**Exhibit 10.61**

 
|                                                   |                                                       |   |
|---------------------------------------------------|------------------------------------------------------------|--------|
| Metroplex                                         | 7388 S Revere Pkwy,  Unit 603  Centennial, CO 80112   |
| Control Systems                                   | Phone (720) 875-0303  ·  Fax (720) 875-0800 |
| An ISI Detention  Contracting Group. Inc. Company | www.metroplex-control.com                                  |

 

FACSIMILETRANSMITTAL SHEET

 
| TO:             |   | FROM:                                |
|-----------------|--------|--------------------------------------|
| Mike  Sweet     |   | Melissa  Dolan                       |
|            |   |                                 |
| COMPANY:        |   | DATE:                                |
| ISI             |   | 1/29/2004                            |
|            |   |                                 |
| FAX NUMBER:     |   | TOTAL NO. OF PAGES INCLUDING  COVER: |
|            |   | 4                                    |
|            |   |                                 |
| PHONES NUMBER:  |   | SENDER’S REFERENCE  NUMBER:     |
|            |   |                                 |
| RE:             |   | YOUR REFERENCE NUMBER:               |
| Building  Lease |   |                                 |

 
| o URGENT |   | x FOR REVIEW |   | o PLEASE COMMENT |   | o PLEASE REPLY |   | o PLEASE RECYCLE |
|----------|--------|--------------|--------|------------------|--------|----------------|--------|------------------|

 

Mike,

 

I was told by Bruce thatyou needed the following information in regards to our lease. Please see theattached. If you need any additional information please let me know.

 

Thank you,

 
| /s/  Melissa Dolan |   |
|--------------------|--------|
| Melissa  Dolan     |   |

 

----

 

 

Triple NetProperties, LLC

 

January 29, 2004

 
| Ms, Melissa Dolan                       |   |                   |
|-----------------------------------------|--------|------------------------|
| MCFSA. LTD.                             |   | Via Fax (720) 875-0800 |
| 7388 S. Revere Parkway,  Suite 601 |   |                   |
| Centennial CO 80112                     |   |                   |

 
| Re:    |   | MCFSA, Ltd.               |
|--------|--------|---------------------------|
|   |   | Suite 601                 |
|   |   | Arapahoe Business Part  1 |
|   |   | Centennial, Colorado      |

 

Dear Melissa: 

 

Thank you for your phonecall today. I have attached our letter to you of December 15, 2003 whichdetails your operating expenses for 2004.

 

In addition to thatletter, following is the Base Rent charges in accordance with your lease for2004:

 

Base Rent (1/1/04-8/31/04)                                  $3,890.00/mo.

Base Rent (9/1/04-12/31/04)                                $4,006.70.mo.

 

Should you have anyadditional needs, please let me know.

 

Thank you,

 

Sincerely,

 

**TRIPLE NET PROPERTIES, LLC**

 
| /s/ Sharon Ott              |   |
|-----------------------------|--------|
| Sharon Ott                  |
| Assistant Property  Manager |

 

Encl.

 

3410 S. Galena, Suite 220 · Denver, CO80231

303.300.4910 · fax303.300.4913

 

----

 

December 15, 2003

 

**MCFSA. LTD.**

7388 South RevereParkway, Suite 601

Centennial, CO 80112

 
| Re:    |   | MCFSA, Ltd.,  Suite 601                   |
|--------|--------|------------------------------------------------|
|   |   | Arapahoe Business Park I  Centennial, Colorado |
|   |   | 2004 Operating Expense  Budget                 |

 

Dear Tenant:

 

Attached please find yourestimated 2004 Operating Expense Budget for your business location at ArapahoeBusiness Park I in Centennial, Colorado.

 

Please review and notethat 2004 monthly additional rent charges will change effective January 1,2004. Attached you will find a list of estimated operating expenses for 2004and a worksheet with the breakdown of your prorata share. Below is the amountof your previous operating expenses and your 2004 estimated operating expenses.Should you have any questions please call me direct at (303) 300-4910.

 
| ** **   | ** ** | **2003 Operating Expenses** | ** ** | **2004 Est. Operating Expenses** | ** ** | **Change** | ** ** |
|--------------|------------|---------------------------------------|------------|-------------------------------------------------|------------|------------|------------|
| CAM          |       | $                                     | 1,909.99   |                                            | $          | 1,406.32   |       | $ | (503.67 | ) |
| Insurance    |       | 136.15                                |       | 146.94                                          |       | 10.79      |       |
| Property Tax |       | 1,843.86                              |       | 1,780.03                                        |       | (63.83     | )          |
| Total        |       | $                                     | 3,890.00   |                                            | $          | 3,333.29   |       | $ | (556.71 | ) |

 

Sincerely,

 

**TRIPLE NET PROPERTIES, LLC**

 
| /s/ Meredith Witucki |   |
|----------------------|--------|
| Meredith Witucki     |
| Portfolio Manager    |

 

Enclosure

 

1551 North Tustin Avenue,Suite 200 · Santa Ana, CA 92705

tel 714.667.8252 ·toll-free 877.888.REIT (7348) · 714.836.5263 · fax714.667.6860

 

----

 

**ARAPAHOEBUSINESS PARK I**

**2004ESTIMATED OPERATING EXPENSES**

 
| TENANT:             |   |   |   | MCFSA, Ltd. |   |
|---------------------|--------|--------|--------|-------------|--------|
| SPACE NO.:          |   |   |   | 601         |   |
| START:              |   |   |   | 1/1/1998    |   |
| END:                |   |   |   | 12/31/2007  |   |
| SQ. FT.:            |   |   |   | 7,780       |   |
| CAM SQ.FT.          |   | 55,163 |   | 14,10       | %      |
| INSURANCE SQ.FT.    |   | 55,163 |   | 14.10       | %      |
| PROPERTY TAX SQ.FT. |   | 55,163 |   | 14.10       | %      |

 
| **CAM EXPENSES:**                    | ** ** | **COMMON  AREA  ONLY** | ** ** | **PRORATA  SHARE** | ** ** |
|--------------------------------------|------------|------------------------|------------|--------------------|------------|
| ** **                           | ** ** | ** **             | ** ** | ** **         | ** ** |
| Landscaping  Contract & Supplies |       | $                      | 17,380.00  |               | 2,451,22   |   |
| Sweeping                             |       | $                      | 2,328.00   |               | 328.33     |   |
| Snow Removal                         |       | $                      | 11,000.00  |               | 1,551.40   |   |
| Steam Cleaning                       |       | $                      | —     |               | —     |   |
| Dayporter/Janitorial                 |       | $                      | —     |               | —     |   |
| HVAC                                 |       | $                      | 12,300.00  |               | 1,734.75   |   |
| Exterior Repairs                     |       | $                      | 3,640.00   |               | 513.37     |   |
| Security Guard  Service              |       | $                      | —     |               | —     |   |
| Lighting  Maintenance & Repair   |       | $                      | —     |               | —     |   |
| Parking Lot  & Common Area       |       | $                      | 1,320.00   |               | 186.17     |   |
| Fire Alarm  Monitoring               |       | $                      | 5,724.00   |               | 807.29     |   |
| Building R/M                         |       | $                      | 9,808.00   |               | 1,394.80   |   |
| Electricity                          |       | $                      | 1,980.00   |               | 279.25     |   |
| Water-Irrigation                     |       | $                      | —     |               | —     |   |
| Water-Buildings                      |       | $                      | 9,480.00   |               | 1,337.03   |   |
| Trash Disposal                       |       | $                      | 6,480.00   |               | 913.92     |   |
| Sewar                                |       | $                      | —     |               | —     |   |
| **SUB-TOTAL  EXPENSES:**             |       | $                      | 81,238.00  |               | $          | 11,457.53 |   |
| Administrative  Fee                  |       | $                      | 15,884.00  |               | 2,237.40   |   |
| Management  Fee/Payroll Reimburser   |       | $                      | 22,553.71  |               | 3,180.90   |   |
| Property Taxes                       |       | $                      | 151,452.50 |               | 21,380.34  |   |
| Insurance-Building  & Liability  |       | $                      | 12,502.50  |               | 1,763.31   |   |
| **SUB-TOTAL  CAM:**                  |       | $                      | 283,610.71 |               | $          | 39,999.45 |   |
| **DAYS IN  YEAR:**                   |       |                   |       | 365                |       |
| **DAYS\OCCUPANCY:**                  |       |                   |       | 319                |       |
| **PRORATION:**                       |       |                   |       | 34,999.55          |       |
|                                 |       |                   |       |               |       |
| Monthly Estimate  - CAM              |       |                   |       | 1,406.32           |       |
| Monthly Estimate  - INS              |       |                   |       | 146.94             |       |
| Monthly Estimate  - TAX              |       |                   |       | 1,780.03           |       |
| Total Monthly  Charges               |       |                   |       | 3,333.29           |       |
|                                 |       |                   |       |               |       |
| PSF:                                 |       |                   |       | 0.37               |       |
|                                      |            |                        |            |                    |            |  |  |  |

 

----

 

ARAPAHOE BUSINESSPARK I LEASE AGREEMENT

 

between

 

WKB VALUEPARTNERS,

 

a Delaware limitedpartnership

 

as Landlord

 

and

 

MCFSA, LTD., aTexas limited partnership

 

d/b/a MetroplexControl Systems

 

as Tenant

 

----

 

TABLE OF CONTENTS

 
| 1.  | Definitions; Basic Lease Information                         | 1  |
|-----|--------------------------------------------------------------|----|
| 2.  | Premises and Term                                            | 3  |
| 3.  | Monthly Base Rent and Security Deposit                       | 4  |
| 4.  | Use; Compliance with Laws and Rules and  Regulations    | 4  |
| 5.  | Operating Expenses; Payment of Tenant’s Pro Rata  Share | 6  |
| 6.  | Landlord’s Repairs                                      | 8  |
| 7.  | Tenant’s Repairs                                        | 9  |
| 8.  | Alterations                                                  | 10 |
| 9.  | Signs                                                        | 12 |
| 10. | Landlord’s Right of Access; Inspection                  | 12 |
| 11. | Utilities                                                    | 13 |
| 12. | Assignment and Subletting                                    | 13 |
| 13. | Insurance                                                    | 14 |
| 14. | Damage and Destruction                                       | 17 |
| 15. | Condemnation                                                 | 18 |
| 16. | Holding Over                                                 | 18 |
| 17. | Quiet Enjoyment                                              | 19 |
| 18. | Events of Default                                            | 19 |
| 19. | Remedies                                                     | 20 |
| 20. | Bankruptcy or Insolvency; Assumption; Adequate  Protection   | 23 |
| 21. | Subordination and Attornment                                 | 26 |
| 22. | Mechanic’s Liens and Tenant’s Taxes                | 26 |
| 23. | Authorities for Action and Notice                            | 28 |
| 24. | Estoppel Certificates                                        | 28 |
| 25. | Landlord’s Review of Tenant’s Documents            | 29 |
| 26. | Miscellaneous                                                | 29 |

 

i

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**ARAPAIIOEBUSINESS PARK I LEASE AGREEMENT**

 

THIS ARAPAHOE BUSINESS PARK I LEASE AGREEMENT (“Lease”)is entered into by Landlord and Tenant (as defined in Section 1). Inconsideration of the mutual covenants hereinafter set forth, Landlord andTenant agree as follows: 

 

1.                                       **Definitions; Basic Lease Information.**  Inaddition to the terms defined elsewhere in this Lease, the following terms, asused in this Lease, have the following meanings:

 

(a)                                  LEASEDATE: November 19, 2002

 

(b)                                 TENANT:  MCFSA,LTD., a Texas limited partnership

 

(c)                                  TENANT’STRADE NAME:  Metroplex Control Systems

 

(d)                                 TENANT’SADDRESS:  Premises and 12903 Delivery Drive, San Antonio, Texas 78247

 

(e)                                  LANDLORD:  WKBVALUE PARTNERS, a Delaware limited partnership.

 

(f)                                    LANDLORD’SADDRESS:  4343 Von Karman Avenue, Newport Beach, California 92660.

 

(g)                                 COMMENCEMENTDATE:  January 1,2003 (as the same may be extended pursuant to Section 2).

 

(h)                                 EXPIRATIONDATE:  August 31, 2008 (as the same may be extended pursuant to Section 2).

 

(i)                                     SECURITYDEPOSIT:  $4,075.82

 

(j)                                     MONTHLYBASE RENT:  Subject to adjustment pursuant to section 3(a):

 

 
| **Calendar Period**                                                                    | ** ** | **Monthly Base Rent** | ** **     |
|----------------------------------------------------------------------------------------|------------|-----------------------|----------------|
| ** **                                                                             | ** ** | ** **            | ** **     |
| January 1, 2003 through August 31, 2004 inclusive   |       | $                     |  3,890.00 |   |
| September 1, 2004 through August 31, 2005 inclusive |       | $                     |  4,006.70 |   |
| September 1,  2005 through August 31, 2006 inclusive                         |       | $                     | 4,126.90       |   |
| September 1,  2006 through August 31, 2007 inclusive                         |       | $                     | 4,250.71       |   |
| September 1,  2007 through August 31, 2008 inclusive                         |       | $                     | 4,378.23       |   |

 

(k)                                  RENTABLEAREA OF PREMISES:  7,780 square feet.

 

(l)                                     RENTABLEAREA OF PROJECT:  55,163 square feet.

 

(m)                               TENANTSPRO RATA SHARE:  14.10 percent.

 

1

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(n)                                 PERMITTEDUSE OF PREMISES:  General office and warehouse use.

 
| (o)                                 BROKER: | Frederick Ross Company  (“Landlord’s Broker”)

Meridian Commercial  Real Estate Associates, LLC  (“Tenant’s Broker”) |
|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------------------------------------------------------------------|

 

(p)                                 GUARANTORAND RELATIONSHIP TO TENANT:   None.

 

(q)                                 PREMISES:  Thepremises shown on Exhibit A attached hereto and made a part hereofarid known as 7388 South Revere Parkway, Units 601 through 604, Centennial,Colorado 80112. The area of the Premises and the Project have been determinedby Landlord and are conclusive in the absence of fraud or manifest error. ThePremises do not include, and Landlord reserves, the exterior walls and roof ofthe Premises, the land beneath the Premises, and the pipes and ducts, conduits,wires, fixtures and equipment above the suspended ceiling or structuralelements which serve the Premises or Project; however, Landlord has the rightto enter the Premises in order to install, inspect, maintain, use, repair andreplace those areas and items described in the preceding clause.

 

(r)                                    PROJECT:  Thosecertain office and light industrial buildings with an address of 7388 SouthRevere Parkway, Centennial, CO 80112, commonly known as “Arapahoe Business ParkI,” located on the real property described on Exhibit B attachedhereto and made a part hereof (the “Land”), and all improvements built on theLand including without limitation the parking lot, walkways, driveways, fencesand landscaping.

 

(s)                                  ADDITIONALRENT:  Any amounts, other than Monthly Base Rent, which Tenant isrequired or agrees to pay hereunder, including but not limited to OperatingExpenses (as hereinafter defined), late charges, reimbursements, repairs andattorneys’ fees and costs incurred by Landlord in enforcing this Lease.

 

(t)                                    RENT:  TheMonthly Base Rent and Additional Rent.

 

(u)                                 ESTIMATEDOPERATING EXPENSES:  Operating Expenses for calendar year 2002, arecurrently estimated at $4.64 per square foot. Tenant acknowledges and agreesthat such amount is only an estimate, based on currently available informationand that Operating Expenses will most likely increase for the calendar year2003.

 

The following addenda andexhibits are attached to this Lease and made a part hereof:

 

Addendum

Exhibit A - Premises

Exhibit B - Legal Description of the Project

Exhibit C - Estoppel and Commencement DateCertificate

 

2

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Exhibit D - Guaranty of Lease

Exhibit E - Rules and Regulations

Exhibit F - Work Letter Agreement

Exhibit G - Tenant Estoppel Certificate

 

**2.**                                      **Premises and Term.**

 

(a)                                  GrantingClause.  In consideration of the obligation of Tenant to payRent, and in consideration of the other covenants, representations andwarranties of Tenant set forth in this Lease, Landlord leases to Tenant, and,in consideration of Landlord’s covenants set forth in this Lease, Tenant leasesfrom Landlord the Premises, for a term commencing on the Commencement Date andending on the Expiration Date (the “Primary Lease Term”). The Primary LeaseTerm as extended by any Extended Term provided for in the Addendum attachedhereto is hereinafter referred to as the “Term.”

