using new
materials and equipment at least equal in quality to the initial Tenant finish. Tenant shall
deliver to Landlord prior to commencement of any Alterations, certificates issued by insurance
companies qualified to do business in the State of Colorado, evidencing that worker’s compensation,
public liability insurance, products liability insurance, and property damage insurance (in
amounts, with companies and on forms reasonably satisfactory to Landlord) are in force and
maintained by all contractors and subcontractors engaged to perform such work. All liability
policies shall name Landlord, the manager of the Building, as designated by Landlord from time to
time in accordance with Section 29 below (the “Building Manager”), and Mortgagee as additional
insureds. Each certificate shall provide that the insurance may not be cancelled or modified
without thirty (30) days’ prior written notice to Landlord and Mortgagee. Subject to Section 11.2
above, Landlord also has the right to post notices in the Premises in locations designated by
Landlord stating that Landlord is
not responsible for payment for such work and containing such other information as Landlord deems
necessary. All such work shall be performed in a manner which does not



 









 






unreasonably interfere with Landlord, or impose material additional expense upon Landlord in the
operation of the Building Complex (unless Tenant agrees in writing to reimburse Landlord for the
same).




          12.4 Provided that Tenant shall satisfy the requirements set forth in Section 12.3 above and
without limiting the rights of Tenant under Section 12.2 above, Landlord hereby authorizes Tenant
to, at Tenant’s election (i) construct, install and operate, at Tenant’s sole cost, a cafeteria at
the Premises within the area shown on Exhibit G, including any required improvements to the
base building systems, such as grease traps, exhaust systems and similar improvements required in
connection with such cafeteria and, notwithstanding any provision of Section 14 below to the
contrary, to allow third party operation of the cafeteria for the benefit of Tenant, its employees,
tenants, guests and invitees; (ii) construct and install an exterior dining area for employees
within the area shown on Exhibit G, subject to the requirement that the exterior dining
area first be reviewed and approved by the Centerra Design Review Committee established pursuant to
the Title Restrictions (“Centerra Design Review Committee”); (iii) construct, install and,
notwithstanding any provision of Section 14 below to the contrary, allow a third party to operate,
at Tenant’s sole cost, an exercise room and locker room at the Premises within the area shown on
Exhibit G; (iv) install an emergency generator and pad sites adjacent to the Building
within the area shown on Exhibit G, at Tenant’s sole expense, provided that the Centerra
Design Review Committee shall review and approve such installation and that the installation is in
compliance with the Millennium GDP Guidelines (“Tenant’s Generator”); and (v) install a pole
mounted basketball hoop and backboard at the Parking Lot in a location to be mutually agreed upon
by Landlord and Tenant.




          12.5 Tenant shall keep the Premises in as good order, condition, and repair, as on the
Commencement Date, loss by fire or other casualty, condemnation and ordinary wear excepted.




          12.6 All Alterations, including partitions, paneling, carpeting, and light fixtures affixed to
the Premises and the drapes or other window coverings (but not including movable office furniture
not attached to the Building) are deemed a part of the real estate and the property of Landlord and
shall remain upon and be surrendered with the Premises at the end of the Term, whether by lapse of
time or otherwise, unless Landlord notifies Tenant no later than fifteen (15) days prior to the end
of the Term that it elects to have Tenant remove all or part of such Alterations, and in such
event, Tenant shall at Tenant’s expense promptly remove the Alterations specified and restore the
Premises to their prior condition, reasonable wear and tear excepted. Notwithstanding the foregoing
or any provision to the contrary contained herein, (i) Tenant shall retain title to and be entitled
to remove any movable office furniture, equipment and other personal property at the Premises
(including, without limitation, projector screens, whiteboards, cubes, Tenant’s Generator, Tenant’s
UPS equipment, and the HVAC equipment serving Tenant’s computer server room at the Premises), and
(ii) Tenant shall not be required or permitted to remove from the Premises any portion of the
Landlord’s Work, the Tenant’s Finish Work or the Alterations to the extent such improvements or
portions thereof constitute standard and customary Class A general office improvements. In
addition, Tenant shall not be required to remove any improvements that Landlord designates (or is
deemed to designate) as not requiring removal in accordance with Section 12.7 below.




          12.7 At the time Tenant requests Landlord’s consent to any Alterations (including the Tenant’s
Finish Work), Tenant may request that Landlord designate which elements of such Alterations must be
removed pursuant to this Section 12 and Landlord shall make that designation on the date Landlord
gives Landlord’s consent to such Alterations. If Tenant’s request is provided in accordance with
the foregoing and if Landlord fails to so notify Tenant whether Tenant shall be required to remove
the subject Alterations at the expiration or earlier termination of this Lease, it shall be deemed
that Landlord shall not require the removal of the subject Alterations.




     13. MECHANICS’ LIENS. Tenant shall pay for all work done on the Premises by Tenant or
at its request of a character which may result in liens on Landlord’s or Tenant’s interest and
Tenant will keep the Premises free of all mechanics’ liens, and other liens on account of such
work. Tenant indemnifies, defends, and saves Landlord harmless from all liability, loss, damage,
or expenses, including attorneys’ fees, on account of any claims of laborers, materialmen or others
for work performed or for materials or supplies furnished to Tenant or persons claiming under
Tenant. If any lien is recorded against the Premises or Real Property or any suit affecting title
thereto is commenced as a result of such work, or supplying of
materials, Tenant shall cause such lien to be removed of record within fifteen (15) days after
notice from Landlord or Tenant shall post a sufficient bond against the same in an amount equal to
one hundred fifty percent (150%) of the claimed



 









 







mechanic’s lien designating Landlord as the
beneficiary thereof. If Tenant desires to contest any claim, Tenant must furnish Landlord adequate
security of at least one hundred fifty percent (150%) of the amount of the claim, plus estimated
costs and interest and, if a final judgment establishing the validity of any lien is entered,
Tenant shall promptly pay and satisfy the same. If Tenant fails to proceed as aforesaid, Landlord
may pay such amount and any costs, and the amount paid, together with reasonable attorneys’ fees
incurred, shall be payable to Landlord upon demand.



     14. SUBLETTING AND ASSIGNMENT.



          14.1 Tenant, as well as any other party that has acquired an interest in this Lease by virtue
of a sublease or assignment, shall not sublet any part of the Premises nor assign or otherwise
transfer this Lease or any interest herein (sometimes referred to as “Transfer,” and the subtenant
or assignee may be referred to as “Transferee”) without the consent of Landlord first being
obtained, which consent will not be unreasonably withheld, conditioned or delayed, provided that:
(1) Tenant must give Landlord written notice of the proposed Transfer pursuant to the provisions of
Section 14.3 below; (2) the Transferee is engaged in the Permitted Use and the Premises will be
used in a manner which does not conflict with any exclusive use rights granted, prior to the date
hereof, to any other tenant of any other building within the project known as Centerra (provided
that Landlord gives Tenant prior written notice of all such restrictions and further provided that
no such exclusive use rights shall prohibit the use of the Premises for the Permitted Uses); (3) no
continuing Event of Default on the part of Tenant exists at the time it makes its request; and (4)
the Transferee is not a governmental or quasi-governmental agency. “Transfer” includes a sale by
Tenant of substantially all of its assets, a merger of Tenant with another corporation, the
transfer of twenty-five percent (25%) or more of the stock in a corporate tenant, or transfer of
twenty-five percent (25%) or more of the beneficial ownership interests in a partnership or limited
liability company or other non-corporate tenant.




          14.2 Following any Transfer in accordance with this Section 14, Landlord may, during an Event
of Default by Tenant, collect rent from the Transferee and apply the net amount collected to the
Rent, but no Transfer or collection will be deemed an acceptance of the Transferee as Tenant or
release Tenant from its obligations. Consent to a Transfer shall not relieve Tenant from
obtaining Landlord’s consent to any other Transfer. Notwithstanding Landlord’s consent to a
Transfer, Tenant shall continue to be primarily liable for its obligations. If Tenant collects any
rent or other amounts from a Transferee in excess of the Rent for any monthly period, Tenant shall
pay Landlord the excess monthly, as and when received.




          14.3 Tenant shall give Landlord written notice at least twenty-one (21) days prior to the
effective date of the proposed Transfer; provided, however, that if Tenant is prohibited by (i)
Applicable Legal Requirements or (ii) contract with respect to a proposed Permitted Transfer as
defined in Section 14.5 below, from disclosing a proposed Permitted Transfer and/or a proposed
Permitted Transferee prior to the effective date of a Permitted Transfer, Tenant shall provide
written notice of such Permitted Transfer to Landlord within thirty (30) days following the
effective date of such Permitted Transfer (“Tenant’s First Notice”). Tenant’s First Notice shall
describe the portion of the Premises to be transferred and the terms and conditions of such
transfer. Landlord shall, by written notice to Tenant within twenty-one (21) days after Tenant’s
First Notice, either (i) consent to the Transfer by the execution of a consent agreement in a form
mutually acceptable to Landlord and Tenant, or (ii) in accordance with this Section 14, reasonably
refuse to consent to the Transfer by written notice to Tenant. If Landlord fails to provide such
notice or consent agreement within said twenty-one (21) day period, Tenant shall send Landlord a
second notice containing the same information as was provided with Tenant’s First Notice. If
Landlord fails to provide notice or consent agreement within ten (10) days following the second
notice, it shall be deemed that Landlord has consented to the Transfer.




          14.4 Except in connection with a Permitted Transfer as set forth in Section 14.5 below (i) all
documents utilized by Tenant to evidence a Transfer are subject to approval by Landlord, and (ii)
Tenant shall pay Landlord’s actual out-of-pocket expenses, including reasonable attorneys’ fees, of
determining whether to consent and in reviewing and approving the documents. Tenant shall provide
Landlord with such information as Landlord reasonably requests regarding a proposed
Transferee, including financial information.




 









 





          14.5 Notwithstanding anything to the contrary contained in this Lease, Tenant may, without
Landlord’s prior written consent, but upon notice to Landlord as set forth above, sublet all or any
portion of the Premises or assign Tenant’s interest in this Lease to: (i) a subsidiary, affiliate,
parent or other entity to Tenant which controls, is controlled by, or is under common control with,
Tenant; (ii) a successor entity to Tenant resulting from merger, consolidation, non bankruptcy
reorganization, or government action; or (iii) a purchaser of all or any significant portion of
Tenant’s stock or assets (any of the foregoing, a “Permitted Transfer”).




     15. DAMAGE TO PROPERTY. Tenant agrees Landlord is not liable for any injury or
damage, either proximate or remote, occurring through or caused by fire, water, steam, or any
repairs, alterations, injury, accident, or any other cause to the Premises, to any furniture,
fixtures, Tenant improvements, or other personal property of Tenant kept or stored in the Premises,
or in other parts of the Building Complex, unless caused by the gross negligence or willful
misconduct of Landlord. The keeping or storing of all property of Tenant in the Premises and
Building Complex is at the sole risk of Tenant.



     16. TENANT’S INSURANCE AND INDEMNITY TO LANDLORD.



          16.1 Except with respect to claims waived by Landlord pursuant to Section 18.6 below, Tenant
agrees to indemnify, defend, and hold Landlord and Building Manager harmless from all liability,
costs, or expenses, including attorneys’ fees, on account of damage to the person or property of
any third party, to the extent caused by the gross negligence or breach of this Lease by the Tenant
or Tenant’s Agents, but except to the extent caused by the gross negligence or willful misconduct
of Landlord or Landlord’s contractors, licensees, agents, servants, or employees.




          16.2 Tenant shall maintain throughout the Term the following insurance:




               (1) Workmen’s compensation insurance for protection of Tenant, its owners, partners and
employees as required by law, and employer’s liability insurance with the following limits:



               (a) Each accident: One Hundred Thousand Dollars ($100,000.00).



               (b) Each occupational disease: One Hundred Thousand Dollars ($100,000.00).



               (c) Occupational disease aggregate: Five Hundred Thousand Dollars ($500,000.00).


The workmen’s compensation and employer’s liability insurance policies of Tenant shall contain a
waiver of subrogation as to Landlord. The limits of liability for this coverage shall be as
required by applicable statute.




               (2) Broad form general liability insurance covering bodily injury, including death, personal
injury, property damage and contractual liability. The broad form general liability insurance
policy shall provide coverage on an occurrence basis and shall include explosion, collapse,
underground hazard and products/completed operations coverage. Minimum limits of liability provided
by this coverage shall be as follows:



               (a) General aggregate: Two Million Dollars ($2,000,000.00).



               (b) Products/completed operations aggregate: Two Million Dollars
($2,000,000.00).



               (c) Personal and advertising injury: One Million Dollars ($1,000,000.00).



               (d) Each occurrence: One Million Dollars ($1,000,000.00).



               (e) Umbrella or excess policy limit: Four Million Dollars ($4,000,000.00).



 









 





               (3) Automobile liability insurance covering the use, operation and maintenance of any
automobiles, trucks, trailers or other vehicles owned, hired or non-owned by Tenant providing
bodily injury, including death, and property damage coverage. Minimum limits of liability provided
by this coverage shall be a combined single limit of One Million Dollars ($1,000,000.00).



          With respect to the foregoing insurance policies to be provided by Tenant, Tenant agrees as
follows:




               (1) Tenant shall notify Landlord of any claims equal to or greater than ten percent (10%) of
the insurance policy limits (paid or reserved) which are applied against the aggregate of any of
the required insurance policies. The full aggregate general liability policy limits required above
shall be available with respect to Tenant’s obligations hereunder and Tenant shall obtain a project
specific/location specific aggregate limit endorsement confirming such coverage.



               (2) All insurance required hereunder shall be maintained in full force and effect in a company
or companies satisfactory to Landlord which shall have, at a minimum, an investment grade rating by
Standard and Poor’s or Moody’s rating services, at Tenant’s expense, and until the expiration of
the Term hereof.



               (3) All insurance shall be subject to the requirements that Landlord must receive prior
written notice thirty (30) days before cancellation of or failure to renew any such policy. In the
event of the threatened cancellation for nonpayment of premiums, Landlord may pay the same on
behalf of Tenant and add such payments to amounts then and subsequently owing to Landlord
hereunder.



               (4) Prior to occupancy of the Premises, and ten (10) days prior to the expiration of the then
current policy, Tenant shall deliver certificates in form reasonably acceptable to Landlord
evidencing that the insurance required under this Lease is in effect.



               (5) Failure to furnish the required insurance certificates in accordance with Section 16.2(4)
above shall constitute a default by Tenant hereunder.



               (6) Landlord and any other party required to be indemnified by Tenant under this Lease shall
be named as an additional insured on Tenant’s policies of automobile liability, broad form general
liability and any excess liability insurance required by this Lease.



               (7) All insurance provided by Tenant hereunder shall be primary to any insurance policies held
by Landlord.



     17. SURRENDER AND NOTICE.



          17.1 Upon the expiration or other termination of this Lease, Tenant shall immediately quit and
surrender to Landlord the Premises broom clean, in good order and condition, ordinary wear and tear
and loss by fire or other casualty or condemnation excepted, and Tenant shall remove all of its
movable furniture and other personal property, at Landlord’s option, and related equipment in the
Building installed for Tenant, and such Alterations, as Landlord requires, all subject to the
provisions of Section 12 above.




     18. INSURANCE, CASUALTY, AND RESTORATION OF PREMISES.



          18.1 Landlord shall maintain property insurance for the Building Complex, the core and shell
of the Building in such amounts, from such companies, and on such terms and conditions, including
insurance for loss of Rent as Landlord deems appropriate, from time to time.




 









 








          18.2 Tenant shall maintain throughout the Term insurance coverage at least as broad as ISO
Special Form Coverage against risks of direct physical loss or damage (commonly known as “all
risk”) for the full replacement cost of Tenant’s property and betterments in the Premises,
including tenant finish in excess of the initial Tenant finish.




          18.3 If the Building is damaged by fire or other casualty which renders the Premises wholly
untenantable or the damage is so extensive that an architect selected by Landlord certifies in
writing to Landlord and Tenant within sixty (60) days of said casualty that the Premises cannot,
with the exercise of reasonable diligence, be made fit for occupancy within one hundred eighty
(180) days from the happening thereof, then, at the option of Tenant exercised in writing within
thirty (30) days of such determination, this Lease shall terminate as of the occurrence of such
damage. In the event of termination, Tenant shall pay Rent duly apportioned up to the time of
such casualty and forthwith surrender the Premises and all interest in this Lease. If Tenant fails
to do so, Landlord may reenter and take possession of the Premises and remove Tenant. If, however,
the damage is such that the architect certifies that the Premises can be made tenantable within
such one hundred eighty (180) day period or Tenant does not elect to terminate the Lease despite
the extent of damage, then the provisions below apply.




