**Exhibit10.37**

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**NET LEASE AGREEMENT**

**SEVENTEENTH STREET PLAZA REALTY HOLDING COMPANY,**

**a****Delaware****Corporation,**

**Landlord**

**and**

**EVERGREEN ENERGY INC.,a Delaware corporation**

 

**Tenant**

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**Dated:  November 17, 2006**

 

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**NET LEASE AGREEMENT**

**between**

**SEVENTEENTH STREET PLAZA REALTY HOLDING COMPANY**

**and**

**EVERGREEN ENERGY INC.**

 
| **Table of Contents** |
|-----------------------|
| SECTION               | ** ** | ** ** | **PAGE** |
| 1.                    | DEFINITIONS |   | 1 |
| 2.                    | PREMISES |   | 2 |
| 3.                    | TERM |   | 2 |
| 4.                    | RENTAL |   | 3 |
| 5.                    | ADJUSTMENT OF RENT |   | 3 |
| 6.                    | MISCELLANEOUS TAXES |   | 6 |
| 7.                    | USE |   | 6 |
| 8.                    | PREPARATION FOR OCCUPANCY |   | 7 |
| 9.                    | SERVICES |   | 7 |
| 10.                   | MECHANIC’S LIENS |   | 9 |
| 11.                   | QUIET ENJOYMENT |   | 9 |
| 12.                   | CERTAIN RIGHTS RESERVED TO THE LANDLORD |   | 9 |
| 13.                   | ESTOPPEL CERTIFICATE BY TENANT |   | 10 |
| 14.                   | WAIVER OF CLAIMS AND INDEMNITY |   | 10 |
| 15.                   | INSURANCE |   | 11 |
| 16.                   | HOLDING OVER |   | 12 |
| 17.                   | ASSIGNMENT AND SUBLETTING |   | 12 |
| 18.                   | CONDITION OF PREMISES |   | 15 |
| 19.                   | RULES AND REGULATIONS |   | 15 |
| 20.                   | REPAIRS |   | 18 |
| 21.                   | UNTENANTABILITY |   | 18 |
| 22.                   | EMINENT DOMAIN |   | 18 |
| 23.                   | TENANT’S DEFAULT AND LANDLORD’S REMEDIES |   | 19 |
| 24.                   | SALE AND ASSIGNMENT |   | 21 |
| 25.                   | SUBORDINATION OF LEASE |   | 22 |
| 26.                   | NOTICES AND CONSENTS |   | 22 |
| 27.                   | SPRINKLERS |   | 22 |

 

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| 28. | NO ESTATE IN LAND                   |   | 22 |
|-----|-------------------------------------|--------|----|
| 29. | INVALIDITY OF PARTICULAR PROVISIONS |   | 22 |
| 30. | WAIVER OF BENEFITS                  |   | 23 |
| 31. | WAIVER OF TRIAL BY JURY             |   | 23 |
| 32. | SECURITY DEPOSIT                    |   | 23 |
| 33. | SUBSTITUTE PREMISES                 |   | 23 |
| 34. | PARKING                             |   | 23 |
| 35. | BROKERAGE                           |   | 23 |
| 36. | ENVIRONMENTAL PROVISIONS            |   | 24 |
| 37. | TELECOMMUNICATIONS                  |   | 26 |
| 38. | ERISA REPRESENTATION                |   | 28 |
| 39. | SPECIAL STIPULATION                 |   | 29 |
| 40. | EXHIBITS                            |   | 30 |

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### (i)            Exhibit A - Lease CommencementDate Statement

### (ii)           Exhibit B - WorkletterAgreement

### (iii)          Exhibit C - Cleaning Schedule

### (iv)          Rider to Lease

 

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**NETLEASE AGREEMENT**

THIS LEASE, madethe 17th day of November, 2006, between SEVENTEENTHSTREET PLAZA REALTY HOLDING COMPANY, a Delaware corporation, having itsprincipal place of business at 245 Park Avenue, Second Floor, New York, NewYork 10167 (the “Landlord”), and EVERGREEN ENERGY INC., a Delaware corporation,having its principal place of business at 55 Madison Street, Suite 500, Denver,Colorado 80206 (the “Tenant”).