 

(b)                                 Deliveryof Premises.  Except to the extent modified by Landlord’s expressassumption of construction obligations, if any, in Exhibit Fattached to this lease, the Premises is being leased “AS IS,” with Tenantaccepting all defects, if any; and Landlord makes no warranty of any kind,express or implied, with respect to the Premises (without limitation, Landlordmakes no warranty as the habitability, fitness or suitability of the Premisesfor a particular purpose nor as to the absence of any toxic or otherwisehazardous substances). This Section 2(b) is subject to any contraryrequirements under applicable law; however, in this regard Tenant acknowledgesthat it has been given the opportunity to inspect the Premises and to havequalified experts inspect the Premises prior to the execution of this lease.Notwithstanding the date set forth in Section 1, the Commencement Datewill be the date upon which Landlord notifies Tenant in writing that thePremises are ready for occupancy by Tenant. Taking of possession of thePremises by Tenant will conclusively establish that the Premises are completeand in good and satisfactory condition, as of when possession is so taken.After such Commencement Date, Tenant will, upon demand, execute and deliver toLandlord an Estoppel and Commencement Date Certificate in the form of Exhibit Cattached hereto and made a part hereof.

 

(c)                                  DelayedPossession.  This Lease shall not be void or voidable nor shallLandlord be liable to Tenant for any loss or damage resulting from any delay indelivering possession of the Premises to Tenant. If such delay is not caused byor attributable to Tenant, its servants, agents or independent contractors, noRent shall be payable by Tenant until Landlord can so deliver possession of allthe Premises. If Landlord is delayed in delivering possession of the Premisesby any delay, interference or hindrance of such work by Tenant, Tenant’scontractors or any of their employees or agents, or by any changes in such workrequested by Tenant and agreed to by Landlord or by Tenant’s failure to timelyand properly perform its obligations (if any) imposed pursuant to the WorkLetter Agreement attached hereto as Exhibit F, the Premises shallbe conclusively deemed delivered to Tenant on the date on which the same wouldhave occurred in the absence of such delay, the Commencement Date shall bedeemed such date, and the Expiration Date shall be adjusted to a date which isthe last day of the month sixty-eight (68) months after the Commencement Date.

 

3

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**3.**                                      **Monthly Base Rent and Security Deposit.**

 

(a)                                  MonthlyBase Rent:  Tenant agrees to pay to Landlord the Monthly BaseRent for the Premises, in advance, without demand, deduction or set off, forthe entire Term of this Lease. One installment of Monthly Base Rent will be dueand payable on the Commencement Date and a like installment of Monthly BaseRent will be due and payable on or before the first day of each calendar monthsucceeding the Commencement Date; provided that, the Monthly Base Rent for anyfractional calendar month at the commencement or end of the Lease term will beprorated, based upon the number of days the Premises are or could be occupiedby Tenant. Notwithstanding the foregoing, so long as no event of default hasoccurred under this Lease, the following Rent abatements shall occur(collectively, “Rent Abatement”): (1) Tenant’s Monthly Base Rent shall beabated for a period of eight (8) months from and after the CommencementDate, anticipated to be January 1, 2003 through August 31, 2003; and (2) theOperating Expenses due from Tenant as Additional Rent pursuant to Paragraph5(a), below, shall be abated for a period of two (2) months from and afterthe Commencement Date, anticipated to be January 1, 2003 through February 28,2003. If Tenant commits an event of default under this Lease, then: (i) Tenantshall immediately pay to Landlord upon demand a sum equal to the total amountof Rent Abatement used by Tenant as of the date of the occurrence of such eventof default, and (ii) all Rent Abatement that has not been used by Tenantas of the date of the occurrence of such event of default shall automaticallyterminate and become null and void, and Tenant shall thereafter pay all BaseMonthly Rent and Additional Rent when due under this Lease, without regard tothe rental abatement provisions of this Lease.

 

(b)                                 SecurityDeposit:  Tenant shall deposit with Landlord on the Lease Date,and shall maintain on deposit with Landlord throughout the term hereof, theSecurity Deposit, which will be held by Landlord, without obligation for oraccrual of interest, as security for the performance of Tenant’s covenants andobligations under this Lease. Landlord shall have the right to commingle suchSecurity Deposit with other funds of Landlord. It is expressly understood andagreed that such Security Deposit is not an advance rental deposit or a measureof Landlord’s damages in case of Tenant’s default. Upon any default by Tenant,Landlord may, from time to time, without prejudice to or waiver of any otherremedy provided in this Lease or provided by law, use such Security Deposit tothe extent necessary to make good any arrearage of Rent or other payments dueLandlord, and any other damage, injury, expense or liability caused by suchdefault; and Tenant will pay to Landlord on demand the amount so applied inorder to restore the Security Deposit to its original amount. Any unutilizedportion of such Security Deposit will be returned by Landlord to Tenant notlater than sixty (60) days after termination of this Lease, upon the fullperformance of this Lease by Tenant and surrender of the Premises by Tenant toLandlord. Landlord may deliver the Security Deposit (or such unapplied portionthereof as may be on deposit) to any purchaser of Landlord’s interest in thePremises, and thereupon Landlord shall be discharged from any obligation orliability with respect to the Security Deposit.

 

**4.**                                      **Use; Compliance with Laws and Rules andRegulations.**

 

(a)                                  Use.  ThePremises will be used only for the purpose set forth in Section 1(n) andfor no other purpose. Outside storage, including without limitation, trucks andother

 

4

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vehicles and the washingof such vehicles at any time, is prohibited without Landlord’s prior writtenconsent.

 

(b)                                 Compliancewith Laws.  Tenant will at its sole cost and expense obtain anyand all licenses and permits necessary for the Permitted Use of the Premises.Tenant shall continuously and promptly, throughout the Term of this Lease,comply with all governmental laws, ordinances and regulations applicable to theuse of the Premises, or the operation of Tenant’s business (including, withoutlimitation, the Americans With Disabilities Act of 1990, as amended from timeto time), those Rules and Regulations Set forth on Exhibit Eattached hereto and made a part hereof, as the same may be reasonably modifiedor propounded by Landlord from time to time, and with all governmental ordersand directives for the correction, prevention and abatement of nuisances in orupon, or connected with, the Premises, all at Tenant’s sole expense. Tenantwill not permit any objectionable or unpleasant odors, smoke, dust, gas, noiseor vibrations to emanate from the Premises, nor take any other action whichwould constitute a nuisance or would disturb or endanger any other tenants ofthe Project or unreasonably interfere with their use of their respectivepremises, nor impair, in the opinion of Landlord, the appearance, character orreputation of the Project. Without Landlord’s prior written consent, Tenantwill not receive, store or otherwise handle any product, material ormerchandise which is noxious, explosive or highly inflammable. Tenant will notpermit the Premises to be used for any purpose or in any manner (includingwithout limitation any method of storage) which would render the insurance onthe Premises or Project void or the insurance risk more hazardous or cause theState Board of Insurance or other insurance authority to disallow any sprinklercredits. If any increase in the fire and extended coverage insurance premiumspaid by Landlord for the Project is caused by Tenant’s use and occupancy of thePremises, or if Tenant vacates the Premises and causes an increase in suchPremiums, then Tenant will pay as Additional Rent, upon demand, the amount ofsuch increase to Landlord.

 

(c)                                  HazardousSubstances.  Tenant’s use and occupancy of the Premises shall inno manner or way result in the direct or indirect violation of any local, stateor federal law, rule, regulation, ordinance, code, policy or rule ofcommon law now or hereafter in effect and in each case as amended, and anyjudicial or administrative interpretation thereof, pertaining to environmentalregulation, contamination or clean-up (collectively, “Environmental Laws”),including by way of example and without limitation the ComprehensiveEnvironmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §§ 9601et seq., the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 etseq., the Hazardous Materials Transportation Act, 49 U.S.C. §§ 1801 etseq., the Clean Water Act, 33 U.S.C. §§ 1251 etseq.,theToxic Substances Control Act, 15 U.S.C. §§ 2601 etseq., theClean Air Act, 42 U.S.C. §§ 7401 etseq., the Safe Drinking WaterAct, 42 U.S.C. §§ 300f etseq., the Atomic Energy Act, 42 U.S.C.§§ 2011 etseq., the Federal Insecticide, Fungicide and RodenticideAct, 7 U.S.C. §§ 136 etseq., the Occupational Safety and HealthAct, 29 U.S.C. §§ 651 etseq., and any similar statutes of theState of Colorado. Further, Tenant’s use and occupancy of the Premises shallnot include the use, handling, transportation or storage of any hazardous ortoxic substances, wastes, materials, pollutants or contaminants (including,without limitation, asbestos or raw materials which include hazardousconstituents) or any other substances or materials which are included under orregulated by Environmental Laws (collectively, “Hazardous Substances”). Tenantshall keep or cause the Premises to be kept free from Hazardous Substances andin compliance with all Environmental Laws, shall expressly prohibit use,handling, storage, manufacture, transfer

 

5

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and disposal of HazardousSubstances on or about the Premises and shall promptly notify Landlord ifTenant shall become aware of any Hazardous Substances on or about the Premisesor if Tenant shall become aware that the Premises are in direct or indirectviolation of any Environmental Laws. Tenant shall remove such HazardousSubstances or cure such violations, as applicable, promptly after Tenantbecomes aware of same, at Tenant’s sole expense and in the event Tenant failsto do so, Landlord may cause the Premises to be freed from any HazardousSubstances or otherwise brought into conformance with Environmental Laws andany cost of same shall be Additional Rent payable hereunder immediately upondemand from Landlord. Tenant hereby grants to Landlord and its agents andemployees access to the Premises and a license to remove any items deemed byLandlord to be Hazardous Substances and to do all things Landlord shall deemnecessary to bring the Premises in conformance with Environmental Laws. Tenanthereby agrees to indemnify Landlord and hold Landlord and its successors,assigns, employees, agents, officers, directors, partners, and attorneysharmless from and against any and all expenses, damages, suits, liabilities andcosts (including without limitation attorney’s fees and consequential damages)suffered or incurred by Landlord or any of such parties as a result of the use,handling, storage, transportation, treatment or disposal of HazardousSubstances on or about the Premises or the violation of Environmental Laws (aswell as any other laws, ordinances, rules or regulations as set forth insubsection (a) of this Section 4), even if such damages or costsshall be suffered or incurred after termination or earlier expiration of thisLease. Such indemnity shall expressly survive termination of this Lease,whether by lapse of time or otherwise.

 

**5.**                                      **Operating Expenses; Payment of Tenant’s Pro RataShare.**

 

(a)                                  Paymentof Tenant’s Pro Rata Share. In addition to the Monthly Base Rent, Tenantwill pay the Landlord on the first day of each calendar month during the Termof this Lease, as Additional Rent, one-twelfth (1/12) of Tenant’s Pro RataShare of Estimated Operating Expenses paid, payable, or incurred during thesubject calendar year or partial calendar year; provided, however, that suchpayments shall be abated for two (2) months from and after theCommencement Date (anticipated to be January 1, 2003, through February 28,2003) in accordance with Section 3(a), above, so long as no event ofdefault by Tenant has occurred under this Lease. The Estimated OperatingExpenses are subject to revision according to the provisions of this Section 5(a).During December of each calendar year or as soon thereafter aspracticable, Landlord will give Tenant written notice of Landlord’s reasonableestimate of the amounts payable under this Section 5 for the ensuingcalendar year (“New Estimate”). On or before the first day of each calendarmonth during the ensuing calendar year, Tenant will pay Landlord one-twelfth(1/12) of such reasonably estimated amount; provided, however, if such noticeis not given in December, Tenant will continue to pay its Pro Rata Share on thebasis of the prior year’s Estimated Operating Expenses until the calendar monthafter such notice is given. In the calendar month in which Tenant first paysits Pro Rata Share in accordance with Landlord’s New Estimate (andsimultaneously therewith), Tenant will also pay Landlord Tenant’s Pro RataShare of any additional amounts payable under the New Estimate, for eachcalendar month which has elapsed since December of the prior year(s). Ifat any time or times it appears to Landlord that the amounts payable under thisSection 5 for the current calendar year will vary from the EstimatedOperating Expenses or New Estimate, Landlord may, by written notice to Tenant,revise Landlord’s estimate for such calendar year and subsequent payments byTenant for such calendar year will be based upon Landlord’s revised estimate,

 

6

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including any amountsrequired to make up for deficiencies in payments made by Tenant in priorcalendar mantis.

 

(b)                                 Statementof Operating Expenses. Unless delayed by causes beyond Landlord’sreasonable control, Landlord shall deliver to Tenant within one hundred twenty(120) days after the end of each calendar year a written statement (the “Statement”)setting out in reasonable detail the amount of Tenant’s Operating Expenses forthe preceding calendar year or partial calendar year. If the aggregate ofmonthly installments of Tenant’s Operating Expenses actually paid by Tenant toLandlord during such calendar year or partial calendar year differs from theamount of Tenant’s Operating Expenses payable for such calendar year or partialcalendar year under this Section 5, as indicated in the Statement, then,as the case may be, Tenant shall pay the difference to Landlord or Landlordshall issue a credit to Tenant against the Rent remaining to be paid hereunderfor the difference, or if no Rent then remains to be paid, refund thedifference to Tenant, without interest, within thirty (30) days after the dateof delivery of the Statement. Landlord’s obligation to make any refund pursuantto this Section 5(b) shall survive the expiration or earliertermination of this Lease.

 

(c)                                  OperatingExpenses Definition.  The term “Operating Expenses” means andincludes all costs and expenses of any kind or nature incurred by Landlord withrespect to the ownership, maintenance, repair and operation of the Project,including, by way of example and without limitation, supply costs; maintenance,replacement and repair costs; the costs of water, sewer, gas, electrical,security, trash, snow removal, cleaning, landscaping and painting services;maintenance, repair and replacement of heating, ventilation, and airconditioning (“HVAC”), plumbing, electrical, mechanical, roof, structural orlike systems or components; any common area costs and expenses (includingparking areas and walkways); labor Costs incurred in the operation andmaintenance of the Project, including wages and other payments; costs toLandlord for workmen’s compensation and disability insurance, payroll taxes andwelfare and other fringe benefits; reasonable management fees in an amountcustomary for properties similar to the Project; an administrative fee equal toten percent (10%) of Operating Expenses; legal, accounting, inspection andconsultation fees incurred in connection with the Project; amounts paid tocontractors and subcontractors for work or services performed in connectionwith the operation and maintenance of the Project (including common areas,walkways and parking areas); all “real property taxes” and assessments (whethergeneral or special, and as further defined below), personal property taxes andgovernmental charges of any kind and nature whatsoever including assessmentsdue to deed restrictions or owners’ associations which accrue against theProject or any items of personal property utilized in the maintenance, repairor operation of the Project during the Term of this Lease; all insuranceincluding, by way of example and without limitation, public liability insuranceand fire and extended coverage insurance with respect to the Project and anyrental insurance and all risk insurance (should Landlord decide to carry thesame) (but Tenant shall have no interest in such insurance or the proceedsthereof); any expense attributable to costs incurred by Landlord for anycapital improvements to the extent the same are incurred by Landlord to eithercomply with changes in any laws, ordinances or regulations applicable to theProject or to reduce Operating Expenses which costs shall be amortized over theuseful life of the capital improvement; and any other costs, charges andexpenses which under generally accepted accounting principles would be regardedas maintenance and operating expenses. The term Operating Expenses does notinclude repairs, restoration or other work occasioned by fire, windstorm orother casualty to the extent of

 

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net insurance proceedsactually received by Landlord, income and franchise taxes of Landlord, expensesincurred in leasing to or procuring of tenants, leasing commissions,advertising expenses, expenses for the renovation of space for new tenants(except to the extent the same are incurred by Landlord to either comply withchanges in any laws, ordinances or regulations applicable to the Project or toreduce Operating Expenses), nor interest or principal payments on any mortgageor other indebtedness of Landlord. As used in this paragraph “real propertytaxes” and assessments includes ad valorem taxes, general and specialassessments, parking surcharges, and any tax or charge for governmentalservices charged against the Premises or that are attributed to the transfer ortransaction directly or indirectly represented by this Lease, by any subleaseor assignment hereunder or by other leases in the Project, or by any documentto which Tenant is a party creating or transferring (or reflecting the creationor transfer of) any interest or estate in the Premises and any tax or chargewhich replaces or is in addition to any of such above-described “real estatetaxes.”