          18.4 If the Premises are damaged by fire or other casualty that does not render them wholly
untenantable or require a repair period in excess of one hundred eighty (180) days, Landlord shall
with reasonable promptness except as hereafter provided repair the Premises to the extent of the
initial Landlord’s Work and Tenant’s Finish Work. If the Building is damaged by fire or other
casualty at any time which is during the twelve (12) months prior to the Expiration Date and Tenant
has not exercised its option to extend the Term of this Lease pursuant to Section 40 within fifteen
(15) business days following receipt of notice from Landlord’s architect that the Premises are
wholly untenantable or that the damages are so extensive that they will require a repair period in
excess of one hundred eighty (180) days, then, within fifteen (15) business days after the
expiration of such 15-business day period, either party may terminate this Lease as a result of the
occurrence of such damage by giving written notice to the other; provided, however, in the event
that such casualty does not render the Premises wholly untenantable, Landlord shall neither have
the right to terminate this Lease nor the obligation to restore the Premises, and Tenant, at its
option, shall be entitled to continue to use and occupy the Premises for the remainder of the term
notwithstanding such casualty or damage, and Rent shall abate following the occurrence of such
casualty or damage in the same proportion that the part of the Premises rendered untenantable or
unusable for the uses permitted hereunder, bears to the whole Premises. In the event of
termination by either party pursuant to this Section 18.4, Tenant shall pay Rent duly apportioned
up to the date of such casualty and forthwith surrender the Premises and all interest therein. If
Tenant fails to do so, Landlord may reenter and take possession of the Premises and remove Tenant.




          18.5 Landlord and Tenant waive all rights of recovery against the other and its respective
officers, partners, members, managers, agents, representatives, and employees for loss or damage to
its real and personal property kept in the Building Complex which is required to be insured by such
party hereunder. Tenant also waives all such rights of recovery against Building Manager. Each
party shall, upon obtaining the property damage insurance required by this Lease, notify the
insurance carrier that the foregoing waiver is contained in this Lease and shall use reasonable
efforts to obtain an appropriate waiver of subrogation provision in the policies.




          18.6 Rent shall abate following any event of casualty or damage described in this Section 18,
in the same proportion that the part of the Premises rendered untenantable or unusable for the uses
permitted hereunder, bears to the whole Premises.




          18.7 If (a) the Premises are materially damaged by fire or other casualty during the last
eighteen (18) months of the Term and Tenant has not exercised its Term extension rights under this
Lease, or (b) the Premises are materially damaged by fire or other casualty and not restored
(including restoration of the Landlord’s Work and Tenant’s Finish Work) within one hundred eighty
(180) days after the date of such fire or other casualty or such additional period of time for
delays beyond the reasonable control of Landlord but in no event beyond two hundred forty (240)
days, then Tenant shall have the right, exercisable by notice delivered within thirty (30) days
after the date of such fire or other casualty (with respect to clause (a) above) or at any time
after expiration of such one hundred eighty (180) day or two hundred




 









 





forty (240) day period, as applicable, while failure to restore the Premises and the Landlord’s
Work and Tenant’s Finish Work persists (with respect to clause (b) above), to terminate this Lease,
effective as of the date of delivery of such notice.




          18.8 The Landlord shall indemnify and save harmless Tenant, and the directors, officers,
agents, and employees of Tenant, against and from all claims, expenses, or liabilities of whatever
nature (a) arising directly or indirectly from any default or breach by Landlord or Landlord’s
contractors, licensees, agents, servants, or employees under any of the terms or covenants of this
Lease or failure of Landlord or such persons to comply with any rule, order, regulation, or lawful
direction now or hereafter in force of any public authority, in each case to the extent the same
related, directly or indirectly to the management operation or repair of the Building and/or the
use of the Common Areas; or (b) arising directly or indirectly from any accident, injury, or
damage, however caused, to any person or property, on the Common Area as a result of the gross
negligence or willful misconduct of Landlord, or Landlord’s contractors, agents, servants or
employees; or (c) arising directly or indirectly from any accident, injury, or damage to any person
or property occurring outside the Premises but within the Building or on the Building Complex, to
the extent such accident, injury, or damage results from any act or omission of gross negligence or
willful misconduct on the part of Landlord, or Landlord’s contractors, agents, servants, employees,
or anyone claiming by or through Landlord; provided, however, that in no event shall Landlord be
obligated under this Section 18 to indemnify or save harmless Tenant, or the directors, officers,
agents, employees of Tenant, to the extent such claim, expense, or liability results from any
omission, fault, negligence, or other misconduct of Tenant or the contractors, licensees, agents,
servants, employees or invitees of Tenant. This indemnity and hold harmless agreement shall
include, without limitation, indemnity against all expenses, attorney’s fees and liabilities
incurred in connection with any such claim or proceeding brought thereon and the defense thereof
with counsel reasonably acceptable to Tenant. At the request of Tenant, Landlord shall defend any
such claim or proceeding directly on behalf and for the benefit of Tenant.




     19. CONDEMNATION.



          19.1 In the event any portion of the Building Complex, which renders the Premises
untenantable, is taken by right of eminent domain, or by condemnation (which includes a conveyance
in lieu of a taking), this Lease, at the option of Tenant exercised by notice within thirty (30)
days after the taking, shall terminate and Rent shall be apportioned as of the date of the taking.
Tenant shall forthwith surrender the Premises and all interest in this Lease, and, if Tenant fails
to do so, Landlord may reenter and take possession of the Premises. If this Lease is not
terminated by Tenant as described above, Landlord shall promptly repair the Premises as nearly as
possible to their condition immediately prior to the taking. If, to the extent required under the
preceding sentence, the Premises are not rebuilt and fully restored (including restoration of the
Landlord’s Work and Tenant’s Finish Work) within one hundred eighty (180) days after the date of
such taking or such additional period of time for delays beyond the reasonable control of Landlord
but in no event beyond two hundred forty (240) days, Tenant shall thereafter have the right to
terminate this Lease upon written notice to Landlord at any time after expiration of such one
hundred eighty (180) day or two hundred forty (240) day period, as applicable. Landlord shall
receive the entire award or consideration for the taking; provided, however, that Tenant shall be
entitled to pursue any damages which are available to Tenant in a separate action or separate
award. In the event that this Lease is not terminated as provided in this Section 19, Rent for any
portion of the Premises taken or condemned shall be equitably abated during the unexpired Term of
this Lease effective when the physical taking of the portion of the Premises occurs.




          19.2 In the event of a taking of the Premises or any part thereof for temporary use, (a) this
Lease shall be and remain unaffected thereby except that Rent shall proportionately abate, and (b)
Landlord shall be entitled to receive for itself such portion or portions of any award made for
such use with respect to the period of the taking. For purpose of this paragraph, a temporary
taking shall be defined as a taking for a period of one hundred eighty (180) days or less.




     20. DEFAULT BY TENANT.



          20.1 Each of the following events is an “Event of Default”:




               (1) Any failure by Tenant to pay Rent on the due date unless such failure is cured within ten
(10) days after written notice by Landlord to Tenant that such payment is past due;



 









 





               (2) This Lease or Tenant’s interest is transferred whether voluntarily or by operation of law
except as permitted in Section 14;



               (3) This Lease or any part of the Premises is taken by process of law and is not released
within thirty (30) days after a levy;



               (4) Commencement by Tenant of a proceeding under any provision of federal or state law
relating to insolvency, bankruptcy, or reorganization (“Bankruptcy Proceeding”);



               (5) Commencement of a Bankruptcy Proceeding against Tenant, unless dismissed within ninety
(90) days after commencement; or



               (6) Tenant fails to perform any of its other obligations and non-performance continues for
thirty (30) days after written notice by Landlord or, if such performance cannot be reasonably had
within such thirty (30) day period, Tenant does not in good faith commence performance within such
thirty (30) day period and diligently proceed to completion; provided, however, Tenant’s right to
cure shall not exceed the period provided by Applicable Law.



          20.2 Remedies of Landlord. If an Event of Default occurs and is not thereafter cured
by Tenant prior to the Landlord’s exercise of the remedies set forth in this Section 20.2, Landlord
may thereafter, either:




               (1) (a) Without further notice except as required by Applicable Laws, reenter and repossess
the Premises or any part and expel Tenant and those claiming through or under Tenant and remove the
effects of both without being deemed guilty of any manner of trespass and without prejudice to any
remedies for arrears of Rent or preceding breach of this Lease. Should Landlord reenter or take
possession pursuant to legal proceedings or any notice provided for by Applicable Law, Landlord
may, from time to time, without terminating this Lease, relet the Premises or any part, either
alone or in conjunction with other portions of the Building Complex, in Landlord’s or Tenant’s name
but for the account of Tenant, for such periods (which may be greater or less than the period which
would otherwise have constituted the balance of the Term) and on such conditions and upon such
other terms (which may include concessions of free rent and alteration and repair of the Premises)
as Landlord, in its sole discretion, determines and Landlord may collect the rents therefor.
Landlord is not in any way responsible or liable for failure to relet the Premises, or any part
thereof, or for any failure to collect any rent due upon such reletting; provided, however that
Landlord agrees to use reasonable efforts to relet the Premises and to collect rent due upon such
reletting. No such reentry or repossession or notice from Landlord shall be construed as an
election by Landlord to terminate this Lease unless specific notice of such intention is given
Tenant. Landlord reserves the right following any reentry and/or reletting to exercise its right
to terminate this Lease by giving Tenant notice, in which event this Lease will terminate as
specified in the notice.



                    (b) If Landlord takes possession of the Premises without terminating this Lease, Tenant shall
pay Landlord (i) the Rent which would be payable if repossession had not occurred, less (ii) the
net proceeds, if any, of any reletting of the Premises after deducting all of Landlord’s expenses
incurred in connection with such reletting, including all repossession costs, brokerage
commissions, attorneys’ fees, expenses of employees, and alteration and repair costs (collectively
“Reletting Expenses”). If, in connection with any reletting, the new lease term extends beyond the
Term or the premises covered thereby include other premises not part of the Premises, a fair
apportionment of the rent received from such reletting and the Reletting Expenses, will be made in
determining the net proceeds received from the reletting. In determining such net proceeds, rent
concessions will also be apportioned over the term of the new lease. Tenant shall pay such amounts
to Landlord monthly on the days on which the Rent would have been payable if possession had not
been retaken, and Landlord is entitled to receive the same from Tenant on each such day; or



               (2) Give Tenant notice of termination of this Lease on the date specified and, on such date,
Tenant’s right
to possession of the Premises shall cease and the Lease will terminate except as to Tenant’s
liability as hereafter provided as if the expiration of the term fixed in such notice were the end
of the Term. If this Lease terminates pursuant to this Section, Tenant remains liable to Landlord
for damages in an amount equal to the Rent which would have been owing by Tenant for the balance of
the Term had this Lease not terminated, less the net proceeds, if any, of reletting of the Premises
by Landlord



 









 







subsequent to termination after deducting Reletting Expenses. Landlord may collect
such damages from Tenant monthly on the days on which the Rent would have been payable if this
Lease had not terminated and Landlord shall be entitled to receive the same from Tenant on each
such day. Alternatively, if this Lease is terminated, Landlord at its option may recover forthwith
against Tenant as damages for loss of the bargain and not as a penalty an amount equal to the worth
at the time of termination of the excess, if any, of the Rent reserved in this Lease for the
balance of the Term over the then Reasonable Rental Value of the Premises for the same period plus
all Reletting Expenses. “Reasonable Rental Value” is the amount of rent Landlord can obtain for the
remaining balance of the Term.



          20.3 Cumulative Remedies. Suits to recover Rent and damages may be brought by
Landlord, from time to time, and nothing herein requires Landlord to await the date the Term would
expire had there been no Event of Default or termination, as the case may be. Each right and
remedy provided for in this Lease is cumulative and non-exclusive and in addition to every other
right or remedy now or hereafter existing at law or equity, including suits for injunctive relief
and specific performance. The exercise or beginning of the exercise by Landlord of one (1) or more
rights or remedies shall not preclude the simultaneous or later exercise by Landlord of other
rights or remedies. All costs incurred by Landlord to collect any Rent and damages or to enforce
this Lease are also recoverable from Tenant. If any suit is brought because of an alleged breach
of this Lease, the prevailing party is also entitled to recover from the other party all reasonable
attorneys’ fees and costs incurred in connection therewith.




          20.4 No Waiver. No failure by Landlord to insist upon strict performance of any
provision or to exercise any right or remedy upon a breach hereof, and no acceptance of full or
partial Rent during the continuance of any breach constitutes a waiver of any such breach or such
provision, except by written instrument executed by Landlord. No failure by Tenant to insist upon
strict performance of any provision or to exercise any right or remedy upon a breach hereof, and no
acceptance of full or partial payment from Landlord during the continuance of any breach
constitutes a waiver of any such breach or such provision, except by written instrument executed by
Tenant. No waiver shall affect or alter this Lease but each provision hereof continues in effect
with respect to any other then existing or subsequent breach hereof.




          20.5 Bankruptcy. Nothing contained in this Lease limits Landlord’s right to obtain as
liquidated damages in any bankruptcy or similar proceeding the maximum amount allowed by law at the
time such damages are to be proven, whether such amount is greater, equal to, or less than the
amounts recoverable, either as damages or Rent, referred to in any of the preceding provisions of
this Section. Notwithstanding anything in this Section to the contrary, any proceeding described
in Section 20.1(4),and (5), is an Event of Default only when such proceeding is brought by or
against the then holder of the leasehold estate under this Lease.




          20.6 Late Payment Charge. Any Rent not paid within ten (10) days after the due date
shall thereafter bear interest at three (3) percentage points above the Prime Rate or the highest
rate permitted by law, whichever is lower, until paid. Further, if such Rent is not paid within
ten (10) business days after notice that the same is past due, Tenant agrees Landlord will incur
additional administrative expenses, the amount of which will be difficult to determine; Tenant
therefore shall also pay Landlord a late charge for each late payment of three percent (3%) of such
payment. Any amounts paid by Landlord to cure an Event of Default of Tenant which Landlord has the
right but not the obligation to do, shall, if not repaid by Tenant within ten (10) days of demand
by Landlord, thereafter bear interest at five (5) percentage points above the Prime Rate until paid
(the “Default Rate”). “Prime Rate” means the base rate on Corporate Loans posted by at least
seventy-five percent (75%) of the Nation’s thirty (30) largest banks (as shown in the Wall
Street Journal) on the date closest to the date interest commences.




          20.7 Waiver of Jury Trial. Tenant and Landlord waive any right to a trial by jury in
suits arising out of or concerning the provisions of this Lease.




          20.8 Waiver of Consequential Damages. In no event shall Tenant be responsible for
punitive or consequential damages or lost profit incurred by Landlord as a result of any act (or
failure to act) by Tenant.




     21. DEFAULT BY LANDLORD. Landlord shall be deemed to be in default of this Lease if
Landlord fails to make any payments to Tenant required under this Lease and such failure continues
for ten (10) days after written notice from Tenant to



 









 







Landlord, or if Landlord shall be in default
in the prompt and full performance of any other of its promises, covenants or agreements contained
in this Lease and such default in performance continues for more than thirty (30) days after
written notice thereof from Tenant to Landlord specifying the particulars of such default or breach
of performance; provided, however, that if the default complained of, other than for the payment of
monies, is of such a nature that the same cannot be rectified or cured within such thirty (30) day
period, then such default shall be deemed to be rectified or cured if Landlord, within such thirty
(30) day period, shall have commenced such cure and shall continue thereafter with due diligence to
cause such cure to be completed. Upon any default of this Lease by Landlord, Tenant shall be
entitled to pursue any and all remedies available to Tenant at law or in equity. Notwithstanding
the foregoing, Tenant’s notice under this Section 21 shall be ineffective unless a copy is
simultaneously also delivered in the manner required in this Lease to any Mortgagee, provided that
prior to such notice Tenant has been notified (in accordance with Section 29 herein), of the
address of a Mortgagee. If Landlord fails to cure such default within the time provided, then
Mortgagee shall have an additional thirty (30) days following a second notice from Tenant or, if
such default cannot be cured within that time, such additional time as may be reasonably necessary,
provided within such thirty (30) days Mortgagee commences and diligently pursues a cure (including
commencement of foreclosure proceedings if necessary to effect such cure). Tenant’s sole remedy
will be equitable relief or actual damages but in no event is Landlord or any Mortgagee responsible
for consequential damages or lost profit incurred by Tenant as a result of any default by Landlord.



     22. HAZARDOUS MATERIAL.



          22.1 During the term of this Lease, Tenant shall comply with all Environmental Laws and
Environmental Permits (each as defined in Section 22.4 hereof) applicable to the operation or use
of the Premises, shall cause all other persons occupying or using the Premises to comply with all
such Environmental Laws and Environmental Permits, shall immediately pay all costs and expenses
incurred by reason of such compliance, and shall obtain and renew all Environmental Permits
required for operation or use of the Premises. Tenant shall not generate, use, treat, store,
handle, release or dispose of, or permit the generation, use, treatment, storage, handling, release
or disposal of Hazardous Materials (as defined in Section 22.4 hereof) on the Premises or transport
or permit the transportation of Hazardous Materials to or from the Premises except for limited
quantities used or stored at the Premises and required in connection with the routine operation and
maintenance of Tenant’s business in the Premises, and then only in compliance with all applicable
Environmental Laws and Environmental Permits.




          22.2 Tenant will immediately advise Landlord in writing of any of the following: (1) any
pending or threatened Environmental Claim (as defined in Section 22.4 hereof) against Tenant
relating to the Premises; (2) any condition or occurrence on the Premises of which Tenant has
knowledge that (i) results in noncompliance by Tenant with any applicable Environmental Law, or
(ii) could reasonably be anticipated to form the basis of an Environmental Claim against Tenant
and/or Landlord or the Premises; and (3) the actual or anticipated taking of any removal or
remedial action in response to the actual or alleged presence of any Hazardous Material on the
Premises. All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and Tenant’s response thereto.
In addition, Tenant will provide Landlord with copies of all communications regarding the Premises
with any government or governmental agency relating to Environmental Laws, all such communications
with any person relating to Environmental Claims, and such detailed reports of any such
Environmental Claim as may reasonably be requested by Landlord.




          22.3 Tenant agrees to defend, indemnify and hold harmless Landlord and its managers, members,
officers, directors, employees, attorneys and agents (collectively, the “Indemnitees”) from and
against all obligations (including, removal
and remedial actions), losses, claims, suits, judgments, liabilities, penalties (including, by way
of illustration and not by way of limitation, civil fines), actual damages, costs and expenses
(including attorneys’ and consultants’ fees and expenses) of any kind or nature whatsoever that may
at any time be incurred by, imposed on or asserted against such Indemnitees directly or indirectly
based on, or arising or resulting from (1) the actual presence of Hazardous Materials on the
Premises which is caused or permitted by Tenant and/or (2) any Environmental Claim relating in any
way to Tenant’s operation or use of the Premises. The provisions of this Section 22.3 shall
survive the expiration or sooner termination of this Lease. Notwithstanding the above, Tenant
shall not be liable for Environmental Claims caused by materials used by Landlord in the original
construction of the Premises.




 









 








          22.4 (1) “Hazardous Materials” means (i) petroleum or petroleum products, natural or
synthetic gas, asbestos in any form, urea formaldehyde foam insulation, and radon gas; (ii) any
substances defined as or included in the definition of “hazardous substances,” “hazardous wastes,”
“hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic
substances,” “toxic pollutants,” “contaminants” or “pollutants,” or words of similar import, under
any applicable Environmental Law; and (iii) any other substance exposure which is regulated by any
governmental authority.




               (2) “Environmental Law” means any federal, state or local statute, law, rule,
regulation, ordinance, code, policy or rule of common law now or hereafter in effect and in each
case as amended, and any judicial or administrative interpretation thereof, including any judicial
or administrative order, consent decree or judgment, relating to the environment, health, safety or
Hazardous Materials.



               (3) “Environmental Claims” means any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of non-compliance or violation,
investigations, proceedings, consent orders or consent agreements relating in any way to any
Environmental Law or any Environmental Permit, including without limitation (i) any and all
Environmental Claims by governmental or regulatory authorities for enforcement, cleanup, removal
response, remedial or other actions or damages pursuant to any applicable Environmental Law and/or
(ii) any and all Environmental Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to health, safety or the environment.



               (4) “Environmental Permits” means all permits, approvals, identification numbers,
licenses and other authorizations required under any applicable Environmental Law.



          22.5 Landlord hereby agrees to defend, indemnify and hold Tenant harmless from and against any
and all loss, cost, damage, claim or expense (including legal fees) incurred in connection with or
arising out of or relating in any way to the presence of Hazardous Materials as of the Commencement
Date in or on the Building, Building Complex or Real Property (except to the extent caused by
Tenant).




     23. SUBORDINATION AND ATTORNMENT.



          23.1 Conditioned upon Tenant’s receipt of an executed SNDA from each Mortgagee, this Lease at
Landlord’s option will be subordinate to any mortgage, deed of trust and related documents now or
hereafter placed upon the Building Complex (including all advances made thereunder), and to all
amendments, renewals, replacements, or restatements thereof (collectively, “Mortgage”).




          23.2 If any Mortgagee elects to have this Lease superior to the lien of its Mortgage and gives
notice to Tenant, this Lease will be deemed prior to such Mortgage whether this Lease is dated
prior or subsequent to the date of such Mortgage or the date of recording thereof.




          23.3 In confirmation of subordination or superior position, as the case may be, Tenant will
execute such
documents (including any SNDA) as may be required by Mortgagee within ten (10) days after written
demand, with any modifications which may be mutually acceptable to Mortgagee and Tenant. Tenant
agrees that no documentation other than this Lease is required to evidence such subordination;
provided, however that Landlord shall provide to Tenant, on or before the Commencement Date, a
Subordination, Non-Disturbance and Attornment Agreement (“SNDA”) from any Mortgagee then
encumbering the Building, in such Mortgagee’s standard SNDA form with any modifications mutually
acceptable to Mortgagee and Tenant. Landlord shall provide to Tenant an SNDA from any Mortgagee
hereinafter encumbering the Building, in such future Mortgagee’s standard form, which shall include
provisions to the effect that (i) Tenant may exercise any termination rights expressly granted to
Tenant in this Lease without further consent by Landlord’s Mortgagee, and (ii) in the event of
foreclosure under the Mortgage, this Lease shall continue and Tenant’s rights under this Lease will
not be disturbed even though foreclosure action has taken place.



 









 







          23.4 Conditioned upon Tenant’s receipt of an executed SNDA from each Mortgagee, Tenant agrees
to attorn to all successor owners of the Building, whether such ownership is acquired by sale,
foreclosure of a Mortgage, or otherwise, provided that such successor owner recognizes Tenant’s
rights hereunder pursuant to such SNDA.




     24. REMOVAL OF TENANT’S PROPERTY. All movable personal property of Tenant not removed
from the Premises upon vacation, abandonment, or termination of this Lease shall be conclusively
deemed abandoned and may be sold, or otherwise disposed of by Landlord without notice to Tenant and
without obligation to account; Tenant shall pay Landlord’s actual out-of-pocket expenses paid in
connection with such disposition.



     25. HOLDING OVER: TENANCY MONTH-TO-MONTH. If, after the expiration or termination of
this Lease, Tenant remains in possession of the Premises and continues to pay rent without a
written agreement as to such holding over, even though Landlord accepts such rent, such possession
is a tenancy from month-to-month, subject to all provisions hereof but at a monthly rent equivalent
to one hundred fifty percent (150%) of the monthly Rent paid by Tenant immediately prior to such
expiration or termination, pro rated on a per diem basis for any partial month. Rent shall
continue to be payable in advance on the first day of each calendar month. Such tenancy may be
terminated by either party upon ten (10) days’ written notice prior to the end of any monthly
period. Nothing contained herein obligates Landlord to accept rent tendered after the expiration of
the Term or relieves Tenant of its liability under Section 17.



     26. PAYMENTS AFTER TERMINATION. No payments by Tenant after expiration or termination
of this Lease or after any notice (other than a demand for payment of money) by Landlord to Tenant
reinstates, continues, extends the Term, or affects any notice given to Tenant prior to such
payments. After notice, commencement of a suit, or final judgment granting Landlord possession of
the Premises, Landlord may collect any amounts due or otherwise exercise Landlord’s remedies
without waiving any notice or affecting any suit or judgment.



     27. STATEMENT OF PERFORMANCE.



          27.1 Tenant agrees at any time upon not less than ten (10) days’ written notice to execute and
deliver to Landlord a written statement certifying that this Lease is unmodified and in full force
and effect (or, if there have been modifications, that the same is in full force and effect as
modified and stating the modifications); that there have been no defaults by Tenant, or to Tenant’s
actual knowledge, Landlord (or, if there have been defaults, setting forth the nature thereof); the
date to which Rent has been paid in advance and such other information as Landlord reasonably
requests. Such statement may be relied upon by a prospective purchaser of Landlord’s interest or
Mortgagee.




          27.2 Landlord agrees at any time upon not less than ten (10) days’ written notice to execute
and deliver to Tenant a written statement certifying that this Lease is unmodified and in full
force and effect (or, if there have been modifications, that the same is in full force and effect
as modified and stating the modifications); that there have been no defaults by Landlord, or to
Landlord’s actual knowledge, Tenant (or, if there have been defaults, setting forth the nature
thereof); the date to which Rent has been paid in advance and such other information as Tenant
reasonably requests. Such statement may be relied upon by third parties.




     28. MISCELLANEOUS.



          28.1 Transfer by Landlord. The term “Landlord” means so far as obligations of
Landlord are concerned, only the owner of the Real Property upon which the Building is or may
thereafter be constructed at the time in question and, if any transfer of the title occurs,
Landlord herein named (and in the case of any subsequent transfers, the then grantor) is
automatically released from and after the date of such transfer of all liability as respects
performance of any obligations of Landlord thereafter to be performed. Any funds in Landlord’s
possession at the time of transfer in which Tenant has an interest will be turned over to the
grantee and any amount then due Tenant under this Lease will be paid to Tenant.




          28.2 No Merger. The termination or mutual cancellation of this Lease will not work a
merger, and such





 











 




termination or cancellation will at the option of Landlord either terminate all subleases or
operate as an automatic assignment to Landlord of such subleases.




          28.3 Independent Covenants. This Lease is to be construed as though the covenants
between Landlord and Tenant are independent and not dependent and Tenant is not entitled to any
setoff of the Rent against Landlord if Landlord fails to perform its obligations; provided,
however, the foregoing does not impair Tenant’s right to commence a separate suit against Landlord
for any default by Landlord so long as Tenant complies with Section 21.




          28.4 Validity of Provisions. If any provision is invalid under present or future
laws, then it is agreed that the remainder of this Lease is not affected and that in lieu of each
provision that is invalid, there will be added as part of this Lease a provision as similar to such
invalid provision as may be possible and is valid and enforceable.




          28.5 Captions. The caption of each Section is added for convenience only and has no
effect in the construction of any provision of this Lease.




          28.6 Construction. The parties waive any rule of construction that ambiguities are to
be resolved against the drafting party. Any words following the words “include,” “including,”
“such as,” “for example,” or similar words or phrases shall be illustrative only and are not
intended to be exclusive, whether or not language of non-limitation is used.




          28.7 Applicability. Except as otherwise provided, the provisions of this Lease are
applicable to and binding upon Landlord’s and Tenant’s respective heirs, successors and assigns.
Such provisions are also considered to be covenants running with the land to the fullest extent
permitted by law.




          28.8 Authority. Tenant and the party executing this Lease on behalf of Tenant
represent to Landlord that such party is authorized to do so by requisite action of Tenant and
agree, upon request, to deliver Landlord a resolution, similar document, or opinion of counsel to
that effect.




          28.9 Severability. If there is more than one (1) party which is the Tenant, the
obligations imposed upon Tenant are joint and several.




          28.10 Acceptance of Keys, Rent or Surrender. No act of Landlord or its
representatives during the Term, including any agreement to accept a surrender of the Premises or
amend this Lease, is binding on Landlord unless such act is by a partner, member, manager or
officer of Landlord, as the case may be, or other party designated in writing by Landlord as
authorized to act. The delivery of keys to Landlord or its representatives will not operate as a
termination of this Lease or a surrender of the Premises. No payment by Tenant of a lesser amount
than the entire Rent owing is other than on account of such Rent nor is any endorsement or
statement on any check or letter accompanying payment an accord and satisfaction. Landlord may
accept payment without prejudice to Landlord’s right to recover the balance or pursue any other
remedy available to Landlord.




          28.11 Diminution of View. Tenant agrees that no diminution of light, air, or view
from the Building entitles Tenant to any reduction of Rent under this Lease, results in any
liability of Landlord, or in any way affects Tenant’s obligations.




          28.12 Limitation of Liability. Notwithstanding anything to the contrary contained in
this Lease, Landlord’s liability is limited to Landlord’s interest in the Real Property, together
with any improvements now or hereafter located thereon.




          28.13 Non-Reliance. Tenant confirms it has not relied on any statements,
representations, or warranties by Landlord or its representatives except as set forth herein.




          28.14 Written Modification. No amendment or modification of this Lease is valid or
binding unless in writing and
executed by the parties.




 









 








          28.15 Lender’s Requirements. Tenant will make such modifications to this Lease as may
hereafter be required to conform to any lender’s requirements, so long as such modifications do not
increase Tenant’s obligations or materially adversely alter its rights hereunder.




          28.16 Effectiveness. Submission of this instrument for examination or signature by
Tenant does not constitute a reservation of or option to lease and it is not effective unless and
until execution and delivery by both Landlord and Tenant.




          28.17 Survival. This Lease, notwithstanding expiration or termination, continues in
effect as to any provisions requiring observance or performance subsequent to termination or
expiration.




          28.18 Time of Essence. Time is of the essence herein.




          28.19 Rules and Regulations. Tenant and Tenant’s Agents shall at all times observe
and abide by the Rules and Regulations attached hereto as Exhibit J as amended from time to
time. Failure to keep and observe the Rules and Regulations shall constitute a breach of the terms
of this Lease in the same manner as if the same were contained herein as covenants.




          28.20 Recording. Tenant will not record this Lease. Recording of the Lease by or on
behalf of Tenant is an Event of Default. Notwithstanding the foregoing, both parties shall execute
and deliver a notice of this Lease in form appropriate for recording or registration, and both
parties agree to cooperate in the preparation, execution, acknowledgment and recordation of such
document in reasonable form. If such a notice of lease is recorded, then upon expiration or
termination of this Lease, Tenant agrees promptly to execute, acknowledge and deliver to Landlord,
upon written request by Landlord, a Termination of Memorandum of Lease in such form as Landlord may
reasonably request, for the purpose of terminating any continuing effect of the previously recorded
memorandum of lease as a cloud upon title to the Real Property.




          28.21 Environmental Condition. Landlord hereby represents to Tenant that, to the best
of Landlord’s knowledge, the Premises and the Real Property are, and will be on the Commencement
Date, in full compliance with all Environmental Laws.




          28.22 Americans With Disabilities Act. Landlord hereby represents to Tenant that,
upon occupancy by Tenant, the Building will be in compliance with the Americans With Disabilities
Act and the regulations promulgated thereunder and with all other Applicable Legal Requirements and
rules governing access to and use of facilities by people with disabilities.




     29. AUTHORITIES FOR ACTION AND NOTICE.



          29.1 Unless otherwise provided, Landlord may act through Landlord’s Building Manager or other
designated representatives from time to time.




          29.2 All notices or other communications required or desired to be given to Landlord must be
in writing and shall be deemed received when delivered personally to any officer, partner, member
or manager of Landlord (depending upon the nature of Landlord) or the manager of the Building
Manager or three (3) days after deposited in the United States mail, postage prepaid, certified or
registered, return receipt requested, addressed as set forth in Section 1.9. All notices or
communications required or desired to be given to Tenant shall be in writing and deemed duly served
when delivered personally to any officer, employee, partner, member or manager of Tenant (depending
upon the nature of Tenant), or three (3) days after deposited in the United States mail, postage
prepaid, certified or registered, return receipt requested, addressed to the appropriate address
set forth in Section 1.11. Either party may designate in writing served as above provided a
different address to which notice is to be mailed. The foregoing does not prohibit notice from
being given as provided in Rule 4 of Colorado Rules of Civil Procedure, as amended from time to
time.




     30. PARKING. Subject to the provisions of this Section 30 and the reciprocal parking
easements set forth in the
Declaration, Landlord shall make available, at no additional cost, on-site, unassigned parking at a
ratio of ten (10) parking



 









 







spaces per one thousand (1,000) Rentable Square Feet allocated to the
Premises (as may be expanded pursuant to Sections 41 or 42 below), at the parking area more
particularly described on the plan attached hereto as Exhibit H (the “Parking Lot”).
Landlord shall make available two hundred fifty (250) of such parking spaces to Tenant on or before
the Commencement Date set forth herein. In addition, Landlord shall make available an additional
two hundred fifty (250) of such on-site, unassigned parking spaces at the Parking Lot to Tenant on
or before the earlier to occur of (i) the first anniversary of the Lease Commencement Date, or (ii)
the Rent Increase Date. Tenant shall have the right, in its sole discretion, to designate a
reasonable number of parking spaces as reserved for its visitors, guests and employees. As part of
Landlord’s Work, Landlord shall, at its sole cost and expense, install landscaping and pave and
stripe the Parking Lot, and install adequate lighting in all parking areas. Landlord shall be
responsible to plow and maintain the Parking Lot and maintain the lighting and landscaping serving
all parking areas, the cost of which shall be deemed an Operating Expense. All vehicles parked in
the Parking Lot and the personal property therein shall be at the sole risk of Tenant, Tenant’s
Agents and the users of such spaces. Landlord shall have no liability for loss or damage incurred
by Tenant, Tenant’s Agents and the users of such spaces for whatever cause. In the event that the
Expansion Space or any Potential Offering Space is added to the Premises in accordance with
Sections 41 or 42 below, Landlord shall provide Tenant, at no additional charge, additional
unassigned parking spaces at the Parking Lot a ratio of ten (10) parking spaces per one thousand
(1,000) Rentable Square Feet allocated to the Expansion Space or Potential Offering Space, as
applicable.