 

(d)                                 Ifat any time during the Term of this Lease, the present method of taxation ischanged so that in lieu of the whole or any part of any taxes, assessments orgovernmental charges levied, assessed or imposed on real estate and theimprovements on such real estate, there is levied, assessed or imposed onLandlord a capital levy or other tax directly on the rents received from theProject or a franchise tax, assessment, levy or charge measured by or based, inwhole or in part, upon such rent for the present or any future building or buildingson the Project, then all such taxes, assessments, levies or charges, or thepart thereof so measured or based, will be deemed to be included within theterms “Operating Expenses” and “real property taxes” (as used in subsection (b)above) for the purposes of this Section 5.

 

(e)                                  Tenantmay, upon reasonable notice, and at a time reasonably convenient to Landlordaudit Landlord’s books relevant to the Additional Rent due under this Section 5.Tenant agrees to pay all costs associated with or resulting from such audit,including reimbursement to Landlord for any costs reasonably incurred byLandlord with respect thereto.

 

(f)                                    Paymentsto be made pursuant to this Section 5 with respect to the calendar year inwhich this Lease commences or terminates (other than in the event of Tenant’sdefault) will be prorated based on the number of calendar months, or portionsthereof, that Tenant occupied or could have occupied the Premises.

 

**6.**                                      **LandLord’s Repairs.**  Fora period of six (6) months from and after the Commencement Date, Landlordwill, at Landlord’s expense (subject to Tenant’s payment of Operating Expensesin accordance with Section 5, above), keep and maintain all HVAC systems,fixtures, and equipment serving the Premises in good, working order; provided, however,that Landlord shall not be responsible for repairs or replacements necessitatedby Tenant’s negligence or willful misconduct or associated with HVAC systems,fixtures or equipment, if any, installed by Tenant in accordance with Section 8,below. After such six (6) month period, Tenant shall maintain, repair, andreplace the HVAC systems, fixtures and equipment serving the Premises inaccordance with Section 7, below. Except as expressly set forth in theimmediately preceding sentences, Landlord will at its expense maintain only theroof, foundation and the structural soundness of the exterior walls of thebuilding or buildings in which the Premises are located in good repair,reasonable wear and tear excepted. In addition to Tenant’s repair obligationsunder Section 7, Tenant will repair and pay for any damage caused to theroof, foundation or exterior

 

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walls of the Premises orProject by Tenant, or Tenant’s employees, agents or invitees, or caused byTenant’s default under this Lease. The term “walls” as used in this Section 6does not include windows, glass or plate glass, doors, special Store fronts oroffice entryways. Tenant will immediately give Landlord written notice ofdefect or need for repairs, after which Landlord will have a reasonableopportunity to effect such repairs or cure such defect. Landlord’s liabilitywith respect to any defects, repairs or maintenance for which Landlord isresponsible under any of the provisions of this Lease will be limited to thecost of such repairs or maintenance or the curing of such defect.

 

**7.**                                      **Tenant’s Repairs.**

 

(a)                                  Tenantwill, at its own cost and expense, keep and maintain all parts of the Premisesin good condition, promptly making all necessary repairs and replacements,including but not limited to, windows, glass and plate glass, doors, anyspecial office entry, interior walls and finish work, floor coverings, heatingand air conditioning systems and fixtures (subject to Landlord’s performance ofits obligations under Section 6, above, during the first six months of theTerm), dock boards, truck doors, dock bumpers, paving, plumbing work andfixtures, termite and pest extermination, regular removal of trash and debris,and keeping the whole of the Premises in a clean and sanitary condition andappearance. Tenant will not be obligated to repair any damage to the Premisescaused by fire, tornado or other casualty actually covered by the insurance tobe maintained by Landlord pursuant to Section 13(a) below, exceptthat Tenant will be obligated to repair all wind damage to glass.

 

(b)                                 Tenantwill not damage any demising wall or disturb the integrity and support providedby any demising wall and will, at its sole cost and expense, promptly repairany damage or injury to any demising wall caused by Tenant or its employees,agents, customers, invitees or licensees.

 

(c)                                  Tenantand its employees, agents, customers, invitees and licensees will have theright to use the parking areas of the Project, if any, as designated byLandlord in writing, subject to such reasonable rules and regulations asLandlord may from time to time prescribe, in common with the other tenants ofthe Project. Landlord will not be responsible for enforcing Tenant’s parkingrights against any third parties.

 

(d)                                 Commencingon the date that is six (6) months after the Commencement Date (the “TenantHVAC Maintenance Date”) Tenant will, at its own cost and expense, keep andmaintain all HVAC systems and equipment/fixtures serving or located in thePremises in good condition, promptly making all necessary repairs. Tenantshall. at its own cost and expense, enter into a regularly scheduled preventivemaintenance/service contract with a maintenance contractor for such servicingof all HVAC systems and equipment serving the Premises. The maintenancecontractor and the contract must be approved by Landlord. The service contractmust include all services suggested/recommended by the equipment manufacturerwithin the operation/maintenance manual or otherwise and must become effective(and a copy of such contract delivered to Landlord) within thirty (30) days ofthe Tenant HVAC Maintenance Date. If Tenant fails to perform its obligations inthis subsection (d), Landlord may obtain the service contract on behalf ofTenant and charge Tenant, as Additional Rent, the cost of the contract andLandlord’s costs and expenses in procuring the contract.

 

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(e)                                  Tenantagrees that no washing of any type (other than reasonable restroom or kitchenwashing) will take place in the Premises, including the truck apron and parkingareas.

 

(f)                                    IfTenant fails to perform its repair, replacement or maintenance obligations asset forth in this Section 7, Landlord may, without terminating this Lease,enter upon the Premises, with force if necessary, without being liable forprosecution of any claim for damages, without being deemed guilty of any mannerof trespass and without prejudice to any other rights or remedies, and performTenant’s obligations under this Section 7, all at Tenant’s cost andexpense. Tenant agrees to reimburse Landlord on demand for any expenses whichLandlord may incur in effecting compliance with the Tenant’s obligations underthis Section 7; further, Tenant agrees that Landlord shall not be liablefor any damages resulting to Tenant from effecting compliance with Tenant’sobligations under this Section 7, whether caused by the negligence ofLandlord, or otherwise.

 

(g)                                 Tenantexpressly acknowledges and agrees that Landlord has and does demise thePremises to Tenant without any representation, warranty or covenant on the partof Landlord as to the compliance of either the Premises or the Project or anyportion thereof with the provisions of the Americans with Disabilities Act of1990, as the same may have been amended from time to time (the “Act”). Tenantexpressly acknowledges and agrees that it shall, at its own cost and expense,cause the Premises and all appurtenances, including by way of illustration andnot by way of limitation, all access ways, entryways, toilets and bathroomfacilities, washing facilities, hallways, ramps, staircases and other itemssubject to the Act to comply with the Act. Further, Tenant agrees that if itsuse or occupancy of the Premises necessitates that Landlord make changes,modifications or incur additional expenses with respect to the parking areas,walkways or other common areas of the Project in order that the Project or suchcommon areas comply with the Act, all of such incurred costs, modifications oralterations shall be done at Tenant’s sole cost and expense and Tenant shallpay all of same to Landlord on demand as Additional Rent. Notwithstanding theforegoing or any other statement in this Lease to the contrary, if in connectionwith the completion of the Leasehold Improvements (defined in the Work Letterattached to this Lease as Exhibit F) any governmental authority withjurisdiction over the Project requires alterations to the Premises or thecommon areas of the Project in order to comply with the Act (“ActImprovements”), Landlord shall comply with such requirements and make such ActImprovements at Landlord’s cost and expense.

 

**8.**                                      **Alterations.**  Tenant willnot make any alterations, additions or improvements to the Premises (includingbut not limited to roof and wall penetrations) except in accordance with Exhibit Fattached hereto and with the prior written consent of Landlord, which consentshall not be unreasonably withheld. Tenant may, without the consent ofLandlord, but at its own cost and expense, and in a good and workmanlikemanner, erect such shelves, bins, machinery and trade fixtures as it may deemadvisable, without altering the basic character of the Premises and withoutoverloading or damaging the building or buildings in which the Premises arelocated or structural portions of the improvements, and in each case complyingwith all applicable governmental laws, ordinances, regulations and otherrequirements. All alterations, additions, improvements and partitions erectedby Tenant, including, without limitation, any access control, intrusiondetection, paging, closed circuit television, fire alarm or similar systems(collectively, “Tenant Alterations”) will be and remain the property of Tenantduring the Term of this Lease and Tenant will, unless Landlord otherwiseelects, remove all Tenant Alterations and restore the

 

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Premises and the Projectto their original condition by the date of termination of this Lease or uponearlier vacating of the Premises; provided, however, that if Landlord so electsprior to termination of this Lease or upon earlier vacating of the Premises,such Tenant Alterations will become the property of Landlord as of the date oftermination of this Lease and will be surrendered to the Landlord with thePremises. Not withstanding the foregoing, if Tenant, prior to making any TenantAlterations, provides Landlord with a written request, asking whether Landlordwill require that the specific Tenant Alterations described in such notice besurrendered to the Landlord at the end of the Term, Landlord will, withinfifteen (15) days of receipt of such notice, provide Tenant with Landlord’swritten election as to whether Landlord will require such surrender, whichelection shall govern the disposition of such Tenant Alterations at the end ofthe Term. If Landlord fails to provide Tenant with Landlord’s written responsewithin such fifteen (15) day period, Landlord shall be deemed to have electedthat Tenant remove such Tenant Alterations at the end of the Term and restorethe Premises in accordance with this Section 8. All shelves, bins,machinery and trade fixtures installed by Tenant shall be removed by Tenantprior to the termination of this Lease, and must be removed by the date oftermination of this Lease or upon the earlier vacating of the Premises ifrequired by Landlord, upon any such removal Tenant will restore the Premises toits original condition. All such removals and restoration will be accomplishedin a good and workmanlike manner so as not to damage the primary structure orstructural components of the Project.

 

Subject to Tenant’s compliance with the terms of thisSection 8, including, without limitation, the requirements governingTenant’s Work (as defined below), Landlord consents to the installation, byTenant, at Tenant’s sole cost and expense, of the following Tenant Alterations:(a) security systems; and (b) card access control systems. Landlord’sconsent to Tenant’s installation of such systems does not imply any obligationon the part of Landlord to supply security to the Premises or protect Tenantfrom the acts of any third parties, which obligations Landlord has and doesexpressly disclaim. Landlord shall have no liability to Tenant, or any of itsofficers, directors, agents, employees, guests, or invitees arising from theinstallation or use of such security systems or card access control systems.Tenant shall indemnify, hold harmless, and defend (with counsel acceptable toLandlord) Landlord from and against any and all claims arising from, or in anyway related to, such systems installed by Tenant. Any security systemsinstalled by Tenant pursuant to this Section 8 shall not prevent Landlord’saccess under Section 10 of this lease and Tenant shall provide to Landlordall access codes or card keys necessary to assure such access.

 

In addition to the other terms and conditions of this Section 8,and without limiting the applicability of any other provision of this Lease,the following shall apply to all work performed in the Premises by Tenant,including, without limitation, the performance of any Tenant Alterations (“Tenant’sWork”): (a) Tenant will give Landlord at least thirty (30) days priorwritten notice in its request for consent to make any Tenant Alterations or ofits intent to erect shelves, bins, machinery or trade fixtures in the Premises,together with copies of drawings, plans, or specifications for any proposedTenant Alterations, sufficient to obtain a building permit, and ready forLandlord’s consideration and final approval; (b) Tenant shall not commenceany Tenant’s Work until Landlord has approved in writing Tenant’s drawings,plans, or specifications and shall reimburse Landlord for any costs incurred byLandlord in connection with its review of such drawings, plans, andspecifications; (c) Tenant shall secure all necessary licenses,inspections, and permits to be used in performing Tenant’s Work; (d) Tenant’sfinished

 

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work shall be subject toLandlord’s approval and acceptance; (e) all Tenant’s Work and TenantAlterations shall be at Tenant’s sole cost and expense and shall not damage thebuilding in which the Premises are located or any part thereof; (f) anyroof penetration shall be performed by Landlord’s roofer or, at Landlord’soption, by a bonded roofer approved in advance by Landlord; (g) all Tenant’sWork shall be performed in accordance with applicable governmental laws, rules,and regulations; and (h) Landlord shall have the right to approve anycontractor(s) by whom the Tenant’s Work is to be performed

 

No approval by Landlord of any drawings, plans, orspecifications that are prepared in conjunction with the construction of anyTenant Alterations in the Premises will constitute a representation or warrantyby Landlord as to the adequacy or sufficiency of such drawings, plans orspecifications, or the improvements to which they relate, far any use purposeor condition, including conformity to any applicable codes or laws, but suchapproval will merely be the consent of Landlord to the construction orinstallation of Tenant Alterations in the Premises, according to said drawings,plans, or specifications. Landlord shall be entitled to post notices on andabout the Premises with respect to Landlord’s non-liability for the payment ofthe Tenant’s Work as provided in the Colorado mechanic’s lien statutes andTenant shall not permit such notices to be defaced or removed. If Landlordapproves Tenant’s proposed contractor(s), prior to the commencement of anyTenant Work, Tenant shall deliver to Landlord certificates issued by insurancecompanies qualified to do business in the State of Colorado evidencing thatworker’s compensation, public liability insurance and property damageinsurance, all in amounts and with companies and on forms reasonablysatisfactory to Landlord, are in force and maintained by all of suchcontractor(s). Among other things, all such policies shall name Landlord as anadditional insured and shall provide that the same may not be canceled ormodified without thirty (30) days prior written notice to Landlord.

** **

**9.**                                      **Signs.**  At its costLandlord will: (a) remove any existing signage at the Project referring toany prior Tenant of the Premises; and (b) install Project- standarddirectional signs indicating the location of the Premises. Tenant, at its solecost and expense, upon the prior written approval of Landlord and subject toany applicable governmental laws, ordinances, regulations and other requirements,will have the right to install a single sign upon the Premises. Tenant willremove such sign upon the termination of this Lease. Such installation andremoval will be made in such manner as to avoid injury or defacement of thePremises and the Project, and Tenant will repair any injury or defacement,including without limitation discoloration, caused by such installation orremoval.

 

**10.**                               **Landlord’s Right of Access; Inspection.**  Landlordand Landlord’s agents and representatives will have the right to enter andinspect the Premises at any reasonable time during business hours, for thepurpose of ascertaining the condition of the Premises or in order to make suchrepairs as may be required or permitted to be made by Landlord under the termsof this Lease. During the six (6) month period that is prior to the end ofthe Term of this Lease, Landlord and Landlord’s agents and representatives willhave the right to enter the Premises at any reasonable time during businesshours for the purpose of showing the Premises and will have the right to erecton the Premises a suitable sign indicating that the Premises are available forlease. Tenant will give written notice to Landlord at least thirty (30) daysprior to vacating the Premises and will arrange to meet with Landlord for ajoint inspection of the Premises prior to vacating the Premises. In the eventTenant fails to give such notice or arrange such joint

 

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inspection, Landlord’s inspectionat or after Tenant’s vacating the Premises will be conclusive for purposes ofdetermining Tenant’s responsibility for repairs and restoration.

 

**11.**                               **Utilities.**  Landlordagrees to provide at its cost water, electricity and telephone serviceconnections into the Premises, but Tenant will pay for all water, gas, heat,light, power, telephone, sewer, sprinkler charges and other utilities andservices used on or from the Premises, together with any taxes, penalties orsurcharges and any maintenance charges for utilities. Tenant will furnish allelectric light bulbs and tubes. If such services are separately metered, Tenantwill pay all utility charges directly to the provider of the applicable utilityservices. If any such services are not separately metered to Tenant, Tenant willpay its Pro Rata Share of all such charges as part of the Operating Expenses.Landlord will not be liable for any interruption or failure of utility servicesto the Premises, unless such interruption or failure is caused by the grossnegligence of Landlord.

 

**12.**                               **Assignment and Subletting. ** Tenantwill not assign, sublet, transfer or encumber this Lease, or any interest inthis Lease or the Premises, by operation of law or otherwise, without the priorwritten consent of Landlord (which consent shall not be unreasonably withheld).Any attempted assignment, subletting, transfer or encumbrance by Tenant inviolation of the terms and covenants of this Section 12 will be a defaulthereunder and void ab initio. Fifty percent (50%) of all cash or other proceedsof any assignment, proceeds in excess of the Rent under this Lease in the caseof a subletting, and of all cash or other proceeds of any other transfer ofTenant’s interest in this Lease or the Premises will be paid to Landlord,whether such assignment, subletting or other transfer is consented to byLandlord or not. Tenant assigns all rights it might have or ever acquire insuch fifty percent (50%) of any cash or proceeds to Landlord. These covenantswill run with the land and the Premises and bind Tenant and Tenant’s heirs,executors, administrators, personal representatives, representatives in anybankruptcy proceeding, successors and assigns. No assignment, subletting orother transfer, whether consented to by Landlord or not, shall relieve Tenantof its primary liability under and with respect to all covenants contained inthis Lease. Consent of Landlord to any assignment, subletting or other transferof this Lease or the Premises shall not relieve Tenant from seeking consent toany subsequent assignment, subletting or transfer. No consent to any suchassignment, subletting, transfer or encumbrance of this Lease or any interestin this Lease or the Premises shall constitute a waiver of or with respect toany of Tenant’s obligations or covenants hereunder. Upon the occurrence of adefault or an event of default as defined or described in this Lease, if thePremises or any part of the Premises are then assigned or sublet, Landlord, inaddition to any other remedies provided in this Lease, or by law, or in equity,may at its option collect directly from such assignee or subtenant all rentsbecoming due to Tenant under such assignment or sublease and apply such rentagainst any sums due to Landlord from Tenant and no such collection will beconstrued to constitute a notation, waiver or a release of Tenant from thefurther performance of Tenant’s obligations under this Lease.

 

Notwithstanding the foregoing, Tenant may, without theLandlord’s consent, assign this Lease to any parent, affiliated or subsidiarycorporation, provided such assignment does not relieve the original Tenant ofany liability hereunder, and may also assign this Lease without Landlord’sconsent in connection with the merger or consolidation of Tenant with or intoany other corporation or entity, or in connection with the sale or transfer ofa majority of the assets and liabilities of Tenant, so long as, with respect toany of the foregoing (i) the net worth of the

 

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proposed assignee at thetime of transfer is equal to or greater than the net worth of Tenant as of thedate of execution of this lease and the proposed assignee is otherwisefinancially able to meet the obligations of Tenant under this Lease, (ii) asof the effective date of such assignment, the assignee is engaged in a businesscustomarily acceptable for a tenant in a building such as the Building inmetropolitan Denver, Colorado, (iii) the assignee assumes and agrees inwriting to fully perform and observe all of the obligations of Tenant underthis Lease, (iv) at the time of the assignment, this Lease is in fullforce and effect and there is no event of default under this Lease on the partof Tenant, (v) the assignee’s proposed use of the Premises is not inviolation of the approved use provision of this Lease, and (vi) thetransaction giving rise to the assignment was not entered into as a subterfugeto avoid obligations and restrictions under this Lease. At least thirty (30)days prior to the effective date of any assignment under this paragraph, Tenantagrees to furnish Landlord with notice of such assignment, fully executedcopies of the instruments intended to effect such assignment, and withdocumentation establishing Tenant’s satisfaction of the requirements set forthabove.

 

Notwithstanding anything contained in this Lease tothe contrary, Landlord shall not be obligated to entertain or consider anyrequest by Tenant to consent to any proposed assignment of this Lease or subletof all or any part of the premises unless each request by Tenant is accompaniedby a non-refundable fee, payable to Landlord, in the amount of One ThousandDollars ($1,000.00) to cover Landlord’s administrative, legal, and other costsand expenses incurred in processing each of Tenant’s requests. Neither Tenant’spayment, nor Landlord’s acceptance of the foregoing fee shall be construed toimpose any obligation whatsoever upon Landlord to consent to Tenant’s request. Inaddition, should any such request by Tenant seek any change or modification tothe terms of this Lease, and Landlord agrees to such additional or modifiedterms and conditions (which agreement may or may not be given in Landlord’ssole and absolute discretion) Tenant agrees to pay Landlord’s reasonableattorneys’ fees, costs and expenses with respect to the negotiation andpreparation of any resulting amendment to this Lease, which amounts shall beAdditional Rent under this Lease.

 

**13.**                               **Insurance.**

 

(a)                                  Landlord’sInsurance.  Landlord agrees to maintain (i) property damageinsurance covering the Project and the Project equipment and common areafurnishings and (ii) public liability and commercial general liabilityinsurance in such coverage amounts as Landlord determines from time to time inits reasonable discretion. Landlord may carry such other additional insurancecoverage for the Project as Landlord or Landlord’s mortgagee deems appropriateincluding coverage for loss of rents. Tenant will reimburse Landlord, as anOperating Expense, for the costs of all such insurance. All such insurance shallbe for the sole benefit of Landlord and its designated additional insureds.

 

(b)                                 Waiverof Subrogation.  Landlord and Tenant waive, disclaim and releaseeach other from any and all rights of recovery, claims, actions or causes ofaction, against each other, their agents, officers and employees, for or onaccount of any loss or damage that may occur to the Premises, Project, orpersonal property within the Project, by reason of fire or the elementsregardless of cause or origin, including negligence of Landlord or Tenant ortheir agents, officers and employees, but only to the extent of the insuranceproceeds actually paid under the policies of insurance covering such property.Because this subsection is intended to

 

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and will preclude theassignment of any claim mentioned in it by way of subrogation (or otherwise) toan insurance carrier (or any other person), each party to this Lease agreesimmediately to give to each insurance company which has issued to it policiesof fire and extended coverage insurance, written notice of the terms of themutual waivers contained in this subsection, and to have the insurance policiesproperly endorsed, if necessary (and only to the extent available at reasonablecost), to prevent the invalidation of the insurance coverages by reason of themutual waivers contained in this subsection. To the extent such endorsement(s) areunavailable or cannot be obtained at reasonable cost, such requirement shall bedeemed waived; provided however, that the party claiming such unavailability orexcessive cost shall give immediate written notice thereof to the other party.

 

(c)                                  Waiverof Liability.  Landlord will not be liable to Tenant or Tenant’semployees, agents, patrons or visitors, or to any other person whomsoever, forany injury (including death) to person or damage to property on or about theProject, resulting from or caused in part or whole by the negligence ormisconduct of Tenant, its agents, servants or employees, or of any other personentering upon the Premises or Project, or caused by the Project becoming out ofrepair, or caused by leakage of gas, oil, water or steam or by electricityemanating from the Premises or Project, the criminal activities of any persons,or due to any cause whatsoever. Tenant covenants and agrees that it will at alltimes indemnify and hold safe and harmless the Project, the Landlord, Landlord’sofficers, directors, partners, agents, attorneys and employees from any losses,liabilities, claims, suits, costs, expenses, including without limitationreasonable attorneys’ fees, and damages, arising out of any such damage orinjury (except injury to persons or damage to property the sole cause of whichis the negligence or intentional misconduct of Landlord or the failure ofLandlord to repair any part of the Premises which Landlord is obligated torepair and maintain under this Lease within a reasonable time after the receiptof written notice from Tenant of the need for repairs).

 

(d)                                 Tenant’sInsurance.  Tenant shall procure and maintain throughout the termof this Lease, at its sole cost and expense, all of the following insurancecoverages:

 

(1)                                  CommercialGeneral Liability (“CGL”) Insurance providing coverage for bodily injury(including death), property damage and products liability insurance (where suchexposure exists). Tenant’s CGL policy shall contain a broad form contractualliability endorsement, and shall insure both Landlord and Tenant against allclaims, demands or actions arising out of or in connection with: (i) thePremises; (ii) the condition of the Premises; (iii) Tenant’soperations in and maintenance and use of the Premises; and (iv) Tenant’sliability for injury to persons or damage to property assumed under this Lease.Such insurance shall have a combined single limit of not less than Two MillionDollars ($2,000,000) in the aggregate, and One Million Dollars ($1,000,000) peroccurrence, with an additional umbrella policy of One Million Dollars($1,000,000), or such greater amount as Landlord may from time to time require.If Tenant uses vehicles, owned and non-owned, in any way to carry out businesson or about the Project, Tenant shall also maintain Motor Vehicle LiabilityInsurance; such insurance shall have a combined single limit of not less thanOne Million Dollars ($1,000,000) for bodily injury and property damage.

 

(2)                                  Propertydamage insurance covering Tenant’s personal property, fixtures, improvements,wall coverings, floor coverings, window coverings, signs, alterations,

 

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furniture, furnishings,equipment, lighting, ceilings, heating, ventilation and air conditioningequipment and interior plumbing against loss or damage by fire, flood,windstorms, hail, explosion, riot, damage from aircraft and vehicles, smokedamage, vandalism and malicious mischief and such other risks as are from timeto time covered under a “Causes of Loss -Special Form” policy and “extendedcoverage” endorsements, containing the waiver of subrogation required insubsection (b) of this Section 13, and in an amount equal to thegreater of the full replacement value or the amount required by the holder ofany mortgage from time to time placed upon the Project or a portion of theProject containing the Premises, with business interruption insurance coveringthe Premises. Replacement value is understood to mean the cost to replacewithout deduction for depreciation.

 

(3)                                  ColoradoWorker’s Compensation Insurance in statutorily mandated limits.

 

(4)                                  Employer’sLiability Insurance with limits of not less than One Hundred Thousand Dollars($100,000) for bodily injury per accident and each disease, per employee, and atotal combined limit for bodily injury in amounts not less than One HundredThousand ($100,000) per accident and Five Hundred Thousand ($500,000) per eachdisease, or such greater amount as Landlord may from time to time require.

 

(5)                                  PlateGlass Insurance.

 

It is expressly understood and agreed that theforegoing minimum limits of insurance coverage shall not limit the liability ofTenant for its acts or omissions as provided in this lease. All of theforegoing insurance policies (with the exception of Worker’s CompensationInsurance to the extent not available under statutory law) shall name Landlord,any mortgagee, the managing agent for the Project, and such other parties asLandlord shall from time to time designate, as additional insureds as theirrespective interests may appear, and shall provide that any loss shall bepayable to Landlord and such other additional insured parties as theirrespective interests may appear. All such policies shall be procured by Tenantfrom responsible insurance companies licensed to do business in Colorado andreasonably satisfactory to Landlord. All such policies shall be written asprimary policies with deductibles not to exceed One Thousand Dollars ($1,000);provided, however, that the deductible for the Plate Glass Insurance shall notexceed Two Hundred Fifty Dollars ($250). Any other policies, includingLandlord’s policy, will serve as excess coverage. Tenant shall delivercertificates evidencing that the required insurance coverages and endorsements,including waiver of subrogation are in full force and effect to Landlord, priorto the Commencement Date, or, in the case of renewals thereto, fifteen (15)days prior to the expiration of the prior insurance policy, together withevidence that (x) such policies are fully paid for, and (y) nocancellation, material change or non-renewal thereof shall be effective exceptupon thirty (30) days’ prior written notice by registered mail from the insurerto Landlord. Whenever, in Landlord’s reasonable judgment, good businesspractice or change in conditions indicate a need for additional or differenttypes of insurance, Tenant shall, within fifteen (15) days of receipt ofLandlord’s request therefor, obtain the insurance at its own expense. If Tenantshould fail to comply with the foregoing requirements relating to insurance,Landlord may obtain such insurance and Tenant shall pay to Landlord on demandas Additional Rent hereunder the premium cost thereof plus interest at themaximum contractual rate (but in no event to exceed 1-1/2% per month) from thedate of payment by Landlord until repaid by Tenant.

 

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In addition to theforegoing, Tenant shall obtain certificates of insurance evidencing CommercialGeneral Liability Insurance, including Completed Operations, Motor VehicleLiability Insurance, and Worker’s Compensation Insurance and Employer’sLiability Insurance in the amounts required above from any contractor orsubcontractor engaged by Tenant for alterations, repairs or maintenance duringthe Lease Term.

 

**14.****                               Damageand Destruction.**

 

(a)                                  Ifthe Project or Premises are damaged or destroyed by fire, tornado or othercasualty, Tenant will give immediate written notice of such damage ordestruction to Landlord.

 

(b)                                 Ifthe Premises are totally destroyed by fire, tornado or other casualty, or ifthey are so damaged that rebuilding or repairs cannot in Landlord’s estimationbe completed within one hundred eighty (180) days after the date upon whichLandlord is notified by Tenant or otherwise obtains actual knowledge of suchdamage, this Lease will terminate and the unaccrued Rent (other than in theevent such damage or destruction was caused by Tenant or its employees oragents) will be abated during the unexpired portion of this Lease, effectiveupon the date of the occurrence of such damage.

 

(c)                                  Ifthe Premises are damaged by any peril covered by the insurance to be providedby Landlord under Section 13, such insurance proceeds are made availableto Landlord and such rebuilding or repairs can in Landlord’s estimation becompleted within one hundred eighty (180) days after the date upon whichLandlord is notified by Tenant or otherwise obtains actual knowledge of suchdamage, this Lease will not terminate, and Landlord will proceed withreasonable diligence to rebuild and repair the Premises to substantially thecondition in which it existed prior to such damage, except that Landlord willnot be required to rebuild, repair or replace any part of the partitions,fixtures, additions, other improvements or personal property which may havebeen placed in, on or about the Premises by Tenant. If the Premises areuntenantable in whole or in part following such damage, the Rent payable duringthe period in which they are untenantable will be reduced to such extent as maybe fair and reasonable under all of the circumstances.

 

(d)                                 Landlordshall notify Tenant within forty-five (45) days after the date upon whichLandlord is notified by Tenant or otherwise obtains actual knowledge of damagepursuant to this Section 14, if Landlord estimates that Landlord will beunable to repair and restore the Premises within said one hundred eighty (180)day period. Such notice shall set forth the approximate length of time Landlordestimates will be required to complete such repairs and restoration, and,notwithstanding anything to the contrary contained herein: (i) if Landlordestimates that it cannot complete such repairs and rebuilding within said onehundred eighty (180) day period, then Tenant may, by written notice to Landlordterminate this Lease, provided such notice is given to Landlord within fifteen (15)days after Landlord notifies Tenant of the estimated time for completion ofsuch repairs and rebuilding; and (ii) if Landlord, irrespective the timethat Landlord estimated was required to make such repairs and rebuilding, failsto complete such repairs and rebuilding within one hundred eighty (180) daysafter the date upon which Landlord is notified by Tenant or otherwise obtainsactual knowledge of such damage, Tenant may at its option terminate this Leaseby delivering written notice of termination to

 

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Landlord. Tenant may not,in any event, terminate this Lease as hereinabove stated if the damage to thePremises or the Building is in whole or in part the result of the act,omission, fault or negligence of Tenant, its agents, contractors, employees,licensees or invitees Tenant’s termination rights wider thisSection 14(d) shall be Tenant’s exclusive remedy, whereupon allrights and obligations of Landlord and Tenant under this Lease will cease and terminate.

 

(e)                                  Inthe event the holder of any indebtedness secured by a mortgage or deed of trustcovering the Premises requires that the insurance proceeds, if any, be appliedto such indebtedness, then Landlord will have the right to terminate this Leaseby delivering written notice of termination to Tenant within fifteen (15) daysafter such requirement is made by any such holder, whereupon all rights andobligations of Landlord and Tenant wider this Lease will cease and terminate.

 

**15.****                               Condemnation.**

 

(a)                                  Ifthe whole of the Premises or so much thereof as to render the balance unusableby Tenant for the proper conduct of its business shall be taken under power ofeminent domain or transferred under threat thereof, then this Lease, at theoption of either Landlord or Tenant exercised by either party giving writtennotice to the other of such election within thirty (30) days after suchconveyance or taking of possession, whichever is earlier, shall forthwith ceaseand terminate and the Rent shall be duly apportioned as of the date of suchtaking or conveyance. No award for any partial or entire taking shall beapportioned between Landlord and Tenant; Tenant hereby assigns to Landlord anyaward which may be made in such taking or condemnation, together with any andall rights of Tenant now or hereafter arising in or to the same or any partthereof. Notwithstanding the foregoing, Tenant shall be entitled to seek,directly from the condemning authority, an award for its removable tradefixtures, equipment, personal property and relocation expenses, if any, to theextent Landlord’s award is not diminished thereby. In the event of a partialtaking or conveyance which does not result in a termination of this Lease,Monthly Base Rent shall be reduced in proportion to the reduction in the sizeof the Premises so taken or conveyed and this Lease shall be modifiedaccordingly. Promptly after obtaining knowledge thereof, Landlord or Tenant, asthe case may be, shall notify the other of any pending or threatened condemnationor taking affecting the Premises.

 

(b)                                 Ifall or any portion of the Premises shall be condemned or taken for governmentaloccupancy for a limited period, this Lease shall not terminate and Landlordshall be entitled to receive the entire amount of any such award or paymentthereof as damages, rent or otherwise. Tenant hereby assigns to Landlord anyaward which may be made in such temporary taking, together with any and allrights of Tenant now or hereafter arising in or to the same or any partthereof. Tenant shall, however, be entitled to an abatement of Monthly BaseRent in proportion to the reduction in size of the Premises so taken for suchlimited period.