     31. BROKERAGE. Landlord and Tenant represent to the other that it has not employed
any broker with respect to this Lease and has no knowledge of any broker’s involvement in this
transaction except those listed in Sections 1.13 and 1.14 (collectively, the “Brokers”). Landlord
and Tenant shall indemnify the other against any expense incurred as a result of the inaccuracy of
the foregoing representation. Landlord shall pay any commissions due to the Brokers pursuant to
separate agreement(s).



     32. RESTRICTIONS ON PERMITTED USES. Landlord and Tenant acknowledge that the Premises
may only be used for the Permitted Use. Landlord or its affiliates may, at any time, cause to be
recorded with the Clerk and Recorder of Larimer County, Colorado, a document containing the
foregoing restrictions on permitted uses of the Premises.



          Tenant further agrees that at no time will any use of the Premises violate the terms of the
Exclusive Use Agreement between Banner Health System and McWhinney Holding Company, LLLP (“MHC
LLLP”), and its affiliates, dated June 28, 2000, and recorded August 2, 2000, at Reception No.
2000052392 or the terms of the Exclusive Use Agreement between Centerra Office Partners, LLC, MHC
LLLP and Poudre Valley Health Care, Inc. dated June 18, 2003, and recorded June 18, 2003, at
Reception No. 20030074443 of the Larimer County, Colorado records (collectively, the “MHC LLLP
Restrictions”).




     33. PUBLIC IMPROVEMENT FEE AND RETAIL SALES FEE. The Tenant hereby acknowledges and
agrees as follows with respect to the Declaration of Covenants Imposing and Implementing the
Centerra Public Improvement Fee dated July 6, 2004 and recorded in the real property records of
Larimer County at Reception No. 2004-0067081 (the “PIF Covenant”) and the Declaration of Covenants
Imposing and Implementing the Centerra Retail Sales Fee dated July 6, 2004 and recorded in the real
property records of Larimer County at Reception No. 2004-0067082 (the “RSF Covenant”) (all
capitalized terms used in this Section 33 and not otherwise defined having the meanings assigned
them in the PIF Covenant and the RSF Covenant): (i) the Tenant is bound by the provisions of the
PIF Covenant and RSF Covenant and agrees to comply with the same to the extent pertaining to the
Tenant, including the requirement to pay Public Improvement Fees and Retail Sales Fees in the event
that the Tenant becomes a Centerra Retailer; (ii) neither the Public Improvement Fee nor the Retail
Sales Fee is a tax in any form and, to the extent that the PIC, the Primary RSF Recipient, any
Designated Receiving Entity, any RSF Receiving Entity or any other entity entitled to Public
Improvement Fee Revenues or Retail Sales Fee Revenues under the MF&I Agreement or any other
agreement is entitled to receive such moneys, such authority is derived through the PIF Covenant,
the RSF Covenant, a collection agreement and the MF&I Agreement, and not through any exercise of
governmental powers; (iii) in addition to any one or more of the declarants of the PIF Covenant and
RSF Covenant, Centerra Metropolitan District No. 1 (the “Service District”), the Bond Trustee, the
PID, the PIC, the Primary RSF Recipient, any other RSF Recipient or any Designated Receiving Entity
will have a direct
cause of action and full right and authority to enforce the obligations of Centerra Retailers under
the PIF Covenant and
the RSF Covenant, and no default by the Landlord hereof under this Lease will entitle Tenant (if a
Centerra Retailer) to any



 









 







offset, deduction, or other defense to payment of the Public Improvement
Fees or Retail Sales Fees due under the PIF Covenant and RSF Covenant, respectively; (iv) the
provisions of the PIF Covenant and the RSF Covenant that pertain to Centerra Retailers have been
approved or agreed to by the Enforcing Parties and such Parties are or will be relying upon such
provisions in taking certain actions with respect to the Public Improvement Fee, the Retail Sales
Fee and the Eligible Costs with the express condition that the provisions of the PIF Covenant and
the RSF Covenant that pertain to Centerra Retailers may not be amended, modified or waived without
the prior written consent of the PIC, the Service District, the City, and the Primary RSF Recipient
and, accordingly, Tenant agrees that no amendment or modification will be made to, nor any waiver
made or accepted by the Tenant with respect to the provisions of the PIF Covenant or the RSF
Covenant that pertain to the Tenant, or the provisions of this Lease providing for compliance by
the Tenant (if a Centerra Retailer) with the provisions of the PIF Covenant and RSF Covenant,
unless such consents have been obtained and that any purported amendment, modification or waiver
without such consents will be void and of no force and effect.



     34. SATELLITE DISH, ANTENNA AND WIRELESS RIGHTS.



          34.1 Subject to the provisions of this Section 34, and upon approval by the Centerra Design
Review Committee and compliance with the Millennium GDP Guidelines, Tenant shall have the right to
install, operate and maintain one or more satellite dishes and/or antennas on the roof of the
Building for use by Tenant, its employees and invitees (collectively, the “Dish/Antenna”), free of
monthly rental charge during the Term. Notwithstanding anything to the contrary contained in this
Lease and in addition to any restrictions, prohibitions or requirements set forth in the
Declaration, Tenant shall not use the Dish/Antenna to provide telecommunication, video, data or
related services (collectively, “Communication Services”) to an unaffiliated tenant, occupant or
licensee of any building of than the Building, or to facilitate the provision of Communication
Services on behalf of another Communication Services provider to an unaffiliated tenant, occupant
or licensee of any building of than the Building.




          34.2 Prior to the expiration or earlier termination of this Lease, Tenant shall remove the
Dish/Antenna and any appurtenant equipment (if any). Such removal shall be at the sole cost and
expense of Tenant and Tenant shall, at its sole cost and expense, repair any damage caused by such
removal.




     35. LICENSE FOR USE OF THE MARK “CENTERRA.” Tenant agrees and acknowledges that
Landlord’s affiliate, MHC LLLP, is the owner of rights in the trademark and service mark
“CENTERRA,” used as a word mark and in various stylized forms, for use in connection with a wide
variety of real estate services, real estate development services, and other services related
thereto. In the event Tenant wishes to use MHC LLLP’s service mark “CENTERRA,” in any form, Tenant
agrees that it may only use the mark “CENTERRA” in connection with Tenant’s business operating on
the Premises and only after (i) Tenant has entered into a written license agreement with MHC LLLP
with regard to use of the mark “CENTERRA,” wherein such license agreement will specify the exact
nature and requirements regarding use of the mark “CENTERRA” and (ii) Tenant provides a written
copy of a fully executed license agreement or other evidence acceptable to Landlord evidencing that
Tenant has obtained a license from MHC LLLP to use the mark “CENTERRA” in connection with Tenant’s
business to be operated on the Premises.




     36. Intentionally Omitted. 



 









 





     37. SPECIALLY DESIGNATED NATIONALS AND BLOCKED PERSONS LIST.



          37.1 Tenant represents and warrants to Landlord that Tenant and all persons and entities
owning (directly or indirectly) an ownership interest in Tenant are currently in compliance with
and shall at all times during the term of this Lease (including any further extensions or renewals)
remain in compliance with the regulations of the Office of Foreign Assets Control of the United
States Department of the Treasury (“OFAC”) (including those named on OFAC’s Specially Designated
and Blocked Persons List) and any statute, executive order (including the September 24, 2001,
Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to
Commit or Support Terrorism), or other governmental action relating thereto.




          37.2 Landlord represents and warrants to Tenant that Landlord and all persons and entities
owning (directly or indirectly) an ownership interest in Landlord are currently in compliance with
and shall at all times during the term of this Lease (including any further extensions or renewals)
remain in compliance with the regulations of OFAC (including those named on OFAC’s Specially
Designated and Blocked Persons List) and any statute, executive order (including the September 24,
2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit,
Threaten to Commit or Support Terrorism), or other governmental action relating thereto.




     38. PERMITS. Landlord shall, in good faith, at its sole cost and expense (including,
without limitation, any building permit costs arising under the Title Restrictions), hereafter
promptly commence and diligently pursue the issuance of all licenses, permits, approvals and
consents necessary or required pursuant to Applicable Legal Requirements to allow Landlord to
complete Landlord’s Work, as defined in the attached Work Letter (the “Landlord Permits”). The
date on which all of the Landlord Permits have been issued, without any appeal having been taken
(or any such appeals having been dismissed), is referred to herein as the “Landlord Permits
Issuance Date.” If the Landlord Permits Issuance Date has not occurred on or before the date that
is eight (8) months after the date hereof, then Landlord or Tenant may elect to terminate this
Lease by giving the other written notice of such election at any time and before the Landlord
Permits Issuance Date. If Landlord or Tenant so elects to terminate, this Lease shall
automatically terminate as of the date of such termination notice. Tenant shall cooperate with
Landlord to the extent reasonably requested by Landlord, but at no out of pocket cost to Tenant, in
the process of obtaining the Landlord Permits. Adverse economic factors shall not constitute the
basis for failure by Landlord to obtain Landlord Permits.



     39. SIGNAGE. Tenant shall have the right, at no additional charge, to place (i)
monument signage on the Real Property, (ii) one (1) exterior sign on the Building, and (iii) to the
extent permitted by the City of Loveland, Colorado, additional signs on the Building, all of which
shall be for the purpose of identifying Tenant, subject to the approval of the Centerra Design
Review Committee and provided that all such signage is in compliance with the Millennium General
Development Plan and the Centerra Signage Guidelines (“Tenant’s Signage”). In addition, the size,
design and location of Tenant’s Signage shall be determined by Tenant, subject to the prior
approval of any regulatory authority having jurisdiction over the Building or Real Property. The
cost for the design, fabrication and installation of such Tenant’s signage shall be borne solely by
Tenant. Tenant will bear the costs of maintaining the signage in a first-class condition
throughout the Term and the costs of removal of any signage at the termination or expiration of
this Lease. If Tenant’s Signage shall be or become prohibited by any law, code, rule or
regulation of any governmental or quasi-governmental agency having jurisdiction over the Building,
Tenant shall immediately remove the signage upon notice from Landlord.



     40. OPTION TO EXTEND. Landlord grants to Tenant the options (each, an “Option”) to
extend the Term of this Lease for three (3) additional terms of three (3) years each (each, an
“Option Term”). The Option applies to the Premises, including the “Expansion Space” (pursuant to
Section 41 below) or the “Potential Offering Space” (pursuant to Section 42 below), if applicable,
and is expressly made subject to the following conditions:



               (1) Notice of Tenant’s election to exercise an Option must be given to Landlord no earlier
than eighteen (18) months and no later than nine (9) months prior to the Expiration Date of the
Initial Term, the first Option Term or the second Option Term, as applicable. If Tenant does not
timely notify Landlord, it shall be conclusively presumed that Tenant has waived its right to
exercise the respective Option and Landlord may thereafter lease the



 









 




Premises to any third parties upon such terms and conditions as Landlord shall elect and Tenant
shall have no further rights with respect to the Premises following the expiration of the Initial
Term, the first Option Term or the second Option Term, as applicable.




               (2) In the event Tenant shall fail to exercise the respective Option in the manner set forth
in this section, Tenant shall have no further rights to extend the Initial Term (or first Option
Term or second Option Term, as applicable) of this Lease.



               (3) Each Option granted hereunder shall be upon the same terms and conditions as are set forth
in this Lease except that the annual Base Rent during each year of any one (1) or more Option Terms
shall be equal to ninety-five percent (95%) of the Fair Market Rent for comparable space in a
comparable building within the master-planned community known as “Centerra” or in any other
comparable master-planned community situated in northern Colorado. The methodology for determining
the Fair Market Rent during each Option Term shall be the same as the methodology for determining
the Fair Market Rent for the “Expansion Space” pursuant to Section 41.2 below.



     41. EXPANSION OPTION.



          41.1 Tenant has the right, but not the obligation, to add to the Premises during the Initial
Term of this Lease, in accordance with the provisions of this Section 41, an additional area
containing approximately twenty thousand (20,000) Rentable Square Feet (“Expansion Space”), which
will consist of an expansion of the existing Building (“Expansion”) on the Real Property and on the
real property adjacent to the Real Property as shown on the site plan attached hereto as
Exhibit I (“Expansion Parcel”). Tenant shall exercise its right to add the Expansion Space
to the Premises by giving written notice to Landlord on or before the second anniversary of the
Rent Commencement Date hereunder (the “Expansion Notice”).




          41.2 Tenant shall be provided with an tenant improvement allowance of no less than Forty-Six
and 00/100 Dollars ($46.00) per Rentable Square Foot allocated to the Expansion Space. The Base
Rent for the Expansion Space will be the fair market rent for comparable space in a comparable
building in the master-planned community known as “Centerra” or any other similar master-planned
community in northern Colorado as reasonably determined by Landlord, provided, however, in no event
shall the Base Rent per Rentable Square Foot of the Expansion Space be less than the then current
Base Rent per Rentable Square Foot being charged by Landlord to Tenant for the rental of the
original Premises (i.e., 50,000 Rentable Square Feet). Within thirty (30) days after Landlord’s
receipt of the Expansion Notice, Landlord will notify Tenant of the proposed fair market rent for
the Expansion Space taking into account factors such as (but not limited to) the rental rate
currently charged by Landlord for space at the Building Complex, the term of the lease of the
Expansion Space, brokerage commissions, and any leasehold improvement allowances (including the
tenant improvement allowance provided to Tenant in connection with the Expansion Space) or other
inducements being offered (the “Fair Market Rent”). In the event that Tenant does not agree with
Landlord’s determination and the parties cannot thereafter mutually agree upon the Fair Market Rent
for the Expansion Space within ten (10) days after delivery of the initial determination by
Landlord, then the Fair Market Rent for the Expansion Space shall be determined as follows:




          (i) Landlord and Tenant, within ten (10) days after the expiration of such ten (10) day
period, shall each select an appraiser who is a member of the American Institute of Real Estate
Appraisers having at least ten (10) years’ experience in northern Colorado to determine the Fair
Market Rent (respectively, “Landlord’s Appraiser” and “Tenant’s Appraiser”).




          (ii) Landlord’s Appraiser and Tenant’s Appraiser shall conduct independent appraisals to
determine the Fair Market Rent and provide their results to the parties within thirty (30) days of
their selection. If the appraisals of Fair Market Rent produced by Landlord’s Appraiser and
Tenant’s Appraiser shall not differ by a margin of greater than five percent (5%), then the Fair
Market Rent shall be determined by taking the average of the two appraisals. If the said
appraisals shall differ by more than five percent (5%), then Landlord’s Appraiser and Tenant’s
Appraiser shall, within fourteen (14) days after the initial exchange of their respective
determinations, jointly select a third appraiser having the qualifications described above (the
“Third Appraiser”). The Third Appraiser shall not have acted in any capacity for




 









 




either Landlord or Tenant, or their affiliates, within five (5) years before his or her selection.
The Third Appraiser shall review the prior independent appraisals produced by Landlord’s Appraiser
and Tenant’s Appraiser, each of whom shall make available to the Third Appraiser all relevant
backup materials that they used in making their own determinations. Within thirty (30) days after
being appointed the Third Appraiser shall report in writing to the parties and their respective
Appraisers his or her determination of which of the two appraisals of Fair Market Rent is closest
to the determination of Fair Market Rent that the Third Appraiser would have made acting alone and
independently, it being understood that the Third Appraiser shall be expressly prohibited from
selecting a compromise figure. The results of the appraisal process and determination of the Fair
Market Rent, whether the result of the averaging of the respective determinations of Fair Market
Rent by Landlord’s Appraiser and Tenant’s Appraiser or the determination of the Third Appraiser as
set forth above, shall be deemed final and binding upon the parties (except to the extent otherwise
provided herein). Each party shall pay the fees and expenses of the appraiser it selected and the
fees and expenses of the Third Appraiser shall be borne equally by both parties.




          (iii) If Landlord or Tenant shall have failed to designate an appraiser within the time period
provided therefor above, then the appraiser which has been designated, whether by Landlord or
Tenant, shall alone make the determination of the Fair Market Rent. If Tenant and Landlord have
both designated appraisers but the two appraisers so designated do not agree upon and designate the
Third Appraiser willing so to act within the time period provided therefor above, the Tenant, the
Landlord or either appraiser previously designated may request the American Arbitration Association
(“AAA”) to designate the Third Appraiser willing so to act and an appraiser so appointed shall, for
all purposes, have the same standing and powers as though such appraiser had been seasonably
appointed by the appraisers first appointed. In case of the inability or refusal to serve of any
person designated as an appraiser, or in case any appraiser for any reason ceases to be such, an
appraiser to fill such vacancy shall be appointed by the Tenant, the Landlord, the appraiser first
appointed or the said AAA, as the case may be, which ever made the original appointment.