 

**16.****                               HoldingOver.**  Tenant will, at the termination of this Lease by lapseof time or otherwise, surrender immediate possession of the Premises to Landlord.If Landlord agrees in writing that Tenant may hold over after the expiration ortermination of this Lease, unless Landlord and Tenant otherwise agree inwriting on the terms of such holding over, the hold over tenancy shall bedeemed to be month-to-month and will be subject to termination by Landlord orby Tenant at any time upon not less than thirty (30) days’ advance writtennotice, and all of the

 

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other terms andprovisions of this Lease will be applicable during such holdover period, exceptthat Tenant will pay Landlord from time to time upon demand, in addition to theAdditional Rent for the period of any hold over, an amount equal to double theMonthly Base Rent in effect on the termination date. No holding over by Tenant,whether with or without the consent of Landlord, will operate to extend thisLease except as otherwise expressly provided in a writing signed by Landlord.The preceding provisions of this Section 16 are not a consent for Tenantto hold over. In the event Tenant holds over without the written agreement ofLandlord, the holdover tenancy shall be deemed to be a tenancy of sufferance,terminable upon five (5) days prior written notice by Landlord andotherwise subject to all of the terms and conditions of this Lease, except theMonthly Base Rent during any such tenancy at sufferance shall be equal to three(3) times the Monthly Base Rent in effect on the termination date.

 

**17.****                               QuietEnjoyment.**  Subject to the provisions of this Lease, Landlordcovenants that Tenant on paying the Rent and performing the covenants of thisLease on its part to be performed shall and may peacefully and quietly have,hold and enjoy the Premises for the Term of this Lease. Landlord shall not beresponsible for the acts or omissions of any other tenant or third party whichmay interfere with Tenant’s use and enjoyment of the Premises. In the event ofany transfer or transfers of Landlord’s interest in the Premises, the Projector in the real property of which the Premises are a part, other than a transferfor security purposes only, the transferor shall automatically be relieved ofany and all obligations and liabilities on the part of Landlord accruing fromand after the date of such transfer.

 

**18.****                               Eventsof Default. ** The following events shall be deemed to beevents of default by Tenant under this Lease:

 

(a)                                  Tenantshall fail to pay when due any installment of Monthly Base Rent, AdditionalRent or any other amounts payable hereunder;

 

(b)                                 ThisLease or the estate of Tenant hereunder shall be transferred to or shall passto any other person or party in violation of the provisions of this Lease;

 

(c)                                  ThisLease or the Premises or any part thereof shall be subject to attachment, levyor other process of law directed against Tenant and such attachment or levyshall not be discharged within fifteen (15) days after the levy or attachmentthereof;

 

(d)                                 Tenantor any Guarantor hereof shall file a Petition in Bankruptcy or insolvency orfor reorganization or rearrangement of debt under the Bankruptcy Laws of theUnited States or any insolvency act of any state, or shall voluntarily takeadvantage of any such law;

 

(e)                                  Involuntaryproceedings under any such bankruptcy or insolvency law shall be institutedagainst Tenant or against any Guarantor hereof, or a receiver or trustee shallbe appointed for all or substantially all of the property of Tenant or any suchGuarantor and such proceedings shall not be dismissed or vacated within thirty(30) days after such institution or appointment;

 

(f)                                    Tenantshall abandon or vacate the Premises for ten (10) consecutive days;

 

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(g)                                 Tenantshall fail to perform any of the other agreements, terms, covenants orconditions hereof on Tenant’s part to be performed, and such nonperformanceshall continue for a period of thirty (30) days after notice thereof byLandlord to Tenant (which notice, however, shall only be given once during any calendaryear with respect to any one term covenant, or condition, after which an eventof default shall occur immediately upon Tenant’s breach of the same term,covenant, or condition); provided, however, that if Tenant cannot reasonablycure such nonperformance within thirty (30) days, Tenant shall not be indefault if it commences cure within said thirty (30) day period and diligentlypursues the same to completion, with completion to occur in any event withinsixty (60) days after such notice;

 

(h)                                 Tenantshall fail to obtain a release of any mechanic’s lien as required herein; or

 

(i)                                     Allor any part of the personal property of Tenant is seized, subjected to levy orattachment, or similarly repossessed or removed from the Premises.

 

**19.****                               Remedies.**

 

(a)                                  Uponthe occurrence of any event of default, Landlord will have, at its election,the option to pursue any one or more of the following remedies:

 

(1)                                  Togive Tenant written notice of Landlord’s intention to terminate this Lease onthe date such notice is given or on any later date specified therein,whereupon, on the date specified in such notice, Tenant’s right to possessionof the Premises shall cease arid this Lease shall thereupon be terminated;provided however, all of Tenant’s obligations, including but not limited to,the amount of Monthly Base Rent and other obligations reserved in this Leasefor the balance of the term hereof, shall immediately be accelerated and dueand payable.

 

(2)                                  Tore-enter and take possession of the Premises or any part thereof and repossessthe same as Landlord’s former estate and expel Tenant and those claimingthrough or under Tenant, and remove the effects of both or either, using suchforce for such purposes as may be reasonably necessary, without being liablefor prosecution thereof, without being deemed guilty of any manner of trespassand without prejudice to any remedies for arrears of rent or preceding breachof covenants or conditions. Should Landlord elect to re-enter the Premises asprovided in this subsection 19(a)(2), or should Landlord take possessionpursuant to legal proceedings or pursuant to any notice provided for by law,Landlord may, from time to time, without terminating this Lease, relet thePremises or any part thereof in Landlord’s or Tenant’s name, but for theaccount of Tenant, for such term or terms (which may be greater or less thanthe period which would otherwise have constituted the balance of the Term ofthis Lease) and on such conditions and upon such other terms (which may includeconcessions of free rent and alteration and repair of the Premises) asLandlord, in its discretion, may determine, and Landlord may collect andreceive the rents therefor. Landlord shall in no way be responsible or liablefor any failure to relet the Premises or any part thereof or for any failure tocollect any rent due upon such reletting. No such re-entry or taking possessionof the Premises by Landlord shall be construed as an election on Landlord’spart to terminate this Lease unless a written notice of such intention be givento Tenant. No notice from Landlord hereunder or wider a forcible entry anddetainer statute or similar law shall constitute an election by Landlord toterminate this Lease

 

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unless such noticespecifically so states. Landlord reserves the right following any such re-entryor reletting, to exercise its right to terminate this Lease by giving Tenantsuch written notice, in which event, this lease will terminate as specified insaid notice.

 

(b)                                 inthe event that Landlord does not elect to terminate this Lease as permitted insubsection 19(a)(1), but on the contrary, elects to take possession as providedin subsection 19(a)(2), Tenant shall pay to Landlord: (x) the Rent andother sums as herein provided, which would be payable hereunder if suchrepossession had not occurred, less (y) the net proceeds, if any, of anyreletting of the Premises after deducting all of Landlord’s expenses inconnection with such reletting, including but without limitation, allrepossession costs, brokerage commissions, legal expenses, attorneys’ fees,expenses of employees, alterations and repair costs and expenses of preparationfor such reletting. If, in connection with any reletting, the new lease termextends beyond the existing term, or the premises covered thereby include otherpremises not part of the Premises, a fair apportionment of the rent receivedfrom such reletting and the expenses incurred in connection therewith asprovided aforesaid will be made in determining the net proceeds from suchreletting. Tenant shall pay such Rent and other sums to Landlord monthly on thedays on which the Rent would have been payable hereunder if possession had notbeen retaken.

 

(c)                                  Inthe event this Lease is terminated, Landlord shall be entitled to recoverforthwith against Tenant as damages for loss of the bargain and not as apenalty, an aggregate sum which, at the time of such termination of this Lease,represents the excess, if any, of the aggregate of the Rent and all other sumspayable by Tenant hereunder that would have accrued for the balance of the termover the aggregate rental value of the Premises (such rental value to becomputed on the basis of a tenant paying not only a rent to Landlord for theuse and occupation of the Premises, but also such other charges as are requiredto be paid by Tenant under the terms of this Lease) for the balance of suchterm, both discounted to present worth at the rate of ten percent (10%) perannum. Alternatively, at Landlord’s option, Tenant shall remain liable toLandlord for damages in an amount equal to the Rent and other sums arisingunder the Lease for the balance of the term had the Lease not been terminated,less the net proceeds, if any, from any subsequent reletting, after deductingall expenses associated therewith and as enumerated above. Landlord shall beentitled to receipt of such amounts from Tenant monthly on the days on whichsuch sums would have otherwise been payable.

 

(d)                                 Suitor suits for the recovery of the amounts and damages set forth above may bebrought by Landlord, from time to time, at Landlord’s election and nothingherein shall be deemed to require Landlord to await the date whereon this Leaseor the term hereof would have expired had there been no such default by Tenantor no such termination, as the case may be.

 

(e)                                  Afteran event of default by Tenant, Landlord may sue for or otherwise collect allrents, issues and profits payable under all subleases on the Premises,including those past due and unpaid.

 

(f)                                    Afteran event of default by Tenant, Landlord may without terminating this Lease,enter upon the Premises, with force if necessary, without being liable forprosecution of any claim for damages, without being deemed guilty of any mannerof trespass and without

 

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prejudice to any otherremedies, and do whatever Tenant is obligated to do under the terms of thisLease. Tenant agrees to reimburse Landlord on demand for any expenses whichLandlord may incur in effecting compliance with the Tenant’s obligations underthis Lease; further, Tenant agrees that Landlord shall not be liable for anydamages resulting to Tenant from effecting compliance with Tenant’s obligationsunder this subsection caused by the negligence of Landlord or otherwise.

 

(g)                                 Nofailure by Landlord to insist upon the strict performance of any agreement,term, covenant or condition hereof or to exercise any right or remedyconsequent upon a breach thereof, and no acceptance of full or partial rentduring the continuance of any such breach, shall constitute a waiver of anysuch breach of such agreement, term, covenant or condition. No agreement, term,covenant or condition hereof to be performed or complied with by Tenant, and nobreach thereof, shall be waived, altered or modified except by writteninstrument executed by Landlord. No waiver of any one breach shall affect oralter this Lease, but each and every agreement, term, covenant and conditionhereof shall continue in full force and effect with respect to any other thenexisting or subsequent breach thereof. Notwithstanding any unilateraltermination of this Lease, this Lease shall continue in force and effect as toany provisions hereof which require observance or performance of Landlord orTenant subsequent to termination.

 

(h)                                 Nothingcontained in this Section 19 shall limit or prejudice the right ofLandlord to prove and obtain as liquidated damages in any bankruptcy,insolvency, receivership, reorganization or dissolution proceeding, an amountequal to the maximum allowed by any statute or rule of law governing suchproceeding and in effect at the time when such damages are to be proved,whether or not such amount be greater, equal to or less than the amountsrecoverable, either as damages or rent, referred to in any of the precedingprovisions of this Section 19.

 

(i)                                     AnyRent or other amounts owing to Landlord hereunder which are not paid withinfive (5) days of the date they are due, shall thereafter bear interestfrom the due date at the rate of eighteen percent (18%) per annum (“InterestRate”) until paid. Similarly, any amounts paid by Landlord to cure any defaultof Tenant or to perform any obligation of Tenant, shall, if not repaid by theTenant within five (5) days of demand by Landlord, thereafter bearinterest from the date paid by Landlord at the Interest Rate until paid. Inaddition to the foregoing, Tenant shall pay to Landlord whenever any MonthlyBase Rent, Additional Rent or any other sums due hereunder remain unpaid morethan five (5) days after the due date thereof, a late charge equal to tenpercent (10%) of the amount due. Further, in the event of default by Tenant, inaddition to all other rights and remedies, Landlord shall be entitled toreceive from Tenant all sums, the payment of which may previously have beenwaived or abated by Landlord, or which may have been paid by Landlord pursuantto any agreement to grant Tenant a rental abatement or other monetaryinducement or concession, including but not limited to any tenant finishallowance or moving allowance, together with interest thereon from the date ordates such amounts were paid by Landlord or would have been due from Tenant butfor the abatement, monetary inducement or concession, at the Interest Rate,until paid; it being understood and agreed that such inducement, concession orabatement was made on the condition and basis that Tenant fully perform allobligations and covenants under the Lease for the entire term.

 

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(j)                                     Eachright and remedy provided for in this Lease shall be cumulative and shall be inaddition to every other right or remedy provided for in this Lease, now orhereafter existing at law or in equity or by statute or otherwise, including,but not limited to, suits for injunctive or declaratory relief and specificperformance. The exercise or commencement of the exercise by Landlord of anyone or more of the rights or remedies provided for in this Lease now orhereafter existing at law or in equity or by statute or otherwise shall notpreclude the simultaneous or subsequent exercise by Landlord of any or allother rights or remedies provided for in this Lease, or now or hereafterexisting at law or in equity or by statute or otherwise. All costs incurred byLandlord in connection with collecting any amounts and damages owing by Tenantpursuant to the provisions of this Lease or to enforce any provision of thisLease, including by way of example, but not limitation, reasonable attorneys’fees and court costs, shall also be recoverable by Landlord from Tenant.

 

(k)                                  Inthe event of any default by Landlord, Tenant’s exclusive remedy will be anaction for damages (Tenant waives the benefit of any laws granting it a lienupon the property of Landlord or upon rent due Landlord); provided that, priorto commencing any such action Tenant will give Landlord written noticespecifying such default with particularity, and, except as otherwise expresslyset forth herein, Landlord will have thirty (30) days in which to cure any suchdefault; provided, however, that if Landlord cannot reasonably cure such defaultwithin said thirty (30) day period, Landlord shall not be in default if itcommences cure within said thirty (30) day period and diligently pursues thesame to completion. Unless and until Landlord fails to so cure any defaultafter such notice, Tenant will not have any remedy or cause of action by reasonof such default or alleged default. All obligations of Landlord under thisLease will be construed as independent covenants, not conditions; and all suchobligations will be binding upon Landlord only during the period of itsownership of the Premises. The term “Landlord” means only the owner, for thetime being of the Premises, and in the event of the transfer by such owner ofits interest in the Premises, such owner will be released and discharged fromall covenants and obligations of the Landlord accruing after such transfer, butsuch covenants and obligations will be binding during the Lease term upon eachnew owner for the duration of such owner’s ownership. Landlord will not haveany personal liability under this Lease; Tenant agrees to look solely to theequity or interest then owned by Landlord in the Premises. In no event shallany deficiency judgment or any money judgment of any kind be sought or obtainedagainst Landlord or any successor landlord.

 

(l)                                     Landlordand Tenant hereby waive trial by jury in any action, proceeding or counterclaimbrought by either party against the other upon any matters whatsoever arisingout of or in any way connected with this Lease, Tenant’s use or occupancy ofthe Premises, or any claim of injury or damage.

 

**20.****                               Bankruptcyor Insolvency; Assumption; Adequate Protection.**  Thefollowing shall apply in the event of the bankruptcy or insolvency of Tenant:

 

(a)                                  Chapter7 Bankruptcy.  If a petition is filed by, or an order for reliefis entered against Tenant under Chapter 7 of the Bankruptcy Code and thetrustee of Tenant elects to assume this Lease for the purpose of assigning it,the election or assignment, or both, may be made only if all of the terms andconditions of subsections (b) and (d) below are satisfied. If thetrustee fails to elect to assume this Lease for the purpose of assigning itwithin sixty (60) days

 

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after his appointment,this Lease will be deemed to have been rejected. To be effective, an electionto assume this Lease must be in writing and addressed to Landlord and, inLandlord’s business judgment, all of the conditions hereinafter stated, whichLandlord and Tenant acknowledge to be commercially reasonable, must have beensatisfied. Landlord shall then immediately be entitled to possession of thePremises without further obligation to Tenant or the trustee, and this Leasewill be canceled. Landlord’s right to be compensated for damages in thebankruptcy proceeding, however, shall survive.

 

(b)                                 Chapter11 or Chapter 13 Bankruptcy.  If Tenant files a petition forreorganization under chapters 11 or 13 of the Bankruptcy Code or a proceedingthat is filed by or against Tenant under any other chapter of the BankruptcyCode is converted to a chapter 11 or 13 proceeding and Tenant’s trustee orTenant as a debtor-in-possession fails to assume this Lease within sixty (60)days from the date of the filing of the petition or the conversion, the trusteeor the debtor-in-possession will be deemed to have rejected this Lease. To beeffective, an election to assume this Lease must be in writing and addressed toLandlord and, in Landlord’s business judgment, all of the following conditions,which Landlord and Tenant acknowledge to be commercially reasonable, must havebeen satisfied:

 

(1)                                  Thetrustee or the debtor-in-possession has cured or has provided to Landlordadequate assurance, as defined in this subsection (b), that:

 

(a)                                  Thetrustee will cure all monetary defaults under this Lease within ten(10) days from the date of the assumption; and

 

(b)                                 Thetrustee will cure all non-monetary defaults under this Lease within thirty (30)days from the date of the assumption.