          41.3 Tenant shall have the right, within fifteen (15) days after the determination of the Fair
Market Rent as set forth in Section 41.2 above, to either (i) rescind the exercise of its option to
lease the Expansion Space or (ii) accept the determination of the Fair Market Rent for the
Expansion Space. Tenant shall provide written notice of such rescission or acceptance to Landlord
within said fifteen (15) day period (the “Expansion Accept/Reject Notice”). If Tenant elects to
accept the appraisers’ determination, Landlord and Tenant shall enter into the Expansion Amendment
and Expansion Work Letter and Landlord shall commence construction of the Expansion Space as
provided hereunder. If Tenant does not provide the Expansion Accept/Reject Notice within such
fifteen (15) day period or elects to rescind the exercise of its option to add the Expansion Space
to the Premises, Tenant will be deemed to have irrevocably waived and relinquished its right to add
the Expansion Space to the Premises and Landlord may sell or lease to a third party or otherwise
use all or any portion of the Expansion Parcel in its sole discretion.




          41.4 If Tenant elects to proceed to rent the Expansion Space pursuant to the Expansion
Accept/Reject Notice, Landlord shall promptly thereafter prepare an amendment to this Lease (the
“Expansion Amendment”) to reflect the commencement date of the term for the Expansion Space and the
changes in Base Rent, rentable square footage of the Premises, and other appropriate terms. The
Expansion Amendment shall include a work letter (“Expansion Work Letter”) containing substantially
the same terms and conditions as the original Work Letter attached to this Lease with respect to
the construction of the Building, including the core and shell specifications attached thereto for
the Landlord’s construction of the Expansion Space (the “Landlord’s Expansion Work”), to the extent
applicable. The Expansion Work Letter shall include a provision obligating the Landlord to pay, at
its sole expense, the cost of saw cutting, removal and disposal of knock-out panels to accommodate
construction of the Expansion Space. The Expansion Work Letter shall further provide for
Substantial Completion of the Landlord’s Expansion Work on or before the date that is one (1) year
after the date of the Expansion Amendment. Drafts of the Expansion Amendment and the Expansion Work
Letter shall be sent to Tenant within a reasonable time after Landlord’s receipt of Tenant’s
acceptance of the Fair Market Rent pursuant to the Expansion Accept/Reject Notice. Landlord and
Tenant shall work in good faith to mutually agree upon and execute and deliver to the other, the
Expansion Amendment (including the Expansion Work Letter) within thirty (30) days after Tenant’s
acceptance of the Fair Market Rent pursuant to the Expansion Accept/Reject Notice, but, following
such acceptance, an otherwise valid exercise of the Expansion Space option shall be fully effective
whether or not the Expansion Amendment is executed.






 









 








          41.5 The term of the Lease with respect to the Expansion Space shall commence on the first day
following Substantial Completion (as defined in the Expansion Work Letter) of the Landlord’s
Expansion Work (“Expansion Commencement Date”). Landlord shall deliver possession of the Expansion
Space to Tenant on the Expansion Commencement Date, vacant, broom clean and with the Landlord’s
Expansion Work Substantially Complete. On the Expansion Commencement Date, the “Premises” under
this Lease shall be deemed to consist of both the original Premises described in Section 1.2 above
and the Expansion Space and all of the terms and provisions of this Lease, as modified by this
Section 41 and the Expansion Amendment, shall apply to both such original Premises and the
Expansion Space. Landlord shall notify Tenant of the expected date for Substantial Completion of
Landlord’s Expansion Work at least thirty (30) days before such date.




          Notwithstanding any provision to the contrary herein, on or before the date that is
one-hundred fifty (150) days prior to the Expansion Commencement Date, Landlord shall provide
Tenant with access to the Expansion Space with the Initial Landlord’s Expansion Work (as defined
below) complete (the “Expansion Delivery Date”). Tenant shall be permitted continuous access to
the Expansion Space from and after the Expansion Delivery Date to enable Tenant to construct its
tenant improvements and install equipment, furniture, systems, telephone/data and otherwise perform
such work to prepare the Expansion Space for Tenant’s occupancy (“Tenant’s Expansion Finish Work”).
Landlord shall also provide Tenant with early access to the Expansion Space prior to the Expansion
Delivery Date to allow Tenant to install wire, cabling, conduits and other related equipment and
facilities related to or serving the HVAC and electrical systems at the Expansion Space. Tenant
and Landlord shall coordinate the timing and scope of such work at the Expansion Space prior to the
Expansion Delivery Date in order to allow for any Tenant installations that may be installed prior
to the completion of the applicable portions of the Landlord’s Expansion Work. All such early
access to the Premises, regardless of whether it occurs before or after the Expansion Delivery
Date, shall not trigger the “Expansion Commencement Date” or the “Expansion Rent Commencement Date”
of this Lease, and shall be subject to such reasonable rules and regulations as shall be
established by Landlord to protect Landlord’s Expansion Work, minimize conflicts between
contractors and subcontractors and maintain safety at the Expansion Space and the Premises. For
the purposes of this Section 41, the “Initial Landlord’s Expansion Work” shall mean the portions of
the Landlord’s Expansion Work that are equivalent or substantially similar to the Initial
Landlord’s Work (as defined above) or which are otherwise reasonably necessary to be completed
before Tenant is able perform and complete the Tenant’s Expansion Finish Work.




          Tenant’s obligation to pay Rent with respect to the Expansion Space shall commence on the
later of: (i) the Expansion Commencement Date, and (ii) the earlier of (a) the date that is one
hundred fifty (150) days after the Expansion Delivery Date (extended by one (1) day for each day of
Landlord Delay), and (b) the date that Tenant commences beneficial use of the Expansion Space for
its business purposes (the “Expansion Rent Commencement Date”).




          Landlord agrees that as of the Expansion Delivery Date, Tenant may commence Tenant’s Expansion
Finish Work in the Expansion Space subject to the provisions of the Expansion Amendment and
Expansion Work Letter (if applicable). Commencing on the Expansion Delivery Date, Tenant agrees
that all terms and provisions of this Lease (as amended by the Expansion Amendment and Expansion
Work Letter, if applicable) shall be in effect with respect to the Premises (including the
Expansion Space), excluding, however, Tenant’s obligation to pay Rent with respect to the Expansion
Space, which shall commence on the Expansion Rent Commencement Date. Notwithstanding the
foregoing, Tenant’s obligation to pay Base Rent and Tenant’s Pro Rata Share of Operating Expenses
with respect to the original Premises described in Section 1.2 above shall be in full force and
effect and shall in no event be affected by the Expansion Rent Commencement Date. Provisions
regarding completion of the Expansion Space shall be set forth in the Expansion Work Letter.
Except as provided in the Expansion Work Letter, and except for Landlord’s Expansion Work and any
latent defects or Punch List Items (as defined in the Expansion Work Letter), Landlord shall have
no obligation for completion or remodeling of the Expansion Space, and Tenant shall accept the
Expansion Space in its “as is” condition on the Expansion Commencement Date.




          41.6 Upon exercise of Tenant’s option pursuant to the Expansion Notice, the Expansion Space
will be delivered
by Landlord to Tenant with a tenant finish allowance equal to Forty-Six and 00/100 Dollars ($46.00)
per Rentable Square Foot allocated to the Expansion Space. Landlord will not be obligated to grant
any other allowances with respect to the Expansion Space except as set forth in this section.



 









 







          41.7 Upon the addition of the Expansion Space to the Premises, the Tenant’s Pro Rata Share of
Operating Expenses shall continue to be one hundred percent (100%) of all Operating Expenses in
connection with the Premises, including those with respect to the Expansion Space constituting a
part thereof.




          41.8 In the event that the Expansion Space is added to the Premises, the Initial Term of this
Lease set forth in Section 1.3 above shall be extended to be coterminous with a ten (10) year lease
of the Expansion Space commencing upon the Expansion Commencement Date. Upon such extension,
Landlord and Tenant agree to execute an Expansion Space Commencement Certificate in substantially
the form attached hereto as Exhibit C setting forth the exact Expansion Commencement Date
and Expansion Expiration Date of this Lease. Upon such extension, the Base Rent for the original
Premises set forth in Section 1.4 above shall continue to be Sixteen Dollars and Twenty-Five Cents
($16.25) per Rentable Square Foot allocated to the original Premises, increased annually on a
compounded basis at the rate of two percent (2%) per year during the extended Term of this Lease,
subject to Section 40 above. The extension of the Initial Term pursuant to this Section 41.8 shall
not affect Tenant’s Options to extend the term of this Lease in accordance with Section 40 above.




          41.9 If Tenant elects to proceed to rent the Expansion Space pursuant to the Expansion
Accept/Reject Notice, Landlord shall, in good faith, at its sole cost and expense (including,
without limitation, any building permit costs arising under the Title Restrictions), promptly
thereafter commence and diligently pursue the issuance of all licenses, permits, approvals and
consents necessary or required pursuant to Applicable Legal Requirements to allow Landlord to
complete Landlord’s Expansion Work (the “Landlord Expansion Permits”). The date on which all of
the Landlord Expansion Permits have been issued, without any appeal having been taken (or any such
appeals having been dismissed), is referred to herein as the “Landlord Expansion Permits Issuance
Date.” If the Landlord Expansion Permits Issuance Date has not occurred on or before the date that
is eight (8) months after the date of Tenant’s Expansion Accept/Reject Notice, then Landlord or
Tenant may elect to terminate Tenant’s exercise of its option under this Section 41 to lease the
Expansion Space by giving the other written notice of such election at any time and before the
Landlord Expansion Permits Issuance Date. If Landlord or Tenant so elects to terminate, the
Expansion Amendment and Expansion Work Letter shall automatically terminate as of the date of such
termination notice. Tenant shall cooperate with Landlord to the extent reasonably requested by
Landlord, but at no out of pocket cost to Tenant, in the process of obtaining the Landlord
Expansion Permits. Adverse economic factors shall not constitute the basis for failure by Landlord
to obtain Landlord Expansion Permits.




          41.10 Landlord acknowledges that Tenant will be occupying the Premises (or a portion thereof)
while Landlord’s Expansion Work will be performed, and that noise, dust, relocation of Tenant’s
property and other activities associated with Landlord’s Expansion Work may be disruptive to the
business operations of Tenant in the Premises. Landlord shall (i) coordinate the timing of
construction work so as to minimize interference with Tenant’s business operations, including
scheduling demolition work before 9:00 a.m. and after 6:00 p.m. on business days, (ii) erect and
maintain a temporary dust barrier between that portion of the Premises in which the Landlord’s
Expansion Work occurs and the remaining portions of the Premises, and (iii) otherwise use
reasonable efforts to minimize any disturbance to Tenant, Tenant’s employees, invitees or agents,
and Tenant’s personal property and equipment located at the Premises.




     42. RIGHT OF FIRST REFUSAL.



          42.1 Landlord shall have the right, at any time during the Term of this Lease except during
the 3-Year RFR Term (defined below), to construct a separate building at the Expansion Parcel (the
“Expansion Building”) or to sell or lease the Expansion Parcel or the Expansion Building to a third
party. Such construction and operation of the Expansion Building by Landlord or a third party
shall not interfere with Tenant’s access or use of the Premises as contemplated hereunder, or
otherwise adversely affect Tenant’s rights hereunder. Notwithstanding the foregoing, Tenant shall
have the ongoing right of first refusal (the “Right of First Refusal”) during the third, fourth and
fifth Lease Years (“3-Year RFR Term”) to lease the Expansion Building or Expansion Parcel, or any
portions thereof (each such space, a “Potential Offering Space”). Tenant’s Right of First Refusal
shall be exercised as follows: if at any time during the 3-Year RFR Term Landlord enters into a
letter
of intent (or otherwise reaches agreement on material transaction terms) to sell or lease a
Potential Offering Space to a third party, then prior to selling or leasing such Potential Offering
Space to a party other than Tenant, Landlord shall provide notice



 









 






to Tenant in writing and offer to
lease the Potential Offering Space to Tenant at the Fair Market Rent as determined in accordance
with Section 41.2 above (the “Lease Offer”). Tenant shall have forty-five (45) days following
delivery of the Lease Offer in which to notify Landlord of its desire to exercise its option to
lease the Potential Offering Space (“Lease Offer Exercise Notice”). In the event that Tenant
rejects the Lease Offer or fails to notify Landlord of its desire to lease the Potential Offering
Space within said forty-five (45) day period, Tenant will be deemed to have irrevocably waived and
relinquished its right to lease the Potential Offering Space.




          42.2 The Fair Market Rent for the Potential Offering Space shall be determined in accordance
with Section 41.2 above. Tenant shall have the right, within fifteen (15) days after the
determination of the Fair Market Rent as set forth in Section 41.2 above, to either (i) rescind the
exercise of its option to lease the Potential Offering Space or (ii) accept the determination of
the Fair Market Rent for the Potential Offering Space. Tenant shall provide written notice of such
rescission or acceptance to Landlord within said fifteen (15) day period (the “Lease Accept/Reject
Notice”). If Tenant elects to accept the appraisers’ determination, Landlord and Tenant shall
enter into the RFR Amendment and RFR Work Letter (as defined below) and Landlord shall commence
construction of the Potential Offering Space as provided hereunder. If Tenant does not provide the
Lease Accept/Reject Notice within such fifteen (15) day period or elects to rescind the exercise of
its option to lease the Potential Offering Space, Tenant will be deemed to have irrevocably waived
and relinquished its right to lease the Potential Offering Space, and Landlord may, for a period of
six (6) months thereafter during the 3-Year RFR Term, lease to a third party on the terms set forth
in the Lease Offer. If Landlord is unable to lease the Potential Offering Space to a third party
on the terms set forth in the Lease Offer within said six (6) month period but during the 3-Year
RFR Term, then Landlord must again present a Lease Offer to Tenant for the Potential Offering Space
in accordance with this Section 42.




          42.3 If Tenant elects to proceed to lease the Potential Offering Space pursuant to the Lease
Accept/Reject Notice, Landlord shall promptly thereafter prepare an amendment to this Lease (the
“RFR Amendment”) to reflect the commencement date of the term for the Potential Offering Space and
the changes in Base Rent, rentable square footage of the Premises, and other appropriate terms.
The RFR Amendment shall include a work letter (“RFR Work Letter”) containing substantially the same
terms and conditions as the original Work Letter attached to this Lease with respect to the
construction of the Building, including the core and shell specifications attached thereto for
Landlord’s construction of the Potential Offering Space (the “Landlord’s RFR Work”), to the extent
applicable. The RFR Work Letter shall provide for Substantial Completion of the Landlord’s RFR
Work on or before the date that is one (1) year after the date of Tenant’s Lease Offer Exercise
Notice. Drafts of the RFR Amendment and the RFR Work Letter shall be sent to Tenant within a
reasonable time after Landlord’s receipt of Tenant’s acceptance of the Fair Market Rent pursuant to
the Lease Accept/Reject Notice. Landlord and Tenant shall work in good faith to mutually agree upon
and execute and deliver to the other, the RFR Amendment (including the RFR Work Letter) within
thirty (30) days after Tenant’s acceptance of the Fair Market Rent pursuant to the Lease
Accept/Reject Notice, but, following such acceptance, an otherwise valid exercise of the Right of
First Refusal with respect to the Potential Offering Space shall be fully effective whether or not
the RFR Amendment is executed.




          42.4 The term of the Lease with respect to the Potential Offering Space shall commence on the
first day following Substantial Completion (as defined in the RFR Work Letter) of the Landlord’s
RFR Work (“Offering Space Commencement Date”). Landlord shall deliver possession of the Potential
Offering Space to Tenant on the Offering Space Commencement Date, vacant, broom clean and with the
Landlord’s RFR Work Substantially Complete. On the Offering Space Commencement Date, the
“Premises” under this Lease shall be deemed to consist of both the original Premises described in
Section 1.2 above and the Potential Offering Space and all of the terms and provisions of this




 









 







Lease, as modified by this Section 42 and the RFR Amendment, shall apply to both such original
Premises and the Potential Offering Space. Landlord shall notify Tenant of the expected date for
Substantial Completion of Landlord’s RFR Work at least thirty (30) days before such date.




          Notwithstanding any provision to the contrary herein, on or before the date that is
one-hundred fifty (150) days prior to the Offering Space Commencement Date, Landlord shall provide
Tenant with access to the Potential Offering Space with the Initial Landlord’s RFR Work (as defined
below) complete (the “Offering Space Delivery Date”). Tenant shall be permitted continuous access
to the Potential Offering Space from and after the Offering Space Delivery Date to enable Tenant to
construct its tenant improvements and install equipment, furniture, systems, telephone/data and
otherwise perform such work to prepare the Potential Offering Space for Tenant’s occupancy
(“Tenant’s RFR Finish Work”). Landlord shall also provide Tenant with early access to the
Potential Offering Space prior to the Offering Space Delivery Date to allow Tenant to install wire,
cabling, conduits and other related equipment and facilities related to or serving the HVAC and
electrical systems at the Potential Offering Space. Tenant and Landlord shall coordinate the
timing and scope of such work at the Potential Offering Space prior to the Offering Space Delivery
Date in order to allow for any Tenant installations that may be installed prior to the completion
of the applicable portions of the Landlord’s RFR Work. All such early access to the Potential
Offering Space, regardless of whether it occurs before or after the Offering Space Delivery Date,
shall not trigger the “Offering Space Commencement Date” or the “Offering Space Rent Commencement
Date” of this Lease. For the purposes of this Section 42, the “Initial Landlord’s RFR Work” shall
mean the portions of the Landlord’s RFR Work that are equivalent or substantially similar to the
Initial Landlord’s Work (as defined above) or which are otherwise reasonably necessary to be
completed before Tenant is able perform and complete the Tenant’s RFR Finish Work.