 

(2)                                  Thetrustee or the debtor- in-possession has compensated Landlord, or has providedto Landlord adequate assurance, as defined in this subsection (b), that withinten (10) days from the date of the assumption Landlord will be compensatedfor any pecuniary loss it incurred arising from the default of Tenant, thetrustee, or the debtor-in-possession as recited in Landlord’s written statementof pecuniary loss sent to the trustee or the debtor-in-possession.

 

(3)                                  Thetrustee or the debtor-in-possession has provided Landlord with adequateassurance of the future performance of each of Tenant’s obligations under theLease; provided, however, that:

 

(a)                                  Thetrustee or debtor-in-possession will also deposit with Landlord, as securityfor the timely payment of Rent, an amount equal to three (3) months’Monthly Base Rent and other monetary charges accruing under this Lease.

 

(b)                                 Ifnot otherwise required by the terms of this Lease, the trustee or thedebtor-in-possession will also pay in advance, on each day that the Rent ispayable, one-twelfth of Tenant’s annual obligations under the lease for theAdditional Rent.

 

(c)                                  Fromand after the date of the assumption of this Lease, the trustee or thedebtor-in-possession will pay the Rent payable under this Lease in advance inequal monthly installments on each day that the Rent is payable.

 

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(d)                                 Theobligations imposed upon the trustee or the debtor-in-possession will continuefor Tenant after the completion of bankruptcy proceedings.

 

(4)                                  Landlordhas determined that the assumption of this Lease will not:

 

(a)                                  Breachany provision in any other lease, mortgage, financing agreement, or otheragreement by which Landlord is bound relating to the Project; or

 

(b)                                 Disrupt,in Landlord’s judgment, the tenant mix of the Project or any other attempt byLandlord to provide a specific variety of tenants in the Project that, inLandlord’s judgment, would be most beneficial to all of the tenants of theProject and would enhance the image, reputation, and profitability of theProject.

 

(5)                                  Forpurposes of this subsection (b), “adequate assurance” means that:

 

(a)                                  Landlordwill determine that the trustee or the debtor-in-possession has, and willcontinue to have, sufficient unencumbered assets after the payment of allsecured obligations and administrative expenses to assure Landlord that thetrustee or the debtor-in-possession will have sufficient funds to fulfillTenant’s obligations under this Lease and to keep the Premises properly staffedwith sufficient employees to conduct a fully operational, actively promotedbusiness on the Premises; and

 

(b)                                 Anorder will have been entered segregating sufficient cash payable to Landlord ora valid and perfected first lien and security interest will have been grantedin property of Tenant, trustee, or debtor-sin-possession that is acceptable forvalue and kind to Landlord, to secure to Landlord the obligation of the trusteeor debtor-in-possession to cure the monetary or non-monetary defaults underthis Lease within the time periods set forth above.

 

(c)                                  TerminationUpon Bankruptcy.  In the event that this Lease is assumed by atrustee appointed for Tenant or by Tenant as debtor-in-possession under theprovisions of subsection (b) above and, thereafter, Tenant is eitheradjudicated a bankrupt or files a subsequent petition for rearrangement underChapter 11 of the Bankruptcy Code, then Landlord may terminate, at its option,this Lease and all Tenant’s rights under it, by giving written notice ofLandlord’s election to terminate.

 

(d)                                 Assignmentby Bankruptcy Trustee.  If the trustee or thedebtor-in-possession has assumed the Lease, under the terms of subsection(a) or (b) above, and elects to assign Tenant’s interest under thisLease or the estate created by that interest to any other person, that interestor estate may be assigned only if Landlord acknowledges in writing that theintended assignee has provided adequate assurance, as defined in this subsection(d), of future performance of all of the terms, covenants, and conditions ofthis Lease to be performed by Tenant. For the purposes of this subsection(d) of this Section 20, “adequate assurance of future performance”means that Landlord has ascertained that each of the following conditions hasbeen satisfied:

 

(1)                                  Theassignee has submitted a current financial statement, audited by a certifiedpublic accountant, that shows a net worth and working capital in amounts

 

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determined by Landlord tobe sufficient to assure the future performance by the assignee of Tenant’sobligations under this Lease;

 

(2)                                  Ifrequested by Landlord, the assignee will obtain guarantees, in form andsubstance satisfactory to Landlord from one or more persons who satisfyLandlord’s standards of creditworthiness;

 

(3)                                  Landlordhas obtained all consents or waivers from any third party required under anylease, mortgage, financing arrangement, or other agreement by which Landlord isbound, to enable Landlord to permit the assignment;

 

(4)                                  When,pursuant to the Bankruptcy Code, the trustee or the debtor-in-possession isobligated to pay reasonable use and occupancy charges for the use of all orpart of the Premises, the charges will not be less than the Monthly Base Rentas defined in this Lease and Additional Rent and other monetary obligations ofTenant included herein as Rent.

 

(e)                                  NoWaiver.  Neither Tenant’s interest in the Lease nor any estate ofTenant created in the Lease will pass to any trustee, receiver, assignee forthe benefit of creditors, or any other person or entity, or otherwise byoperation of law under the laws of any state having jurisdiction of the personor property of Tenant unless Landlord consents in writing to the transfer.Landlord’s acceptance of Rent or any other payments from any trustee, receiver,assignee, person, or other entity will not be deemed to have waived, or waive,the need to obtain Landlord’s consent or Landlord’s right to terminate this Leasefor any transfer of Tenant’s interest under this Lease without that consent.

 

**21.****                               Subordinationand Attornment.**  Tenant accepts this Lease and the Premisessubject and subordinate to any mortgage(s) or deed(s) of trust now orat any time hereafter constituting a lien or charge upon the Premises or theProject. This provision is self-operative and no further instrument ofsubordination will be required in order to effect it. Tenant will at any timeon demand execute any instruments, releases or other documents which may berequired by any mortgagee for the purpose of subjecting and subordinating thisLease to the lien of any such mortgage or deed of trust. Tenant agrees that ifthe holder of any mortgage, deed of trust or other encumbrance encumbering the Projectsucceeds to Landlord’s interest in the Premises, Tenant will pay to such holderall Rents subsequently payable under this Lease and Tenant will, upon requestof such successor in interest, automatically become the Tenant of and attorn tosuch successor in interest without change in the terms or provisions of thisLease. Such successor in interest will not be bound by (a) a payment ofMonthly Base Rent or Rent for more than one month in advance or (b) anyamendment or modification of this Lease made without the written consent ofsuch successor in interest. Tenant will, upon demand, execute, acknowledge anddeliver an instrument or instruments confirming such attornment.

 

**22.**                               **Mechanic’s Liens and Tenant’s Taxes.**

 

(a)                                  Tenantshall pay or cause to be paid all costs for work done by or on behalf of Tenantor caused to be done by or on behalf of Tenant on the Premises of a characterwhich will or may result in liens against Landlord’s interest in the Premisesor Project and Tenant will keep the Premises and Project free and clear of allmechanic’s liens and other liens on

 

26

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account of work done foror on behalf of Tenant or persons claiming under Tenant. Tenant hereby agreesto indemnify, defend and save Landlord harmless of and from all liability,loss, damages, costs or expenses, including reasonable attorneys’ fees,incurred in connection with any claims of any nature whatsoever for workperformed for, or materials, services or supplies furnished to Tenant,including lien claims of laborers, materialmen or others. Should any such liensbe filed or recorded against the Premises or Project with respect to work done,services performed for or materials supplied to or on behalf of Tenant orshould any action affecting the title thereto be commenced, Tenant shall causesuch liens to be released of record within five (5) days after noticethereof. If Tenant desires to contest any such claim of lien, Tenant shallnonetheless cause such lien to be released of record by the posting of adequatesecurity with a court of competent jurisdiction as may be provided byColorado’s mechanic lien statutes. If Tenant shall be in default in paying anycharge for which such a mechanic’s lien or suit to foreclose such a lien has beenrecorded or filed and shall not have caused the lien to be released or suitdismissed as aforesaid, Landlord may (but without being required to do so) paysuch lien or claim and any costs associated therewith, and the amount so paid,together with reasonable attorneys’ fees incurred in connection therewith,shall be immediately due from Tenant to Landlord as Additional Rent.

 

(b)                                 Tenantshall be liable for and shall pay at least ten (10) days beforedelinquency and Tenant hereby agrees to indemnify and hold Landlord harmlessfrom and against any liability in connection with, all taxes levied against anypersonal property, fixtures, machinery, equipment, apparatus, systems andappurtenances placed by or on behalf of Tenant in or about or utilized by Tenantin, upon or in connection with the Premises (“Equipment Taxes”). If anyEquipment Taxes are levied against Landlord or Landlord’s property or if theassessed value of Landlord’s property is increased by the inclusion therein ofa value placed upon such personal property, fixtures, machinery, equipment,apparatus, systems or appurtenances of Tenant, and if Landlord, after writtennotice to Tenant, pays the Equipment Taxes or taxes based upon such anincreased assessment (which Landlord shall have the right to do regardless ofthe validity of such levy, but under proper protest if requested by Tenantprior to such payment and if payment under protest is permissible), Tenantshall pay to Landlord upon demand, as Additional Rent hereunder, the taxes solevied against Landlord or the proportion of such taxes resulting from suchincrease in the assessment; provided, however, that in any such event, Tenantshall have the right, on behalf of Landlord and with Landlord’s fullcooperation, but at no cost to Landlord, to bring suit in any court ofcompetent jurisdiction to recover the amount of any such tax so paid underprotest, and any amount so recovered shall belong to Tenant (provided Tenanthas previously paid such amount to Landlord). Notwithstanding the foregoing tothe contrary, Tenant shall cooperate with Landlord to the extent reasonablynecessary to cause the fixtures, furnishings, equipment and other personalproperty to be assessed and billed separately from the Project or the realproperty of which the Premises form a part, and Landlord shall use reasonableefforts to treat all other Tenants on the same basis.

 

(c)                                  Tenantshall pay to Landlord, as Additional Rent, any excise, sales, privilege orother tax, assessment or other charge (other than income or franchise taxes)imposed, assessed or levied by any governmental or quasi-governmental authorityor agency upon Landlord on account of this Lease, the Rent or other paymentsmade by Tenant hereunder, any other benefit received by Landlord hereunder,Landlord’s business as a lessor hereunder, or

 

27

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otherwise in respect ofor as a result of the agreement or relationship of Landlord and Tenanthereunder.

 

**23.****                               Authoritiesfor Action and Notice.**

 

(a)                                  Exceptas otherwise provided herein, Landlord may, for any matter pertaining to thisLease, act by and through its Project manager or any other person designated inwriting from time to time.

 

(b)                                 Allnotices or demands required or permitted to be given to Landlord hereundershall be in writing, and shall be deemed duly served when received, if handdelivered and receipted for, or three (3) days after deposit in the UnitedStates mail, with proper postage prepaid, certified mail, return receiptrequested, addressed to Landlord at its address as specified in Section 1hereof. All notices or demands required to be given to Tenant hereunder shallbe in writing, and shall be deemed duly served when received, if handdelivered, or three (3) days after deposited in the United States mail,with proper postage prepaid, certified mail, return receipt requested,addressed to Tenant at its address as specified in Section 1 hereof.Either party shall have the right to designate in writing, served as aboveprovided, a different address to which notice is to be provided. The foregoingshall in no event prohibit notice from being given as provided in Rule 4of the Colorado Rules of Civil Procedure, as the same may be amended fromtime to time.

 

**24.****                               EstoppelCertificates. ** Tenant agrees that, from time to time, uponnot less than ten (10) business days prior request by Landlord (and whichten-day period is not subject to any notice and cure periods otherwise providedunder this Lease), Tenant shall execute and deliver to Landlord a writtenCertificate in substantially the form and substance of Exhibit Gattached hereto and made a part hereof, certifying that this Lease is in fullforce and effect, the date to which rent has been paid, the unexpired Term ofthe Lease, that not more than one (1) month’s rental has been paid inadvance, and all other matters and statements pertaining to this Lease as maybe requested by Landlord or Landlord’s respective lenders. If Tenant fails toexecute and deliver any such Certificate within ten (10) days after suchrequest, then such failure shall constitute a material default by Tenant underthis Lease, and in such event, Tenant agrees to pay to Landlord as liquidateddamages therefore (and in addition to all equitable remedies available toLandlord) an amount equal to Five Hundred Dollars ($500.00) per day for eachday that Tenant fails to so deliver such Certificate to Landlord after theexpiration of such ten (10) day period.

 

If Tenant fails to execute any such instrument withinsaid ten (10) day period, Tenant irrevocably appoints Landlord as itsattorney-in-fact, in Tenant’s name, to execute such instrument and Tenant’sfailure to deliver such Estoppel Certificate within said ten (10) dayperiod shall be conclusive upon Tenant that this Lease is in full force andeffect, without modification, except as may be represented by Landlord, thatthere are no uncured defaults in Landlord’s performance, not more than one(1) month’s rental has been paid in advance, and that all other statementsrequired to be made in the Estoppel Certificate are conclusively made.

 

It is understood and agreed that Tenant’s obligationto furnish such Estoppel Certificates in a timely fashion is a materialinducement for Landlord’s execution of this Lease.

 

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**25.****                               Landlord’sReview of Tenant’s Documents.** In the event Tenant shall requestLandlord’s approval of, or consent to, any documents/instruments concerningTenant’s financing arrangements or security agreements with third parties, orany other document/instrument review for Tenant’s benefit, Tenant agrees thatit shall pay, as so much Additional Rent under this Lease, Landlord’sreasonable administrative costs and attorneys’ fees, costs and expensesincurred with respect to Landlord’s review, approval or rejection thereof.

 

**26.****                               Miscellaneous.**

 

(a)                                  Wordsof any gender used in this Lease will be held and construed to include anyother gender, and words in the singular number shall be held to include theplural, and vice versa, unless the context otherwise requires.

 

(b)                                 Theterms, provisions, covenants and conditions contained in this Lease shall applyto, inure to the benefit of, and be binding upon, the parties to this Lease andtheir respective heirs, legal representatives, successors and permittedassigns, except as otherwise expressly provided in this Lease. Landlord shallhave the right to transfer and assign, in whole or in part, its rights andobligations in the Project and this Lease. Each party agrees to furnish to theother, promptly upon demand, a corporate resolution, proof of due authorizationby partners, or other appropriate documentation evidencing the authorization ofsuch party to enter into this Lease, and the binding authority of the signatoryhereto.

 

(c)                                  Thecaptions inserted in this Lease are for convenience only and in no way define,limit or otherwise describe the scope or intent of this Lease, or any provisionhereof, or in any way affect the interpretation of this Lease.

 

(d)                                 ThisLease may not be altered, changed or amended except by an instrument in writingsigned by both parties to this Lease.

 

(e)                                  Allobligations of Tenant under this Lease which are not fully performed as of theexpiration or earlier termination of this Lease will survive the expiration orearlier termination of the Lease term, including without limitation all paymentobligations with respect to taxes and insurance and all obligations concerningthe condition of the Premises. Upon the expiration or earlier termination ofthis Lease, and prior to Tenant’s vacating the Premises, Tenant will pay toLandlord any amount reasonably estimated by Landlord to put the Premises,including without limitation all heating and air conditioning systems andequipment therein, in good condition and repair. Tenant shall also, prior tovacating the Premises, pay to Landlord the amount, as reasonably estimated byLandlord, of Tenant’s obligation for real estate taxes and insurance premiumsfor the year in which the Lease expires or terminates. All such amounts shallbe used and held by Landlord for payment of such obligations of Tenant underthis Lease, with Tenant being liable for any additional costs upon demand byLandlord, or with any excess to be returned to the Tenant after all suchobligations have been determined and satisfied, as the case may be. Anysecurity deposit held by Landlord may, upon Landlord’s election, be creditedagainst the amount payable by Tenant under this subsection.