          Tenant’s obligation to pay Rent with respect to the Potential Offering Space shall commence on
the later of: (i) the Offering Space Commencement Date, and (ii) the earlier of (a) the date that
is one hundred fifty (150) days after the Offering Space Delivery Date (extended by one (1) day for
each day of Landlord Delay), and (b) the date that Tenant commences beneficial use of the Potential
Offering Space for its business purposes (the “Offering Space Rent Commencement Date”).




          Landlord agrees that as of the Offering Space Delivery Date, Tenant may commence Tenant’s RFR
Finish Work in the Potential Offering Space subject to the provisions of the RFR Amendment and RFR
Work Letter (if applicable). Commencing on the Offering Space Delivery Date, Tenant agrees that
all terms and provisions of this Lease (as amended by the RFR Amendment and RFR Work Letter, if
applicable) shall be in effect with respect to the Premises (including the Potential Offering
Space), excluding, however, Tenant’s obligation to pay Rent with respect to the Potential Offering
Space, which shall commence on the Offering Space Rent Commencement Date. Notwithstanding the
foregoing, Tenant’s obligation to pay Base Rent and Tenant’s Pro Rata Share of Operating Expenses
with respect to the original Premises described in Section 1.2 above shall be in full force and
effect and shall in no event be affected by the Offering Space Rent Commencement Date. Provisions
regarding completion of the Potential Offering Space shall be set forth in the RFR Work Letter.
Except as provided in the RFR Work Letter, and except for Landlord’s RFR Work and any latent
defects or Punch List Items (as defined in the RFR Work Letter), Landlord shall have no obligation
for completion or remodeling of the Potential Offering Space, and Tenant shall accept the Potential
Offering Space in its “as is” condition on the Offering Space Commencement Date.




          42.5 Upon exercise of Tenant’s Right of First Refusal to lease the Potential Offering Space,
the Potential Offering Space will be delivered by Landlord to Tenant with a tenant finish allowance
equal to Forty-Six and 00/100 Dollars ($46.00) per Rentable Square Foot allocated to the Potential
Offering Space. Landlord will not be obligated to grant any other allowances with respect to the
Potential Offering Space except as set forth in this section.




          42.6 In the event that Tenant exercises its Right of First Refusal to lease the Potential
Offering Space, the Initial Term of this Lease set forth in Section 1.3 above shall be extended to
be coterminous with a ten (10) year lease of the Potential Offering Space commencing upon the
Offering Space Commencement Date. Upon such extension, Landlord and Tenant agree to execute a
Offering Space Commencement Certificate in substantially the form attached hereto as Exhibit
C setting forth the exact Offering Space Commencement Date and Offering Space Expiration Date
of this Lease. Upon such extension, the Base Rent for the original Premises set forth in Section
1.4 above shall continue to be Sixteen Dollars and Twenty-Five Cents ($16.25) per Rentable Square
Foot allocated to the original Premises, increased annually on a




 









 







compounded basis at the rate of two percent (2%) per year during the extended Term of this Lease,
subject to Section 40 above. The extension of the Initial Term pursuant to this Section 42.6 shall
not affect Tenant’s Options to extend the term of this Lease in accordance with Section 40 above.




          42.7 If Tenant elects to proceed to rent the Potential Offering Space pursuant to the Lease
Accept/Reject Notice, Landlord shall, in good faith, at its sole cost and expense (including,
without limitation, any building permit costs arising under the Title Restrictions), promptly
thereafter commence and diligently pursue the issuance of all licenses, permits, approvals and
consents necessary or required pursuant to Applicable Legal Requirements to allow Landlord to
complete Landlord’s RFR Work (the “Landlord RFR Permits”). The date on which all of the Landlord
RFR Permits have been issued, without any appeal having been taken (or any such appeals having been
dismissed), is referred to herein as the “Landlord RFR Permits Issuance Date.” If the Landlord RFR
Permits Issuance Date has not occurred on or before the date that is eight (8) months after the
date of Tenant’s Lease Accept/Reject Notice, then Landlord or Tenant may elect to terminate
Tenant’s exercise of its option under this Section 42 to lease the Potential Offering Space by
giving the other written notice of such election at any time and before the Landlord RFR Permits
Issuance Date. If Landlord or Tenant so elects to terminate, the RFR Amendment and RFR Work Letter
shall automatically terminate as of the date of such termination notice. Tenant shall cooperate
with Landlord to the extent reasonably requested by Landlord, but at no out of pocket cost to
Tenant, in the process of obtaining the Landlord RFR Permits. Adverse economic factors shall not
constitute the basis for failure by Landlord to obtain Landlord RFR Permits.




          42.8 Landlord acknowledges that Tenant will be occupying the Premises (or a portion thereof)
while Landlord’s RFR Work will be performed, and that noise, dust, relocation of Tenant’s property
and other activities associated with Landlord’s RFR Work may be disruptive to the business
operations of Tenant in the Premises. Landlord shall (i) coordinate the timing of construction
work so as to minimize interference with Tenant’s business operations and shall schedule all
demolition work before 9:00 a.m. and after 6:00 p.m. on business days, (ii) erect and maintain a
temporary dust barrier between that portion of the Premises in which the Landlord’s RFR Work occurs
and the remaining portions of the Premises (if applicable), and (iii) otherwise use reasonable
efforts to minimize any disturbance to Tenant, Tenant’s employees, invitees or agents, and Tenant’s
personal property and equipment located at the Premises.




     43. AIRPORT. Tenant acknowledges that the Premises are located within the inner
critical zone of the Fort Collins-Loveland Municipal Airport (“Airport”) as such term is defined in
the “Land Use Plan Fort Collins-Loveland Municipal Airport, Loveland, Colorado,” as amended. As a
result of the close proximity of the Premises to the Airport, Tenant further acknowledges that,
during the Term of the Lease, various types of aircraft will occupy the airspace above and adjacent
to the Premises, including, but not limited to, jet aircraft, propeller-driven aircraft, civil
aircraft, military aircraft, commercial aircraft, helicopters and all types of aircraft or vehicles
now in existence or hereafter developed, regardless of existing or future noise levels, for the
purpose of transporting persons or property through the air. Tenant enters into this Lease with
full knowledge of the potential impact of the proximity of the Airport to the Premises and the
operations conducted thereon. In consideration of Landlord entering into this Lease with Tenant,
and except to the extent of any breach by Landlord of its obligations under Section 12 above,
Tenant hereby fully waives, remises and releases Landlord, its members, managers, agents,
employees, contractors, successors and assigns (collectively, “Released Parties”), from any claims,
damages, actions, causes of action or rights which it may now have or which it may have in the
future against the Released Parties due to noise, vibrations, fumes, dust, fuel particles and all
other effects that may be caused or may have been caused by the operation of aircraft landing at,
or taking off from, or operating at or on the Airport, including aircraft landing at the Airport as
part of air shows conducted at special events authorized by the City.



     44. Intentionally Omitted.



     45. ARBITRATION.



          45.1 (a) In any instance where this Lease expressly provides, or the parties otherwise agree,
that a dispute with respect to a specific matter may be submitted to arbitration, but excluding any
arbitration pursuant to the determination of the Fair Market Rent pursuant to Sections 40, 41 and
42 above, then either party may submit such dispute for resolution by arbitration in Loveland,
Colorado in accordance with the Commercial Arbitration Rules (Expedited Procedures) of the AAA,





 









 







except that the terms of this Section 45.1 shall supersede any conflicting or otherwise
inconsistent rules. Any dispute permitted to be arbitrated under this Section 45.1 shall be
submitted to arbitration not later than thirty (30) days after the parties have been unable to
resolve such dispute (it being agreed that if there has been no resolution of the disputed matter
for a period of thirty (30) days (or such other period that may be set forth in the express
provisions of this Lease) the parties shall be deemed to have been unable to resolve such dispute).
Provided the rules and regulations of the AAA so permit, (i) the AAA shall, within two (2)
business days after such submission or application, select a single arbitrator having at least ten
(10) years’ experience in leasing and management of commercial properties similar to the Building,
(ii) the arbitration shall commence two (2) business days thereafter and shall be limited to a
total of seven (7) hours on the date of commencement until completion, with each party having no
more than a total of two (2) hours to present its case and to cross examine or interrogate persons
supplying information or documentation on behalf of the other party, and (iii) the arbitrator shall
make a determination within three (3) business days after the conclusion of the presentation of
Landlord’s and Tenant’s cases, which determination shall be limited to a decision upon (A) if the
matter in dispute involves a question of the reasonableness of a decision in which Landlord or
Tenant, as the case may be, specifically agreed that it would not be unreasonable, whether Landlord
or Tenant, as the case may be, acted reasonably in withholding its consent or approval, or (B) the
specific dispute permitted to be presented to the arbitrator, as applicable. The arbitrator’s
determination shall be final and binding upon the parties, whether or not a judgment shall be
entered in any court. All actions necessary to implement such decision shall be undertaken as soon
as possible, but in no event later than ten (10) business days after the rendering of such
decision. The arbitrator’s determination may be entered in any court having jurisdiction thereof.
All fees payable to the AAA for services rendered in connection with the resolution of a dispute
under this Section 45.1 shall be paid by the unsuccessful party.




               (b) The arbitrator(s) conducting any arbitration shall be bound by the provisions of this
Lease and shall not have the power to add to, subtract from, or otherwise modify such provisions.
Landlord and Tenant agree to sign all documents and to do all other things reasonably necessary to
submit any such matter to arbitration and further agree to, and hereby do, waive any and all rights
they or either of them may at any time have to revoke their agreement hereunder to submit to
arbitration and to abide by the decision rendered thereunder which shall be binding and conclusive
on the parties and shall constitute an “award” by the arbitrator(s) within the meaning of the AAA
rules and applicable law. Judgment may be had on the decision and award of the arbitrator(s) so
rendered in any court of competent jurisdiction. Each arbitrator shall be a qualified,
disinterested and impartial person who shall have had at least ten (10) years’ experience in
northern Colorado in a calling connected with the matter of the dispute. Landlord and Tenant shall
each have the right to appear and be represented by counsel before said arbitrator(s) and to submit
such data and memoranda in support of their respective positions in the matter in dispute as may be
reasonably necessary or appropriate in the circumstances. Each party hereunder shall pay its own
costs, fees and expenses in connection with any arbitration or other action or proceeding brought
under this Section 45, and, except as otherwise expressly provided in this Section 45.1, the
expenses and fees of the arbitrator selected shall be shared equally by Landlord and Tenant.



               (c) Notwithstanding any contrary provisions contained herein, Landlord and Tenant agree that
except with respect to a successful claim by one party that the other party has unreasonably
withheld its consent in an arbitrary or capricious manner, (i) the arbitrators may not award or
recommend any damages to be paid by either party and (ii) in no event shall either party be liable
for, nor be entitled to recover, any damages.



               (d) The time periods set forth in this Section 45.1 are of the essence. If any party fails to
appear at a duly scheduled and noticed hearing, the arbitrator is hereby expressly authorized (but
not directed) to enter judgment for the appearing party.



          45.2 (a) Notwithstanding the provisions of Section 45.1, if Landlord and Tenant are unable to
agree (i) whether the Landlord’s Secondary Initial Work,
Initial Landlord’s Work, the Initial Landlord’s
 Expansion Work, or the Initial Landlord’s RFR Work is complete, (ii) whether the
Landlord’s Work, the Landlord’s Expansion Work, or the Landlord’s RFR Work is Substantially
Complete, (iii) upon the actual date that (a) the Delivery Date, the Commencement Date, or the Rent
Commencement Date occurred, (b) the Expansion Delivery Date, the Expansion Commencement Date, or
the Expansion Rent Commencement Date occurred, or (c) the Offering Space Delivery Date, the
Offering Space Commencement Date, or the Offering Space Rent Commencement Date occurred, and/or
(iii) whether a Tenant Delay or Landlord Delay has occurred, or in any other instance where there
is a dispute regarding Landlord’s Work or Tenant’s Finish
Work, Landlord’s



 









 






Expansion Work or Tenant’s Expansion Finish Work, or Landlord’s RFR Work or
Tenant’s RFR Finish Work, then either party may submit such dispute for resolution by arbitration
in Loveland, Colorado (and not by litigation), in accordance with the provisions this Section 45,
and judgment upon the award rendered may be entered in any court having jurisdiction thereof.




               (b) The party hereto desiring to arbitrate a dispute pursuant to this Section 45.2 shall give
notice (a “Dispute Notice”) to that effect to the other party, and such dispute shall be presented
for resolution by the determination of a majority the arbitrators selected in accordance with this
Section 45.2(b). Landlord and Tenant, within ten (10) days after the Dispute Notice, shall each
select an arbitrator who is a member of the AAA having at least ten (10) years’ experience in the
leasing of office space in northern Colorado (respectively, “Landlord’s Arbitrator” and “Tenant’s
Arbitrator”). Landlord’s Arbitrator and Tenant’s Arbitrator shall, within five (5) days
thereafter, jointly select a third arbitrator having the qualifications described above (the “Third
Arbitrator”, and together with the Landlord’s Arbitrator and the Tenant’s Arbitrator, the
“Arbitrators”). Each arbitrator shall be a qualified, disinterested and impartial person.



               (c) If Landlord or Tenant shall have failed to designate an arbitrator within the time period
provided therefor above, then the arbitrator which has been designated, whether by Landlord or
Tenant, shall alone arbitrate the dispute. If Tenant and Landlord have both designated arbitrators
but the two arbitrators so designated do not agree upon and designate the third arbitrator willing
so to act within the time period provided therefor above, the Tenant, the Landlord or either
arbitrator previously designated may request the AAA to designate the third arbitrator willing so
to act and an arbitrator so appointed shall, for all purposes, have the same standing and powers as
though such arbitrator had been seasonably appointed by the arbitrators first appointed. In case
of the inability or refusal to serve of any person designated as an arbitrator, or in case any
arbitrator for any reason ceases to be such, an arbitrator to fill such vacancy shall be appointed
by the Tenant, the Landlord, the arbitrator first appointed or the said AAA, as the case may be,
which ever made the original appointment.



               (e) Within two (2) business days after the Dispute Notice has been delivered, both parties
shall make whatever presentations they wish to the Arbitrators, including, without limitation, the
submission of photographs taken at the Premises and the applicable portions of the construction
manager’s daily log book. Immediately thereafter, the Arbitrators shall attempt to cause Landlord
and Tenant to agree on a resolution to the dispute and, failing that, the Arbitrators shall
immediately make their decision according to the determination of a majority of the Arbitrators.
The Arbitrators’ decision may be made orally provided the Arbitrators confirm such decision in
writing within two (2) business days thereafter. Copies of the Arbitrators’ decision shall be sent
to Landlord and to Tenant and shall be binding on both. Any costs incurred by or payable to the
Arbitrators in any such proceeding shall be paid by the party which does not prevail or as shall be
determined by the Arbitrators, and each party shall bear the costs and expenses of its own
attorneys and other experts. The Arbitrators shall have no power to vary or modify any of the
provisions of this Lease, and his or her powers and jurisdiction are hereby limited accordingly.
During the consideration of any issue by the Arbitrators pursuant to this Section 45.2, Tenant and
Landlord shall observe and perform each and every one of its obligations hereunder, including,
without limitation, the obligation to pay timely all Rent that may be or become due or payable
hereunder and the obligation to complete the Landlord’s Work. Any construction lender of Landlord,
or such lender’s representative, shall have the right to attend any and all arbitration proceedings
conducted pursuant to this Section 45.2 for the purpose of observing such proceedings; provided,
however, that such lender shall have no right to participate in any way in any such proceeding.



     46. COUNTERPARTS. This Lease may be executed in two (2) or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one (1) and the same
instrument. Any one (1) or more counterpart signature pages may be removed from one (1)
counterpart of the Lease and annexed to another counterpart of the Lease to form a completely
executed original instrument without impairing the legal effect of the signature thereon.



     47. EXHIBITS. See the Work Letter and Exhibits A, B, C, D, E, F, G, H, I, J and K
attached hereto and incorporated herein.



     IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first above
written and it is effective upon delivery of a fully-executed copy to Tenant.