 

(f)                                    Ifany clause or provision of this Lease is illegal, invalid or unenforceableunder present or future laws effective during the Term of this Lease, then aridin that event, it is

 

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the intention of theparties to this Lease that the remainder of this Lease will not be affectedthereby, and it is also the intention of the parties to this Lease that in lieuof each clause or provision of this Lease that is illegal, invalid orunenforceable, there be added as a part of this Lease a clause or provision assimilar in terms to such illegal, invalid or unenforceable clause or provisionas may be possible and be legal, valid and enforceable.

 

(g)                                 Landlordreserves the right to relocate the Premises to substantially comparable spacewithin the Project. Landlord will give Tenant written notice of its intentionto relocate the Premises, and Tenant will complete its relocation within thirty(30) days after Landlord’s notice. The Monthly Base Rent of the new premiseswill not exceed the Monthly Base Rent for the Premises unless Landlord andTenant otherwise agree in writing. Effective on the date of such relocationthis Lease will be amended by deleting the description of the Premises andsubstituting for it a description of the new premises. Landlord agrees to paythe reasonable costs of moving Tenant to such other space within the Project.

 

(h)                                 ThisLease is an offer only, subject to prior leasing of the Premises and such offeris subject to withdrawal or non-acceptance by Landlord or to other leasing ofthe Premises without notice. This Lease will not be valid or binding unless anduntil accepted by Landlord in writing and a fully executed copy has beendelivered to both parties to this Lease.

 

(i)                                     Landlordshall pay a commission to the Landlord’s Broker identified in Section 1 ofthis Lease pursuant to a separate agreement between them. Tenant represents andwarrants that it has dealt with no broker, agent or other person in connectionwith this transaction and that no broker, agent or other person brought aboutthis transaction (other than the Tenant’s Broker identified in Section 1).Tenant agrees to indemnify and hold Landlord harmless from and against anyclaims by any broker, agent or other person claiming a commission or other formof compensation by virtue of having dealt with Tenant with regard to thisLease, including, without limitation, Tenant’s Broker.

 

(j)                                     Timeis of the essence hereof.

 

(k)                                  ThisLease shall be governed by and construed in accordance with the applicable lawsof the State of Colorado.

 

(l)                                     ThisLease, together with the exhibits attached hereto, contains the entireagreement of the parties and, except as otherwise expressly set forth herein,may not be amended or modified in any manner except by an instrument in writingsigned by both parties.

 

(m)                               Wheneverany term, covenant or provision of this Lease grants to Landlord a right ofapproval or consent, Landlord agrees that such consent or approval, except asotherwise specifically provided, will not be unreasonably withheld nor delayed.

 

(n)                                 Whereverthere is provided in this Lease a time limitation for performance by Landlordor Tenant of any obligation, including but not limited to obligations relatedto construction, repair, maintenance or service (but excluding Tenant’sobligation to pay Rent and other monetary obligations of Tenant hereunder), thetime provided for shall be extended for as long as, and to the extent thatdelay in compliance with such limitation is due to, an act of God,

 

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government control, labordisputes, strikes, civil disturbance or other factors beyond the reasonablecontrol of either Landlord or Tenant, as applicable.

 

(o)                                 NeitherTenant nor anyone acting through, for, or in place of Tenant, including but notlimited to any trustee, receiver, trustee in bankruptcy or other liquidatingagent, shall conduct or advertise on or from or pertaining to the Premises, anyauction or close-out or going out of business or liquidation sale.

 
| LANDLORD: |   | WKB VALUE PARTNERS, a  Delaware limited   Partnership                       |
|-----------|--------|-----------------------------------------------------------------------------|
|      |   |                                                                        |
|      |   | By:                                                                         | KOLL BREN SCHREIBER  REALTY  ADVISORS, INC., a Delaware corporation,   its Authorized Managing Agent |
|      |   |                                                                        |   |
|      |   |                                                                        |   |
|      |   |                                                                        | By: | /s/ Steve Jarecki |
|      |   |                                                                        |   | Steve Jarecki, or Vice  President |
|      |   |                                                                        |
|      |   |                                                                        |
| TENANT:   |   | MCFSA, LTD., a Texas  limited partnership d/b/a   Metroplex Control Systems |
|      |   |                                                                        |   |
|      |   | By:                                                                         | Metroplex Commercial  Fire & Security   Alarms, Inc., its general partner |
|      |   |                                                                        |   |
|      |   |                                                                        |   |
|      |   |                                                                        | By: | /s/ [ILLEGIBLE] |
|      |   |                                                                        | Name: | /s/ [ILLEGIBLE] |
|      |   |                                                                        | Its: | President |
|           |        |                                                                             |  |  |  |  |  |

 

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**ADDENDUMTOARAPAHOE BUSINESS PARK I LEASE AGREEMENT**

** **

This ADDENDUM TO ARAPAHOEBUSINESS PARK I LEASE AGREEMENT (this “Addendum”) is attached to and made partof that certain Arapahoe Business Park I Lease Agreement (the “Lease”) dated November19, 2002, between WKB VALUE PARTNERS, L.P., a Delaware limited partnership (“Landlord”)and MCFSA, LTD., a Texas limited partnership d/b/a Metroplex Control Systems (“Tenant”)as if set forth therein in full. Any initially capitalized terms not defined inthis Addendum shall have the meaning set forth in the Lease. In the event of aconflict between the terms hereof and the terms of the Lease the terms of thisAddendum shall control.

 

1.             Thefollowing paragraph is added to the Lease as Section 2(d):

 

(d)           Early Access.  From arid after December 21, 2002, butprior to the Commencement Date, Tenant, at its sole risk but with no obligationto pay Rent, may enter the Premises for the purpose of installing furniture,fixtures and equipment and other leasehold improvements (“FF&E”),including, but not limited to, wall and floor coverings, millwork anddraperies, provided that such entry and work do not unreasonably interfere inany way with the performance of Landlord’s Work or with other workers orTenants in or about the building or buildings in which the Premises arelocated. Any such entry by Tenant shall be subject to all terms and conditionsof this Lease, which shall be in full force and effect, except for Tenant’sobligation to pay Rent. At any time during such period of early entry, ifLandlord notifies Tenant that Tenant’s entry or work is interfering with ordelaying the performance of work to be performed by Landlord or other workersin and about the Building, or causing any disruption whatsoever, Tenant shallforthwith discontinue any further work and shall vacate the Premises, and shallcause its workmen or contractors to remove therefrom, any equipment, materialsor installations which are the subject of Landlord’s notice. All rights ofTenant under this Section 2(d) will be subject to the requirements ofapplicable building codes and zoning requirements so as not to interfere withLandlord’s obtaining of a certificate of occupancy for the Premises. Landlordhas the right to impose such additional conditions on Tenant’s early entry asLandlord, in its sole discretion, deems appropriate, and will further have theright to require that Tenant execute an early entry agreement containing suchconditions prior to Tenant’s early entry.

 

2.             Thefollowing paragraph is added to the Lease as Section 2(e):

 

(e)           Option to Extend Term.  Provided that no event of default has occurredand is continuing beyond any applicable cure period, Tenant shall have one (1) optionto renew this Lease for one (1), additional five (5) year term (the “ExtendedTerm”) by giving written notice (“Tenant’s Extension Notice”) to Landlord atleast six (6) months prior to the expiration of the Primary Lease Term.The Extended Term shall be on the same terms, conditions, and rentals set forthin the Lease, except (i) Tenant shall

 

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| Renewal Option:              |   |
|------------------------------|--------|
|                         |
| Amount of Security  Deposit: |   |
|                              |        |  |

 

2.             The Lease representsthe entire agreement between Landlord and Tenant and has not been modified oramended except as indicated above.

 

3.             The Lease (modifiedas indicated above) is presently in full force and effect in accordance withits terms and Tenant has accepted the Premises.

 

4.             All rent andadditional rent payable under the Lease as of the date of this certificate hasbeen paid in full and no rent or additional rent to become payable under theLease has been paid more than 30 days in advance.

 

5.             No options topurchase or tights of first refusal are contained in the Lease, and there areno other agreements between Landlord and Tenant, oral or written, regarding thePremises or the Property, except as stated in the Lease.

 

6.             To the best of Tenant’sknowledge, no party to the Lease is in default thereunder, and no event hasoccurred which, with the giving of notice or the passage of time, or both,would constitute a default thereunder.

 

7.             Tenant has nocounterclaims, liens, defenses or offsets to its obligations under the Lease orto the enforcement of any of the Landlord’s rights thereunder, and Tenant hasno outstanding claim for credit reimbursement on account of Tenant’simprovements to the Premises.

 

8.             Landlord hascompleted all alterations, additions, painting and refurbishing to the Premisesand the Property required to be performed by Landlord, and there are no rentconcessions, rebates, free rents or similar inducements except as set forth inthe Lease.

 

9.             The Lease is subjectand subordinate to any and all existing and future mortgages and any groundlease of the Premises.

 

10.           **[USE THIS PROVISION IF ESTOPPEL FOR LENDER.]** Tenantacknowledges that if Lender succeeds to the interest of Landlord under theLease, Lender shall not be liable for any act or omission of any prior landlord(including Landlord), liable for the return of any advance rental deposit or anysecurity deposit (unless such sums have actually been received by Lender assecurity for Tenant’s performance under the Lease), subject to any offset ordefense which Tenant may have against any such prior landlord or bound by anyrent or additional rent Tenant may have paid for more than the current month,or bound by any assignment, surrender, termination, cancellation, waiver,release, amendment or modification of the Lease not expressly permitted by theLease made without its express written consent. Notwithstanding the foregoing,provided that Tenant is not then in default under the terms of the Lease andthat

 

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Tenant has not previouslyassigned the Lease or sublet the Premises, by operation of law or otherwise, ifLender succeeds to the interest of Landlord under the Lease and Lender has notactually received the Security Deposit paid by Tenant to Landlord under Section 3(b) ofthe Lease, Lender shall, on the first day of the last month of the Lease Term,credit the amount of the Security Deposit towards the Base Rent due from Tenantfor such month.

 

11.                                 **[USE THIS PROVISION IF ESTOPPEL FOR LENDER.]**  If Lender succeeds to the interest of Landlordunder the Lease by any means, Tenant agrees to attorn to Lender and be bound toLender under all the terms of the Lease on the condition that Lender does notdisturb the possession of the Tenant under the Lease if the Lease is in fullforce and effect and the Tenant is not then in default under the Lease.

 

Tenant acknowledges thatPurchaser and Lender have requested this certificate in connection with aproposed purchase and financing of the Property, and that Purchaser and Lendermay rely on the information set forth in this certificate.

 

 
| TENANT: | MCFSA LTD., a Texas  limited partnership d/b/a  Metroplex Control Systems |
|---------|---------------------------------------------------------------------------|
|    |                                                                      |
|    | By:                                                                       | Metroplex Commercial  Fire & Security  Alarms, Inc., its general partner |
|    |
|    |
|    | By:                                                                       |   |
|    | Name:                                                                     |   |
|    | Its:                                                                      |   |
|    |                                                                      |   |   |   |
| Dated:  |                                                                      |   |   |   |
|         |                                                                           |  |  |  |  |  |  |

 

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affected. However, if forany reason the Leasehold Improvements are not complete within six (6) monthsfollowing the Commencement Date (as such date may have been extended by anyother provision of this Lease), Tenant’s Rent shall be abated until such timeas the Leasehold Improvements are substantially complete.

 

7.3.                              TenantDelays.  Except for delays caused bythe acts or omissions of Landlord or by events of Force Majeure, no delays incompletion of the Leasehold Improvements for any reason whatsoever shallpostpone the Commencement Date. Specifically, without limiting the generalityof tie foregoing, the Commencement Date shall not be postponed on account ofdelays caused by Tenant’s requirements for the Leasehold Improvements, byshortages, by unavailability of long lead procurement items of unusual ornonstandard materials required for the Leasehold Improvements, or on account ofany other delay caused by Tenant.

 

8.                                       MISCELLANEOUS.

 

8.1.                              Ownershipof Improvements.  Tenant acknowledgesand agrees that, subject to Section 8 of the Lease, any and allconstruction, other leasehold improvements and fixtures, at any timeconstructed, placed, or maintained upon the Premises whether or not paid for byTenant shall be and remain the property of Landlord, or of Landlord’s successorsor assigns.

 

8.2.                              Conflicts. In the event of any conflict between theprovisions of the Lease and the provisions of this Work Letter, the provisionsof the Lease will control.

 

8.3.                              Effectof Landlord Approval.  No approval byLandlord of any drawings, plans, or specifications that are prepared inconjunction with construction of the Leasehold Improvements in the Premiseswill constitute a representation or warranty by Landlord as to the adequacy orsufficiency of such drawings, plans or specifications, or the improvements towhich they relate, for any use purpose of condition, including conformity toany applicable codes or laws, but such approval will merely be the consent ofLandlord to the construction or installation of improvements in the Premises,according to said drawings, plans, or specifications.

 

[REMAINDER OF PAGEINTENTIONALLY LEFT BLANK]

 

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have no further right ofrenewal after the Extended Term prescribed above, and (ii) the rental ratefor the Extended Term shall be the then prevailing Market Rate (defined below).Upon receipt of Tenant’s Extension Notice, Landlord shall have twenty (20) daysin which to respond in writing to Tenant with the then prevailing Market Rate. **“Market Rate”** shall be equal to whatever lease rates (pluswhatever periodic adjustments) Landlord is quoting to prospective tenants fornew leases of comparable space in the Project at the time of Tenant’s ExtensionNotice, or if no comparable space exists in the Project, then whatever is thenbeing quoted to prospective tenants for new leases of reasonably comparativespace in reasonably comparable office buildings within the same generalgeographic area as the Project, taking into account any concessions or tenantimprovement allowances then being given. Notwithstanding the above provisionsto the contrary: (a) in no event will the lease rental rate for theExtended Term be less than the annual rent and monthly installments due in thelast year of the Primary Lease Term; and (b) if Tenant has not agreed inwriting to accept the Market Rate before ninety (90) days prior to theexpiration of the Primary Lease Term, Landlord at its option may terminate theLease as of the expiration of the Primary Lease Term. If Landlord has notexercised the option contained in subpart (b) of the immediately precedingsentence, but Tenant has not agreed in writing to accept the Market Rate priorto the expiration of the Primary Lease Term, the Lease shall terminate at theexpiration of the Primary Lease Term.

 

2

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**EXHIBIT A**

** **

**PREMISES**

 

A-1

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**EXHIBIT B**

** **

**LEGALDESCRIPTION OF THE PROJECT**

** **

Lot 4, Block 1,Arapahoe Airport Center Joint Venture Filing No. 2,TOGETHER with perpetual non-exclusive easements over and across a portion ofLot 3, Block 1, Arapahoe Airport Center Joint Venture Filing No. 2 ascreated by Easement Agreement dated August 16, 1983, recorded August 18,1983 in Book 3945 at Page 238, and Corrective Addendum to EasementAgreement recorded October 7, 1987 in Book 5281 at Page 245, County ofArapahoe, State of Colorado.

 

B-1

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**EXHIBIT C**

** **

**ESTOPPELAND COMMENCEMENT DATE CERTIFICATE**

 

THIS ESTOPPEL AND COMMENCEMENT DATE CERTIFICATE (“Certificate”)is executed this           dayof                   , 2002, by WKB VALUEPARTNERS, a Delaware limited partnership (“Landlord”) and MCFSA, LTD., a Texaslimited partnership d/b/a Metroplex Control Systems (“Tenant”) with respect toand forming a part of that certain Arapahoe Business Park I Lease Agreement (“Lease”)dated                                            ,2002, for the premises commonly known as 7388 South Revere Parkway, Units 601through 604, Centennial, Colorado 80112 (“Premises”).

 

RECITALS

 

A.            Theparties desire to reaffirm or amend and certify to certain provisions of theLease.

 

B.            Theparties desire that the matters set forth herein be conclusive and binding onthe parties.

 

NOW, THEREFORE, for goodand valuable consideration, the receipt and sufficiency of which are herebyacknowledged, the parties agree as follows:

 

1.             The LeaseCommencement Date is deemed and agreed to be                                 ,2003, and the Lease Expiration Date is agreed and deemed to be                                    ,2008, unless sooner terminated, as provided in the Lease.

 

2.             Tenant’sfirst installment of Monthly Base Rent in the amount of                                                  Dollars ($     ) for the period of                                                        (is due on) (was paid on)                                            ,2003.

 

3.             Tenant’sfirst installment of Tenant’s Pro Rata Share of Operating Expenses in theamountof                                                                            Dollars ($       ) (is due on) (was paidon)                        ,2003.

 

4.             Byexecution hereof, Tenant acknowledges and agrees that all improvements or otherwork required of Landlord has been satisfactorily performed and Tenant herebyaccepts the Premises in full compliance with the terms and conditions of theLease.

 

5.             Except as may beamended herein, all terms and conditions of the Lease shall continue in fullforce and effect and are hereby republished and reaffirmed in their entirety.

 

6.             This Certificateshall be binding upon and may be relied upon by the parties hereto and theirrespective legal representatives, successors and assigns.

 

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IN WITNESS WHEREOF, the parties have executed thisCertificate as of the day and year first above written.

 
| LANDLORD: | WKB VALUE PARTNERS, a  Delaware limited  Partnership                      |
|-----------|---------------------------------------------------------------------------|
|      |                                                                      |
|      | By:                                                                       | KOLL BREN SCHREIBER  REALTY  ADVISORS, INC., a Delaware corporation,  its Authorized Managing Agent |
|      |                                                                      |   |
|      |                                                                      |   |
|      | By:                                                                       |   |
|      |                                                                      | Steve Jarecki, Senior  Vice President |
|      |                                                                      |   |
| TENANT:   | MCFSA LTD., a Texas  limited partnership d/b/a  Metroplex Control Systems |
|      |                                                                      |
|      | By:                                                                       | Metroplex Commercial  Fire & Security  Alarms, Inc., its general partner |
|      |
|      |
|      | By:                                                                       |   |
|      | Name:                                                                     |   |
|      | Its:                                                                      |   |
|           |                                                                           |  |  |  |  |  |  |

 

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**EXHIBIT D**

** **

**GUARANTYOF LEASE**

 

IntentionallyOmitted

 

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**EXHIBIT E**

** **

**RULES ANDREGULATIONS**

 

1.                                       Atall times during the Term of this Lease the Landlord shall have the right byitself, its agents and employees, to enter into and upon the Premises duringreasonable business hours for the purpose of examining and inspecting the sameand determining whether the Tenant shall have complied with his obligationsunder the Lease and the Rules and Regulations contained herein, withrespect to the care and maintenance of the Premises and the repair orrebuilding of the improvements thereon, when necessary.

 

2.                                       Tenantshall not use the name of the Project for any purpose other than Tenant’sbusiness address and shall never use a picture or likeness of the Project orPremises in any advertisement, notice or correspondence without the Landlord’swritten consent thereto. Landlord hereby consents to Tenant’s use of a pictureof the building in which the Premises are located in tenant’s advertisingbrochure and computer website.

 

3.                                       Tenantshall not make or permit any noise, vibration or odor that is objectionable to thepublic, or to other occupants of the Project, to emanate from the Premises andshall not create or maintain a nuisance thereon and shall not disturb, solicitor canvass any occupant and shall not do any act tending to injure thereputation of the Project or the Premises. Nor shall Tenant use the Premisesfor lodging, sleeping, cooking (except normal office kitchen use), or for anyimmoral or illegal purpose or for any purpose that will damage the Project, orthe reputation thereof, or for any purposes other than those specified in thisLease.

 

4.                                       Tenantshall not place or permit any radio antenna, loud speakers, sound amplifiers,or similar devices on the roof or outside of the Premises or Project.Notwithstanding the foregoing, subject to Tenant’s compliance with therequirements of Section 8, above, Tenant may install on the exterior ofthe building in which the Premises are located, a closed circuit televisionsecurity camera, access control card readers, and one fire alarm horn/strobeunit if required by applicable governmental laws, ordinances, codes, orregulations.

 

5.                                       Thesidewalks, entrances, passages, vestibules, stairways, corridors, halls,parking and loading areas must not be obstructed or encumbered or used for anypurpose other than ingress and egress to and from the Premises. No furniture orother items shall be placed in front or back of the Premises, or on/in anysidewalks, entrances, passages, vestibules, stairways, corridors, halls,loading or parking areas. Landlord shall have the right to remove allnon-permitted furniture or other items, without notice to Tenant, and at theexpense of Tenant.

 

6.                                       Supplies,goods, materials, packages, furniture and all such items of every kind are tobe delivered at the entrance point provided therefor, or in such manner as theLandlord may provide and the Landlord is not responsible for the loss or thedamage of any such property notwithstanding such loss or the damage which mayoccur through the

 

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carelessness ornegligence of the employees of the Project.  All such items moved in or out of the Projector Premises shall be done at such time and in such manner as acceptable to theLandlord.

 

7.                                       Tenantshall see that the windows and doors of the Premises are closed and securelylocked before leaving the Project or Premises. Tenant must observe strict careand caution that all water faucets or other apparatus are entirely shut offbefore Tenant or Tenant’s employees leave the Project or Premises and that allelectricity, gas or air shall likewise be carefully shut off, so as to preventwaste or damage, and for any default or carelessness Tenant shall make good allinjuries sustained by Landlord or other Tenants or occupants of the Project orPremises.

 

8.                                       IfTenant elects to install any concession or vending machine in the Premises,such machines and their products shall be limited to the express use of Tenantand its employees and guests. Tenant shall not sell from the Premises thefollowing items: cigars, cigarettes, tobaccos, pipes, candies, newspapers,magazines or greeting cards.

 

9.                                       Landlordreserves the right to designate all sources furnishing sign painting, letteringor awnings and to establish a limitation on sign or awning styles and format.Tenant shall affix no additional signage or awnings not considered Projectstandard, in the Landlord’s discretion, without prior written approval ofLandlord. Landlord shall have the right to remove all non-permitted signs orawnings, without notice to Tenant, and at the expense of Tenant.

 

10.                                 TheLandlord at all times shall have the right to amend, modify or waive any of theforegoing Rules and Regulations and to make such other and future rules andregulations as the Landlord may adopt, provided such changes shall notunreasonably interfere with the Permitted Use of the Premises. Tenant agrees tocomply with all such rules and regulations upon notice to Tenant from Landlordthereof. In the event of any breach of any rules and regulations hereinset forth or any reasonable amendments, modifications or additions hereto,Landlord shall have all remedies in this Lease provided for in the event ofdefault by Tenant.

 

11.                                 Thefailure of the Landlord to seek redress for violation of, or insist upon thestrict performance of any covenants or conditions of this Lease or any of the Rules andRegulations set forth above or hereafter adopted by Landlord, shall not preventa subsequent act, which would have originally constituted a violation, fromhaving all the force and effect of any original violation. The receipt byLandlord of Rent with knowledge of the breach of any covenant of this Lease orbreach of these Rules aid Regulations shall not be deemed a waiver of suchbreach. The failure of Landlord to enforce any of these Rules andRegulations as set forth above or hereafter adopted against Tenant or any othertenant in the Project shall not be deemed a waiver of any such Rules andRegulations.

 

12.                                 Landlordshall not be liable to Tenant for violation of any said Rules andRegulations or the breach of any covenant or condition in any Lease by anyother tenant in the Project.

 

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13.           Noact or thing done or omitted to be done by Landlord or Landlord’s agent duringthe Term of the Lease which is necessary to enforce these Rules andRegulations shall constitute an eviction by Landlord nor shall it be deemed asurrender or acceptance of the Premises, and no agreement to accept suchsurrender shall be valid unless in writing signed by Landlord. No employee ofLandlord or Landlord’s agent shall have any power to accept the keys of thePremises prior to the termination of the Lease. The delivery of keys to anyemployee of Landlord or Landlord’s agent shall not be construed as a terminationof the Lease or a surrender of the Premises.

 

14.           Tenantand its employees, agents and invitees shall park their vehicles only in thoseparking areas designated by Landlord. Tenant shall not permit any vehicle in astate of disrepair (including without limitation, flat tires, out of dateinspection stickers or license plates) in the parking areas. Tenant shall notpark any vehicle, truck, car, trailer or boat in the parking area for longerthan 24 hours without Landlord’s prior written approval. If Tenant or itsemployees, agents or invitees park their vehicles in areas other thandesignated parking areas for longer than 24 hours, Landlord shall have theright without notice to Tenant to remove such vehicle at Tenant’s expense.Tenant shall not permit the washing or repair of any vehicle on the parkingareas.

 

15.           Noanimals, except as required by law, e.g. seeing eye dogs, shall be permitted inor on the Premises or Project.

 

16.           Exceptfor Tenant Alterations consented to by Landlord pursuant to Section 8 ofthe Lease, no additional lock or locks shall be placed by Tenant on any doorsin the Premises without the prior written consent of Landlord.

 

17.           Tenantshall not conduct in or about the Premises or Project any auction, public orprivate, without the prior written consent of Landlord.

 

18.           Tenantshall not allow to be deposited any trash, refuse, cigarettes, or othersubstances of any kind within or without the Premises or Project except inrefuse containers provided therefore. Landlord shall provide appropriate trashbins located outside in the Project for removal of trash from the building andTenant shall perform janitorial trash removal in accordance with Section 7of the Lease. Tenant shall not introduce onto the Project or Premises any itemor substance which might add an undue burden to the cleaning or maintenance ofthe Premises or Project. Tenant shall exercise its best efforts to keep thesidewalks, entrances, passages, courts, lobby areas, garages or parking areas,stairways, vestibules, corridors and halls in and about the Premises andProject clean and free from rubbish.

 

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**EXHIBIT F**

** **

**WORKLETTER AGREEMENT**

** **

(ImprovementsBased on Space Plan)

 

This Exhibit “F” is attached to and made a partof that certain Lease, dated November 19, 2002 by and between WKB ValuePartners, L.P. (“Landlord”), and MCFSA, LTD., a Texas limited partnership d/b/aMetroplex Control Systems (“Tenant”), covering the premises known as: 7388South Revere Parkway, Units 601 through 604, Centennial, Colorado 80112.

 

I.                                         TERMS:The following terms are defined in this Work Letter:

 

1.1.          **“Building”**means the building or buildings in the Project in which the Premises arelocated.

 

1.2.          **“Building StandardMaterials”** means the quantity, quality, and style of materials,finishes, and workmanship to be used during construction of the LeaseholdImprovements, which may be specified or changed from time to time by Landlord,in Landlord’s sole discretion, for the Building.

 

1.3.          **“Construction Documents”**means complete construction plans and specifications, including architectural,mechanical and electrical plans and specifications, prepared by Landlord’sArchitect for the Leasehold Improvements, based on the Space Plan.

 

1.4.          **“Landlord’s Architect”**means an architect or an engineer chosen by Landlord, in Landlord’s solediscretion, for the preparation of the Construction Documents.

 

1.5.          **“Leasehold Improvements”**means all alterations, leasehold improvements, and installations to be constructedor installed by Landlord for Tenant in the Premises according to this WorkLetter.

 

1.6.          **“Space Plan”**means the schematic space plan for the Leasehold Improvements to the Premisesdated November 8, 2002, and prepared by McDermott Planning & Design, Inc.,including a full and accurate description of the size and location of allpartitions and doors, as well as equipment that could affect structuralcomponents, service systems or facilities of the Building.

 

Any capitalized term used in this Work Letter and notdefined herein shall have the meaning set forth for such term in the Lease.

 

2.             CONSTRUCTIONDOCUMENTS.  Landlord’s Architect willprepare all necessary Construction Documents and Tenant will cooperate withLandlord and Landlord’s Architect by providing all design information necessaryfor the preparation of the Construction Documents. Promptly after receipt ofall design information, Landlord’s Architect will prepare proposed ConstructionDocuments. Within three (3) business days after receipt of the proposedConstruction Documents, Tenant will either approve the same in writing orprovide Landlord

 

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with written notice (“Noticeof Objection”), specifying how the proposed Construction Documents areinconsistent with the Space Plan or the design information provided by Tenant,and how the Construction Documents must be changed in order to overcome Tenant’sobjections. Each day following the third business day after the proposedConstruction Documents are submitted to Tenant until Tenant either approvesthem or delivers such Notice of Objection will be a day of Tenant delaypursuant to Section 7.3, below. Upon receipt of Tenant’s Notice ofObjection, Landlord’s Architect will prepare revised Construction Documents,and upon submission of any further revisions, the procedures above will berepeated. If the revised Construction Documents, or any further revisions, areconsistent with the design information and all requirements identified in Tenant’sprior Notice of Objection, then each day following Landlord’s receipt of Tenant’ssubsequent Notice of Objection until the day on which Landlord receives Tenant’swritten approval of the revised Construction Documents will be a day of Tenantdelay pursuant to Section 7.3, below.

 

3.             CONSTRUCTIONOF LEASEHOLD IMPROVEMENTS.  On orbefore the Commencement Date set forth in the Lease, Landlord will, at Landlord’scost and expense, cause the Leasehold Improvements to be constructed in thePremises using Building Standard Materials, in a good and workmanlike manner,free of any and all mechanic’s or other liens, substantially in accordance withthe Space Plan and the Construction Documents. The cost of any changes to theSpace Plan or Construction Documents made at Tenant’s request, and anyincreased cost of the Leasehold Improvements resulting therefrom, shall be paidby Tenant to Landlord within ten within ten (10) days of Landlord’sprovision to Tenant of an invoice therefor.

 

4.             ACCEPTANCEOF LEASEHOLD IMPROVEMENTS: COMMENCEMENT DATE.  Five (5) days prior to the anticipatedcompletion date of the Leasehold Improvements, Landlord and Tenant shallinspect the Leasehold Improvements and develop the “punch list” items to becompleted. Landlord will cause said items to be corrected or completed withinten (10) business days after the punch list inspection, or as soon asreasonably practicable thereafter. Landlord will not be responsible for anyitems of damage to the Premises caused by Tenant, its agents, employees,independent contractors, or suppliers. No promises to alter, remodel, orimprove the Premises or Building and no representations concerning thecondition of the Premises or Building have been made by Landlord to Tenantother than what has been expressly identified in the Lease or this Work Letter.

 

5.             CHANGEORDERS.  Tenant may request changesin the Leasehold Improvements, to be made at Tenant’s expense, duringconstruction by providing written request therefor to Landlord. All suchchanges will be subject to Landlord’s prior written approval according to Section 6below. Prior to commencing any change requested by Tenant, Landlord willprepare and deliver to Tenant, for Tenant’s approval, a change orderidentifying the total costs of such change, including all architectural fees,engineering fees, consultant fees, contractor fees, and an amount sufficient toreimburse Landlord for overhead and related expenses incurred in conjunctionwith the change order, provided, however, that such Landlord overhead fees willnot exceed 15% of the costs associated with the change order. If Tenant failsto approve and pay for such change order within five (5) business daysafter delivery by Landlord, Tenant will be deemed to have withdrawn theproposed change and Landlord will not proceed to perform the

 

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change. Upon Landlord’sreceipt of Tenant’s approval and payment, Landlord will proceed to perform thechange.

 

6.                                       LANDLORD’SAPPROVAL.  All ConstructionDocuments, and change orders are expressly subject to Landlord’s prior writtenapproval. Landlord may withhold its approval of any such items that requirework which:

 

(a)           exceeds or adversely effects thecapacity or integrity of the Building’s structure, or any of its heating,ventilating, air conditioning, plumbing, mechanical, electrical,communications, life safety, or other systems;

 

(b)           is not approved by the holder of anyencumbrance;

 

(c)           would not be approved by a prudentowner of property similar to the Building;

 

(d)           violates any agreement, includingother leases, which may affect the Building or bind the Landlord;

 

(e)           Landlord reasonably believes willincrease the cost of operating or maintaining any of the Building’s systems;

 

(f)            Landlord reasonably believes willreduce the market value of the Premises or Building upon expiration of theTerm;

 

(g)           does not conform to applicablebuilding code or is not approved by any governmental authority havingjurisdiction over the Premises or Building;

 

(h)           does not meet or exceed BuildingStandard Materials; or

 

(i)            Landlord reasonably believes willinfringe upon the architectural or historical integrity of the Building.

 

7.                                       DELAY.

 

7.1.          Force Majeure.**“Force Majeure”** as used in this Work Letter means a strike orother labor trouble, governmental preemption of priorities or other delayscaused by a national or other public emergency, or other cause, whether similaror dissimilar to the above, beyond Landlord’s reasonable control that delaysthe completion of the Leasehold Improvements. Upon occurrence of an event ofForce Majeure, Landlord shall within three (3) business days give noticeto Tenant, specifying the event of Force Majeure and the anticipated delay incompletion of Leasehold Improvements resulting therefrom. The Commencement Dateshall be postponed by the number of days that completion of the LeaseholdImprovements was actually delayed by an event of Force Majeure.

 

7.2.          Other Delays.  If Landlord should for any reason fail tocomplete the Leasehold Improvements on or before the Commencement Date,Landlord shall not be deemed to be in default or otherwise liable in damages toTenant, nor shall the Term of this Lease be

 

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