 









 







	 	 	 	 	 	 	 
	CONSTANT CONTACT, INC.,	 	 
	     a Delaware corporation	 	 
	 
	 	 	 	 	 	 
	By:
	 	/s/ Gail F. Goodman	 	 
	 	 	 	 	 
	Print Name:	 	Gail F. Goodman
	 

	 	 	 	 	 	 
	Print Title:	 	President and CEO	 	 
	 
	 	 	 	 	 	 
	ATTEST:
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	By:
	 	/s/ Robert P. Nault	 	 	 	 
	 	 	 	 	 
	Print Name:	 	Robert P. Nault	 	 
	 

	 	 	 	 	 	 
	Print Title:	 	VP and General Counsel	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	“Tenant”
	 	 









	 	 	 	 	 
	 	MCWHINNEY 409CC, LLC, a Colorado limited

     liability company

 	 
	 	By:  	McWhinney Real Estate Services, Inc.,
 	 
	 	 	a Colorado corporation, Manager 	 



	 	 	 	 	 
	 	 	 
	 	By:  	/s/
Douglas L. Hill
 	 
	 	 	Douglas L. Hill, Chief Operating Officer 	 
	 	 	
“Landlord” 	 
	 









 









 





EXHIBIT A TO LEASE




THE PREMISES

[Intentionally Omitted]




 









 





EXHIBIT B TO LEASE




REAL PROPERTY




[Intentionally
Omitted]






 









 








EXHIBIT C TO LEASE




COMMENCEMENT CERTIFICATE




[Intentionally
Omitted]


 









 








EXHIBIT D




WORK LETTER

(Office)




Constant Contact, Inc.

Reservoir Place

1601 Trapelo Road, Suite 329

Waltham, MA 02494




	 	 	 	 	 
	Re:

	 	Tenant:
	 	CONSTANT CONTACT, INC., a Delaware corporation
	 
	 	 	 	 
	 

	 	Premises:
	 	Approximately fifty thousand (50,000)

Rentable Square Feet (the “Premises”)
	 
	 	 	 	 
	 

	 	Address:
	 	Entire building to be constructed on Precision Drive, Loveland, Colorado 80538






Gentlemen:




     Concurrently herewith, you (“Tenant”) and the undersigned (“Landlord”) have
executed a Lease (the “Lease”) covering the Premises (the provisions of the Lease are
hereby incorporated by reference as if fully set forth herein and initially
capitalized words not defined have the same meaning set forth in the Lease). In
consideration of the execution of the Lease, Landlord and Tenant mutually agree as
follows:



1. Landlord’s Work




     1.1 Landlord shall, at its sole cost and expense (including, without limitation,
any costs in connection with space planning for the core and shell of the Building,
construction and permits), (i) install site improvements on the Real Property
substantially in accordance with the general layout depicted on Exhibit H
attached to the Lease and (ii) construct the Building and complete certain base
building improvements at the Premises to prepare the same for Tenant’s occupancy as
more particularly described on Exhibit A attached to this Work Letter, which
improvements are hereinafter referred to as the “Landlord’s Work.” The Landlord shall
have the right to make changes and modifications to the Landlord’s Work during
construction if required by building codes or Applicable Legal Requirements subject to
the Tenant’s prior reasonable approval. Landlord shall complete the Landlord’s Work
in a good and workmanlike manner in accordance with all Applicable Legal Requirements,
and in accordance with final plans and specifications to be agreed upon by the parties
pursuant to the terms of this Work Letter, subject to any “Force Majeure Delays” (as
defined in Section 3.10 below) and any “Tenant Delays” (as defined in Section 1.6.3
below), in accordance with the construction schedule attached hereto as Exhibit
E (the “Construction Schedule”).



     1.2 The parties hereby acknowledge and approve the preliminary site plan attached
hereto as Exhibit F, and the specifications attached hereto as Exhibit
A, each of which have been prepared by the Landlord and submitted to the Tenant
(collectively, the “Preliminary Plans and Specifications”).



     1.3 Within thirty (30) days following the execution of the Lease, Landlord shall
produce and submit to Tenant a complete set of construction plans and specifications
(“Construction Drawings”),



 









 




including architectural, structural, mechanical and
electrical drawings, technical drawings, schedules, diagrams and specifications (which
may be submitted separately, provided each are submitted within said 30 day period),
all in sufficient detail to allow for the construction of the Landlord’s Work in
accordance therewith. Such Construction Drawings shall be consistent with the
Preliminary Plans and Specifications.




     1.4 Tenant shall then have fifteen (15) business days following its receipt of
the Construction Drawings in which to determine whether the Construction Drawings are
consistent with the Preliminary Plans and Specifications and to approve or disapprove
of the same on the basis thereof. Any notice of disapproval sent by Tenant shall set
forth in detail Tenant’s reasons for determining that the subject Construction
Drawings are not consistent with the Preliminary Plans and Specifications. If Tenant
shall notify Landlord within said fifteen (15) business day period of its disapproval
of the Construction Drawings, Landlord shall promptly revise said Construction
Drawings in accordance with such comments and shall submit the revised documents to
Tenant. Tenant shall then have an additional period of fifteen (15) business days in
which to approve or disapprove of the revised Construction Drawings in accordance with
the procedure outlined above. If Tenant fails to give notice within the applicable
fifteen (15) business day period that it disapproves of the Construction Drawings or
any revisions thereto submitted by Landlord, said Construction Drawings shall be
deemed to have been approved. Upon Tenant’s approval or deemed approval, such
Construction Drawings shall constitute the “Final Plans and Specifications.” Tenant
agrees that it will not withhold its approval to any of the plans and specifications
submitted pursuant to this Section 1.4 except for just and reasonable cause and will
not act in an arbitrary or capricious manner with respect to the approval of the same.



     1.5 From and after the approval of the Final Plans and Specifications, upon the
request of Landlord to amend the Final Plans and Specifications or the request of
Tenant with respect to a Change Order, the other party hereto shall accept or reject
such request within five (5) business days thereof, and a failure to respond within
said 5 business day period shall be deemed an approval of such a request.



     1.6 Substantial Completion.



          1.6.1 Landlord shall obtain all permits and approvals for the construction of the
Landlord’s Work in accordance with Section 38 of the Lease, and shall diligently
proceed with the construction of the Landlord’s Work. The Landlord’s Work shall be
deemed to be “Substantially Complete” on the later of (i) the date that all Landlord
Work has been performed, other than any minor details of construction, mechanical
adjustment or any other similar matter, the non-completion of which does not
materially interfere with Tenant’s use of the Premises as certified by Landlord’s
architect (“Punch List Items”), and (ii) the date Landlord obtains a certificate of
completion from the City of Loveland, Colorado, for the Landlord’s Work.




          1.6.2 Landlord shall notify Tenant of the expected date for Substantial
Completion of Landlord’s Work at least thirty (30) days before such date. Following
such notice, Tenant shall have the right to inspect the Building, together with
“Landlord’s Representative” (as defined in Section 1.8 below) or another
representative of Landlord, for purposes of agreeing upon the Punch List Items. With
the exception of the Punch List Items and any construction defects or latent defects,
Tenant shall be deemed to have accepted the condition of the Building as of the
Commencement Date. Landlord shall thereafter promptly commence and diligently pursue
to completion the Punch List Items, with a minimum of interference with the Tenant’s
Finish Work and Tenant’s occupancy and use of the Premises.




          1.6.3 Notwithstanding the foregoing, in the event that Landlord is prevented from
substantially completing the Landlord’s Work due to a Tenant Delay (as defined below),
the Landlord’s Work shall be deemed to be substantially completed for purposes of
determining the Commencement Date under the Lease on that date on which said
Substantial Completion would have occurred but for the applicable Tenant Delay, as
reasonably determined by Landlord’s architect. “Tenant Delay” means any one of the
following to the extent that the same actually delays the Substantial Completion of
the Landlord Work: (1) Tenant’s failure to furnish information or approvals within any time period
specified in this Work Letter; (2) changes requested or made by Tenant to previously
approved plans and specifications (including any Change Orders); or (3) performance of
work in the Premises by Tenant or Tenant’s Contractors during




 









 




the performance of the
Landlord Work, which delays the performance of the Landlord’s Work. Landlord shall
notify Tenant in writing of any circumstances of which Landlord is aware that have
caused or may cause a Tenant Delay, so that Tenant may take whatever action is
appropriate to minimize or prevent such Tenant Delay. For purposes of the foregoing
sentence, correspondence via e-mail or facsimile delivered to Tenant’s Representative
shall constitute written notice of such Tenant Delay. No Tenant Delay shall be deemed
to commence unless and until Landlord has provided Tenant with written notice to
Tenant specifying that a delay has occurred because of actions, inaction or
circumstances specified in the notice in reasonable detail and Tenant has failed to
cure the same within five (5) days thereafter.




          1.6.4 Any dispute arising under this Work Letter (including, without limitation,
with respect to determining Substantial Completion of the Landlord’s Work), shall be
subject to the dispute resolution provisions in Section 45 of the Lease.




          1.6.5 Notwithstanding any provision to the contrary contained in the Lease or
this Work Letter, in the event that the Commencement Date is later than three hundred
ninety (390) days following the date of the issuance by the City of Loveland,
Colorado, of a footing and foundation permit for the Building (subject to extension
for any Force Majeure Delay or any Tenant Delay) (the “Outside Termination Date”),
then Tenant shall have the right to terminate the Lease by written notice to Landlord
at any time after the Outside Termination Date, but prior to the Commencement Date.




     1.7 Change Orders. Tenant may request changes to the Final Plans and
Specifications from time to time by written notice to Landlord of the requested
changes in sufficient detail to enable Landlord to process and implement such changes
(“Change Orders”), provided that Tenant may not by change order, materially alter the
basic size, shape, structure, or site layout of the Building or significantly delay
completion of Landlord’s Work. Landlord shall not unreasonably withhold approval of
Tenant’s Change Orders. Tenant shall in any event pay Landlord for any and all
increased costs resulting from any Change Order, including without limitation any
architectural fees and construction cost increases, and any reasonable costs incurred
by Landlord in reviewing and processing the Change Order. Within five (5) business
days after receipt of a Change Order, Landlord shall provide Tenant with an estimate
of any increased costs and delays in completion of Landlord’s Work and the Delivery
Date for the Premises resulting from the Change Order. Subject to Landlord’s payment
of the Finish Allowance, Tenant shall pay fifty percent (50%) of such estimated amount
prior to Landlord’s commencement of any work in connection with the Change Order.
Subject to Landlord’s payment of the Finish Allowance, the remainder of any additional
costs resulting from the Change Order shall be paid to Landlord not later than ten
(10) days after written notice from Landlord of the amount due, accompanied by
reasonable supporting documentation. The term “Final Plans and Specifications” as
used herein shall, as the context requires, include any and all approved Change
Orders.



     1.8 Landlord’s Guaranty of Construction. Landlord hereby agrees to correct all
defects in Landlord’s Work at Landlord’s sole cost and expense.



     1.9 Intentionally Omitted.



     1.10 Condition of Premises. Landlord hereby covenants and warrants with respect
to the Landlord’s Work (collectively, “Landlord’s Warranty”) that (i) all materials
shall be new and of good quality; (ii) all sub-contractors and workmen shall be
skilled in their trades; (iii) all work shall be of good workmanship and like quality;
(iv) the Landlord’s Work shall be built as to comply with all Applicable Legal
Requirements; and (v) Landlord shall, during the term of the Lease and at Landlord’s
sole cost and expense, remedy or correct any material or workmanship in the Landlord’s
Work which is inconsistent with the warranties made in the foregoing subparts (i)
through (iv) (as to any such item which requires remediation or correction, the
“Defective Item” or, collectively, the “Defective Items”) within thirty (30) days
after written notice from Tenant to Landlord specifying the Defective Items, or in the
case of any Defective Item which cannot with reasonable diligence be remediated or
corrected within said thirty (30)
day period, Landlord shall immediately proceed, after written notice from Tenant, to
commence the remediation or correction of such Defective Item and thereafter shall
diligently pursue the same to completion (the “Correction Period”).



 









 





     1.11 Landlord’s Contractors (as defined below) performing Landlord’s Work after
the Delivery Date (as defined in Section 5.2 of the Lease) will be obligated to
cooperate with contractors employed by Tenant who are completing work in the Building
(“Tenant’s Contractors”) and such Contractors will each conduct their respective work
in an orderly fashion and manner so as not to unreasonably interfere with the
other(s). Landlord will cause Landlord’s Contractors to: (i) conduct work so as not to
unreasonably interfere with Tenant’s Finish Work; (ii) reach an agreement with
Tenant’s Contractors as to the terms and conditions for hoisting, systems interfacing,
and use of temporary utilities; and (iii) deliver to Tenant such evidence of
compliance with the provisions of this paragraph as Tenant may reasonably request.



     1.12 Landlord will indemnify, defend and hold harmless Tenant and Tenant’s
Contractors from and against liability, costs or expenses, including attorneys’ fees
on account of damage to the person or property of any third party arising out of, or
resulting from the performance of the Landlord’s Work. Landlord will also repair or
cause to be repaired at its expense all damage caused to the Premises by Landlord’s
Contractors or its subcontractors.



     1.13 Landlord shall require Landlord’s Contractors, in writing, to warrant and
agree, at their expense, to correct or cause to be corrected any defects in the
Landlord’s Work (including, but not limited to, defects due to defective workmanship
or materials whether supplied, installed or performed by the Landlord’s Contractor or
any subcontractor or supplier) which occur within one (1) year after the Landlord’s
Contractor has substantially completed the Landlord’s Work, including completion of
all Punch List Items, or for such longer period as may be set forth in the Final Plans
and Specifications. Landlord’s Contractors will require a similar warranty in all
subcontracts, and will deliver to Landlord, together with appropriate assignments, if
required, all warranties of subcontractors and suppliers.



2. Space Planning and Engineering




     2.1 Within thirty (30) days after execution of the Lease, Tenant shall provide to
Landlord a Tenant-approved space plan for the Premises (the “Space Plan”) prepared by
an architect reasonably approved by Landlord (“Tenant’s Architect”). The Space Plan
will contain information specified in Exhibit B attached hereto and will be
sufficiently complete to permit Landlord to review such drawings for the purpose of
determining conformity with the base building specifications for the Building and for
the purposes described in Section 2.2 below. The Space Plan will be prepared by
Tenant’s Architect at Tenant’s sole cost and expense, subject to Landlord’s payment of
the Finish Allowance as hereinafter provided.



     2.2 Within five (5) business days of receipt by Landlord of the Space Plan,
Landlord and its engineers (“Landlord’s Engineers”) will review the Space Plan and
confer with Tenant. Tenant’s Architect will advise Landlord and Landlord’s Engineers
whether the base building specifications for the Building will have to be supplemented
to allow installation of work shown on the Space Plan. If Landlord determines that
the Space Plan (i) is inconsistent with the Preliminary Plans and Specifications for
the Building, including the HVAC system or electrical system; (ii) does not contain
all of the information specified in Exhibit B or is not sufficiently complete
to permit Landlord to review it for the purposes set forth herein; or (iii) indicates
space usages inconsistent with the Lease, Landlord will advise Tenant and Tenant will
revise the Space Plan accordingly, resubmit it to Landlord, and the review procedure
and time frames set forth above will be repeated. If Landlord fails to give notice
within the applicable five (5) business day period that it disapproves of the Space
Plan or any revisions thereto submitted by Tenant, said Space Plan shall be deemed to
have been approved. When approved by Landlord and Tenant, the Space Plan will be
signed or initialed by Landlord and Tenant; such approved drawings will be deemed the
“Approved Plan.” Landlord’s approval of the Space Plan creates no responsibility or
liability on the part of Landlord for completeness, design sufficiency, or compliance
with all Applicable Legal Requirements.



     2.3 Tenant will submit to Landlord architectural working drawings prepared by
Tenant’s Architect (the “Architectural Drawings”) for the Premises substantially in
the form required in Exhibit B.
The Architectural Drawings will be coordinated by Tenant’s Architect with the
Construction Drawings prepared by Landlord’s Engineers. The Architectural Drawings
will be a logical extension of the Approved Plan. Tenant, through Tenant’s Architect,
will be responsible for compliance of the Architectural Drawings



 









 




with Applicable Legal
Requirements. If the review by Landlord or Landlord’s Engineers uncovers design
errors, Landlord will give notice thereof within five (5) business days after
Landlord’s receipt of the Architectural Drawings submitted by Tenant; if the drawings
are deemed acceptable in Landlord’s reasonable discretion, Landlord will communicate
its approval on or before the expiration of such period. If Landlord does not reply
within such period, it will be deemed that Landlord has approved the Architectural
Drawings. Any changes to the Architectural Drawings requested by Landlord after its
written or deemed approval thereof shall be subject to Tenant’s prior written
approval, which approval shall not be unreasonably withheld, conditioned or delayed so
long as the same are consistent with the Approved Plan, and shall be at Landlord’s
sole cost and expense. If Landlord notifies Tenant of design errors, Tenant will
revise the Architectural Drawings accordingly and resubmit them to Landlord and the
review procedure set forth above will be repeated. When approved by Landlord and
Tenant, the Architectural Drawings will be signed or initialed by Tenant and Landlord.




     2.4 Changes to the Architectural Drawings may be made only upon prior written
approval of Landlord, which approval will not be unreasonably withheld, conditioned or
delayed. Landlord will respond to all written requests for changes within three (3)
business days of Landlord’s receipt. If Landlord does not respond within such
period, Landlord will be deemed to have consented to the requested changes.
Landlord’s review of the Space Plan or Architectural Drawings does not imply approval
by Landlord as to compliance with Applicable Legal Requirements.



     2.5 Landlord agrees that it will not withhold its approval to any of the plans
and specifications submitted pursuant to this Section 2 except for just and reasonable
cause and will not act in an arbitrary or capricious manner with respect to the
approval of the same.



3. Tenant’s Finish Work and Finish Allowance




     3.1 Following Landlord’s approval of the Architectural Drawings and after the
Delivery Date (as defined in Section 5.2 of the Lease), Tenant shall be responsible
for the diligent completion of all finish work substantially in accordance with the
Architectural Drawings (the “Tenant’s Finish Work”), at its sole cost and expense,
subject to Landlord’s payment of the Finish Allowance.



     3.2 Tenant agrees to execute a contract for design and construction services to
complete the Tenant’s Finish Work (the “Contract”) with contractors and subcontractors
reasonably approved by Landlord (collectively, “Tenant’s Contractors”), which approval
shall not be unreasonably withheld, conditioned or delayed. Tenant and Tenant’s
Contractors will be required to adhere to the requirements set forth on Exhibit
C (collectively, “Requirements”). The Contract will incorporate the provisions of
the Requirements. Prior to execution of the Contract, Tenant will provide a copy to
Landlord. Landlord will review the Contract for compliance with the Requirements
within two (2) business days thereafter and will advise if any modifications are
required. Following approval, Tenant will promptly commence and proceed diligently to
complete the Tenant’s Finish Work. Notwithstanding any provision contained in the
Lease or this Work Letter, Landlord hereby consents and agrees that, at Tenant’s
election (i) Tenant may use Burkett Design as Tenant’s Architect in connection with
the Landlord’s Work and the Tenant’s Finish Work, and (ii) Tenant may use Catalyst
Planning Group as its construction manager in connection with the Landlord’s Work and
the Tenant’s Finish Work.



     3.3 Tenant’s Contractors will be obligated to cooperate with contractors employed
by Landlord who are completing work in the Building (“Landlord’s Contractors”) and
such Contractors will each conduct their respective work in an orderly fashion and
manner so as not to unreasonably interfere with the other(s). Notwithstanding the
foregoing, Tenant’s subcontractors with respect to all mechanical, electrical, fire
protection and controls work in the Premises will be subject to Landlord’s prior
approval, which approval shall not be unreasonably withheld, conditioned or delayed.



     3.4 Tenant assumes full responsibility for performance by Tenant’s Contractors of
all Tenant’s Finish Work, including compliance with Applicable Legal Requirements, and
for all property, equipment, materials, tools or machinery of Tenant’s Contractors
placed or stored in the Premises during the completion thereof. All such work is to
be performed in a good and workmanlike manner.



 









 





     3.5 Tenant will cause Tenant’s Contractors to: (i) comply with the Requirements
and all other rules and regulations relating to construction activities in the
Building reasonably promulgated from time to time by Landlord for the Building for the
purpose of avoiding damage to Landlord’s Work or Tenant’s Finish Work, minimizing
conflicts between Landlord’s Contractors and Tenant’s Contractors and maintaining
safety during the construction process; (ii) cooperate with contractors employed by
Landlord who are completing the Landlord’s Work and conduct work so as not to
unreasonably interfere with any other construction occurring in the Building;
(iii) reach an agreement with Landlord’s Contractors as to the terms and conditions
for hoisting, systems interfacing, and use of temporary utilities; and (iv) deliver to
Landlord such evidence of compliance with the provisions of this paragraph as Landlord
may reasonably request.



     3.6 Tenant shall require Tenant’s Contractors, in writing, to warrant and agree
at their expense to correct or cause to be corrected any defects in the Tenant’s
Finish Work (including, but not limited to, defects due to defective workmanship or
materials whether supplied, installed or performed by Tenant’s Contractors or any
subcontractor or supplier) which occur within one (1) year after Tenant’s Contractors
have substantially completed the Tenant’s Finish Work, including completion of all
punchlist items, or for such longer period as may be set forth in the plans and
specifications for Tenant’s Finish Work. Tenant’s Contractors will require a similar
warranty in all subcontracts.



     3.7 Landlord will contribute toward the cost of the Tenant’s Finish Work
completed in accordance with the Architectural Drawings (including the cost of
preparation of the Space Plan and Architectural Drawings and Landlord’s review
thereof) up to a maximum of Forty-Six Dollars ($46.00) per Rentable Square Foot
allocated to the Premises (i.e. Two Million Three Hundred Thousand Dollars
[$2,300,000.00] total based upon fifty thousand [50,000] Rentable Square Feet, subject
to adjustment pursuant to Section 5.5 of the Lease) (the “Finish Allowance”). The
cost of all Tenant’s Finish Work in excess of the Finish Allowance will be at Tenant’s
expense.



     3.8 The Finish Allowance is to be paid to Tenant in periodic disbursements in
accordance with this Section 3.8. As design, engineering, and construction work is
completed and Tenant receives invoices therefor, Tenant will submit requests for
payment to Landlord not more frequently than monthly, along with appropriate lien
waivers (substantially in the forms attached hereto as Exhibits D-1,
D-2, D-3 and D-4 with such modifications as the contractor or
supplier may reasonably require) and such other documentation as Landlord reasonably
requires. Notwithstanding the foregoing, Tenant shall not be required to provide lien
waivers for any contractors or suppliers other than (i) Tenant’s general contractor,
or (ii) any subcontractor performing work in excess of Ten Thousand 00/100 Dollars
($10,000.00). Within thirty (30) days following receipt of such documentation,
Landlord will pay the amounts requested by delivery to Tenant of Landlord’s check(s)
payable to Tenant or, at Landlord’s option, payable to Tenant and Tenant’s Contractors
jointly up to an aggregate not to exceed the Finish Allowance. The Finish Allowance
may be used by Tenant for all project costs, including, but not limited to,
telephone/data cabling, furniture affixed to the Premises, architectural and
engineering costs, construction management fees, computer rooms, UPS and generators,
signage, satellite dishes and/or antennas, etc. for the Premises, but not for other
movable furniture, equipment, and trade fixtures not physically attached to the
Premises. Any of Landlord’s costs and expenses required to be paid by Tenant will
also be paid out of the Finish Allowance and Landlord shall have the right to deduct
such amounts from the Finish Allowance to reimburse it for amounts so expended by it.
Notwithstanding any provision to the contrary in this Work Letter or the Lease, any
unused balance of the Finish Allowance on the date that Tenant first occupies the
Premises for the operation of its business purposes shall be applied to Rent next due
and payable.



     3.9 Lease Commencement and Delivery



          3.9.1 Subject to the provisions of this Work Letter and the Lease, the
Commencement Date of the Lease shall occur on the first day following Substantial
Completion of “Landlord’s Work.”




          3.9.2 Notwithstanding any provision to the contrary herein, Landlord shall
provide Tenant with access to the Premises on the Delivery Date with the Initial
Landlord’s Work (as defined in




 









 




Section 5.2 of the Lease) completed or to be completed
on or before the completion dates set forth on Exhibit E to the Lease. Tenant
shall be permitted continuous access to the Premises from and after the Delivery Date
to enable Tenant to construct the Tenant’s Finish Work and install equipment,
furniture, systems, telephone/data and otherwise perform such work to prepare the
Premises for Tenant’s occupancy. Landlord shall also provide Tenant with early access
to the Premises prior to the Delivery Date to allow Tenant to install wire, cabling,
conduits and other related equipment and facilities related to or serving the HVAC and
electrical systems at the Premises. Tenant and Landlord shall coordinate the timing
and scope of such work at the Premises prior to the Delivery Date in order to allow
for any Tenant installations that may be installed prior to the completion of the
applicable portions of the Landlord’s Work. All such early access to the Premises,
regardless of whether it occurs before or after the Delivery Date, shall not trigger
the “Commencement Date” or the “Rent Commencement Date” of the Lease, and shall be
subject to such reasonable rules and regulations as shall be established by Landlord
to protect Landlord’s Work, minimize conflicts between contractors and subcontractors
and maintain safety at the Premises. Commencing on the Delivery Date, Tenant




 









 




agrees that all terms and provisions of the Lease shall be in effect, excluding,
however, Tenant’s obligation to pay Rent which shall commence on the Rent Commencement
Date as provided in Section 1.8 of the Lease.




          3.9.3 Tenant shall, within fifteen (15) business days after the Delivery Date,
notify Landlord in writing if Tenant objects to the Landlord’s determination that Item
Nos. 1 through 7, inclusive, of Initial Landlord’s Work is complete (“First Initial
Work Notice”). Thereafter, Tenant shall, within sixty (60) business days after the
Delivery Date, notify Landlord in writing if Tenant objects to the Landlord’s
determination that Item Nos. 8 through 13, inclusive, of Initial Landlord’s Work is
complete, or if there are any additional items of the Landlord’s Work that require
completion prior to commencement of the Tenant’s Finish Work (“Second Initial Work
Notice”). If Tenant provides a First Initial Work Notice to Landlord, then the
Delivery Date shall be deemed to occur on the date that Landlord completes Item Nos. 1
through 7, inclusive, of Initial Landlord’s Work, including those portions thereof
identified by Tenant in the First Initial Work Notice which have not been completed by
Landlord. If Tenant provides a Second Initial Work Notice to Landlord, then Item Nos.
8 through 13, inclusive, of Initial Landlord’s Work, shall be deemed to be completed
on the date that Landlord completes Item Nos. 8 through 13, inclusive, of Initial
Landlord’s Work, including those portions thereof identified by Tenant in the Second
Initial Work Notice which have not been completed by Landlord. Landlord shall
promptly commence and diligently complete any items of work identified in such written
notices. The failure by Tenant to provide Landlord with the First Initial Work Notice
and/or Second Initial Work Notice shall be deemed acceptance of such Initial
Landlord’s Work with respect to the applicable notice.




          3.9.4 “Landlord Delay” means any one of the following to the extent that the same
actually delays the substantial completion of the Tenant’s Finish Work: (1) Landlord’s
failure to furnish information or approvals within any time period specified in this
Work Letter; (2) changes requested or made by Landlord to previously approved plans
and specifications; (3) performance of work in the Premises by Landlord or Landlord’s
Contractors during the performance of the Tenant’s Finish Work, which delays the
performance of the Tenant’s Finish Work; (4) any delay in the performance of
Landlord’s Work (including, without limitation, portions of Initial Landlord’s Work or
other work specified in the Initial Work Notice) that prevents Tenant from performing
the Tenant’s Finish Work in accordance with its contemplated schedule; or (5) any
other act by Landlord, or its agents, employees and contractors which delays the
Tenant’s Finish Work. Tenant shall notify Landlord in writing of any circumstances of
which Tenant is aware that have caused or may cause a Landlord Delay, so that Tenant
may take whatever action is appropriate to minimize or prevent such Landlord Delay.
For purposes of the foregoing sentence, correspondence via e-mail or facsimile
delivered to Landlord’s Representative, shall constitute written notice of such
Landlord Delay. No Landlord Delay shall be deemed to commence unless and until Tenant
has provided Landlord with written notice to Landlord specifying that a delay has
occurred because of actions, inaction or circumstances specified in the notice in
reasonable detail and Landlord has failed to cure the same within five (5) days
thereafter.




     3.10 “Force Majeure Delays” means any actual delay in the construction of the
Landlord’s Work (other than Landlord Delays and Tenant Delays) occasioned by any cause
whatsoever not within the control of Landlord and/or Landlord’s Contractors and which
Landlord and/or Landlord’s Contractors could not, by reasonable diligence, have
avoided, including, but not limited to, delays caused or contributed to by
governmental or quasi-governmental entities, vandalism, fire, or other casualty, labor
disputes, adverse weather, and acts of God. Such acts, omissions or circumstances,
however, shall not relieve Landlord of liability in the event of its failure to use
reasonable diligence to remedy the situation and remove the cause in an adequate
manner and with all reasonable dispatch and to give notice and full particulars of the
same in writing to Tenant as soon as possible after the occurrence of the cause relied
on. The requirement that any force majeure be remedied with all reasonable dispatch
shall not require the settlement of strikes or labor controversies by acceding to the
demands of the opposing party or parties. Landlord agrees that any delays relating to
the funding or financing of Landlord’s Work shall not constitute “Force Majeure
Delays” hereunder.



     3.11 Tenant will indemnify, defend and hold harmless Landlord, its Building
Manager, and Landlord’s Contractors from and against liability, costs or expenses,
including attorneys’ fees on account of



 









 




damage to the person or property of any third party arising out of, or resulting from
the performance of the Tenant’s Finish Work. Tenant will also repair or cause to be
repaired at its expense all damage caused to the Premises by Tenant’s Contractors or
its subcontractors.




     3.12 Upon Tenant’s written request, Landlord will, during completion of the
Tenant’s Finish Work and immediately thereafter, reasonably cooperate in the balancing
of the Building HVAC system serving the Premises at Tenant’s sole cost and expense.
Subject to Landlord’s payment of the Finish Allowance, Tenant will pay all such
reasonable expenses within ten (10) days after billing from Landlord with reasonable
supporting documentation.



     3.13 Tenant will indemnify, defend and hold harmless Landlord, its Building
Manager, and Landlord’s Contractors from and against liability, costs or expenses,
including attorneys’ fees on account of damage to the person or property of any third
party arising out of, or resulting from the performance of the Tenant’s Finish Work,
including, but not limited to, mechanics’ or other liens or claims (and all costs
associated therewith). Tenant will also repair or cause to be repaired at its expense
all damage caused to the Premises by Tenant’s Contractors or its subcontractors.
Further, Landlord will have the right, in accordance with Section 12.3 of the Lease,
to post and maintain notices of non-liability.



     3.14 Tenant shall submit to Landlord within thirty (30) days after completion of
all work, one (1) reverse mylar sepia and a CD or DVD disk containing both CAD and PDF
electronic files of the as built drawings (i.e., the Architectural Drawings showing
all changes thereon).



     3.15 Each party authorizes the other to rely in connection with their respective
rights and obligations under this Section 3.15 upon approval and other actions on the
party’s behalf by Landlord’s Representative in the case of Landlord or Tenant’s
Representative in the case of Tenant or by any person designated in substitution or
addition by notice to the party relying. “Landlord’s Representative” shall mean Dean
Barber. “Tenant’s Representative” shall mean Tom Howd or any other party he may
designate in a writing delivered to Landlord.



     3.16 All notices required hereunder will be in writing in accordance with the
terms and provisions of Section 29.2 of the Lease.



Very truly yours,




MCWHINNEY 409CC, LLC, a Colorado limited

liability company




	 	 	 
	By:

	 	McWhinney Real Estate Services, Inc.,

a Colorado corporation, Manager






	 	 	 	 	 
	 	 	 
	 	By:  	     /s/ Douglas L. Hill
 	 
	 	 	Douglas L. Hill, Chief Operating Officer 	 
	 	 	"Landlord" 	 
	 




 









 





ACCEPTED AND APPROVED this 30th day

of    May    , 2008.




CONSTANT CONTACT, INC.,

a Delaware corporation




	 	 	 	 	 
	By:

	 	/s/ Gail F. Goodman
	 	 
	 

	 	 	 	 
	Print Name: Gail F. Goodman	 	 
	Print Title: President and CEO	 	 
	 
	 	 	 	 
	 

	 	“Tenant"	 	 






LIST OF EXHIBITS




	 	 	 
	Exhibit A

	 	Landlord’s Work
	Exhibit B

	 	Space Plan and Architectural
	 

	 	Drawings Requirements
	Exhibit C

	 	Landlord’s Requirements of Contracts
	Exhibit D

	 	Form of Lien Waivers
	Exhibit E

	 	Construction Schedule
	Exhibit F

	 	Site Plan







 











 





EXHIBIT E TO LEASE




INITIAL LANDLORD’S WORK



[Intentionally
Omitted]



 









 





EXHIBIT F TO LEASE




LANDLORD’S OPERATING EXPENSE ESTIMATE



[Intentionally
Omitted]



 









 








EXHIBIT G TO LEASE




APPROVED
LOCATION OF CERTAIN TENANT IMPROVEMENTS

[Intentionally Omitted]







 









 








EXHIBIT H TO LEASE




PARKING
LOT


[Intentionally Omitted]





 









 








EXHIBIT I TO LEASE




EXPANSION
PARCEL


[Intentionally Omitted]






 









 








EXHIBIT J TO LEASE




RULES AND REGULATIONS




[Intentionally
Omitted]



 









 








EXHIBIT K TO LEASE




TITLE RESTRICTIONS




[Intentionally
Omitted]