**LEASESUMMARY:**
| 2.     |   | Premises:                                                                                                                 |                                                                                                                                                                                                                                                                                                                                      | Suite 1300 and Suite 1400, located on the 13th and 14th floors of the  Building and consisting of approximately 32,727 square feet of Rentable Area  Leased. |
|--------|--------|---------------------------------------------------------------------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      |                                                                                                                                                                   |
| 3.     |   | Term:                                                                                                                     |                                                                                                                                                                                                                                                                                                                                      | Ten (10) years and three (3) months.                                                                                                                                   |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      |                                                                                                                                                                   |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      | Commencement Date: March 1, 2007 (as the same may be  adjusted by the terms of Section 3 of this Lease)                                                                |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      |                                                                                                                                                                   |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      | Expiration Date: May 31, 2017 (as the same may be  adjusted by the terms of Section 3 of this Lease)                                                                   |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      |                                                                                                                                                                   |
| 4.     |   | Rental:                                                                                                                   |                                                                                                                                                                                                                                                                                                                                      | Annual Base Rental: See Rider Paragraph 1, attached  hereto.                                                                                                           |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      |                                                                                                                                                                   |
| 5.     |   | Adjustment of Rent:                                                                                                       |                                                                                                                                                                                                                                                                                                                                      | Tenant’s Proportionate Share: 4.909%                                                                                                                              |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      |                                                                                                                                                                   |
| 26.    |   | Notice to Landlord:                                                                                                       | Notice to Tenant:                                                                                                                                                                                                                                                                                                                         |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      |
|   |   | J.P. Morgan Investment Management, Inc.                                                                                   | Prior to the Commencement Date:                                                                                                                                                                                                                                                                                                           |
|   |   | 245 Park Avenue, Second Floor                                                                                             |                                                                                                                                                                                                                                                                                                                                      |
|   |   | New York, New York 10167                                                                                                  | 55 Madison Street, Suite 500                                                                                                                                                                                                                                                                                                              |
|   |   | Attention:   Asset Manager                | Denver, Colorado 80206                                                                                                                                                                                                                                                                                                                    |
|   |   |                                                                                                                      | Attn:  Chief  Operating Officer                                                                                                                                                                                                                                                                                                      |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      |
|   |   |                                                                                                                      | After the Commencement Date:                                                                                                                                                                                                                                                                                                              |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      |
|   |   |                                                                                                                      | 1225 — 17th Street, Suite 1400                                                                                                                                                                                                                                                                                                  |
|   |   |                                                                                                                      | Denver, Colorado 80202                                                                                                                                                                                                                                                                                                                    |
|   |   |                                                                                                                      | Attn:  Chief  Operating Officer                                                                                                                                                                                                                                                                                                      |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      |
|   |   |                                                                                                                      | With a copy to:                                                                                                                                                                                                                                                                                                                           |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      |
|   |   |                                                                                                                      | 1225 — 17th Street, Suite 1400                                                                                                                                                                                                                                                                                                  |
|   |   |                                                                                                                      | Denver, Colorado 80202                                                                                                                                                                                                                                                                                                                    |
|   |   |                                                                                                                      | Attn:  General  Counsel                                                                                                                                                                                                                                                                                                              |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      |
| 32.    |   | Security Deposit:                                                                                                         | Letter of Credit as more fully set forth in  Paragraph 7 of the Rider, attached hereto.                                                                                                                                                                                                                                                   |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      |
| 34     |   | Parking:                                                                                                                  | Tenant shall be entitled to one (1) unreserved space  for every one thousand (1,000) rentable square feet leased; Tenant may  allocate up to eight (8) of the foregoing spaces as reserved spaces as more  fully set forth in Paragraph 34 hereof, but in no event may Tenant utilize more  parking spaces than 1:1,000 in the aggregate. |
|   |   |                                                                                                                      |                                                                                                                                                                                                                                                                                                                                      |
|   |   | Rider:                                                                                                                    | See attached Rider for specific terms.                                                                                                                                                                                                                                                                                                    |
|        |        |                                                                                                                           |                                                                                                                                                                                                                                                                                                                                           |                                                                                                                                                                        |  |  |

 

**W I T N E S S E T H:**

**1.             DEFINITIONS. **The terms defined in thissection shall, for all purposes of this Lease, and all agreements amending orsupplementing this Lease, have the meanings herein specified unless the contextotherwise requires.

 

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## (a)           The “Building” shall mean the commercial office structuretogether with all appurtenant plazas, subgrade areas, garages and otherimprovements, situated on the Land, known as Seventeenth Street Plaza,1225 Seventeenth Street, Denver, Colorado.

## (b)           The “Land” shall mean the real property whose legaladdress is Lots 1 to 32 inclusive, Block 67, together with vacatedalley in said Block 67, East Denver, State of Colorado.  The “Property” shall mean the Building andthe Land.

## (c)           “Rentable Area” shall mean the total number of square feetof rentable floor area of office space in the Building; and that number is 666,653square feet.

## (d)           “Rentable Area Leased” shall mean the total number ofsquare feet of rentable floor area of office space in the Premises, and thatnumber is 32,727 square feet.

## (e)           Tenant’s “Proportionate Share” shall be that percentagethe Rentable Area Leased is of the Rentable Area.  Such percentage is 4.909%.

**2.             PREMISES. **In consideration of therents, charges, covenants and agreements herein contained, Landlord herebyleases to Tenant and Tenant hereby hires and takes from Landlord the spacereferred to as Suite 1300 and Suite 1400, located on the 13th and 14th floors of theBuilding (the “Premises”), together with the non-exclusive right to use,in common with others, the public areas of the Building including, withoutlimitation, the lobby, stairs, elevators, entrances and loading docks.  No easement for air or light or view isincluded with the Premises.  Landlord andTenant agree that the rentable square footage of the Premises is square feet ofrentable area, and waive and release any right to assert or claim otherwise,unless otherwise expressly set forth to the contrary herein.

**3.             TERM. **The term (hereinaftercalled the “Term”) of this Lease shall commence on the earlier of occupancy ofthe Premises by Tenant, or substantial completion of the work to be performedby Landlord in accordance with Section 8 hereof, the target date (“TargetDate”) for which is March 1, 2007, subject to items which will not materiallyaffect the use of the Premises for the use in accordance with Section 7here of, and extension and earlier termination as hereinafter provided.  Prior to occupying the Premises, and afterreceipt thereof from Landlord, Tenant shall execute and deliver to Landlord aletter in the form attached hereto and made a part hereof as Exhibit ”A”,acknowledging the commencement date (hereinafter called the “Commencement Date”)and the expiration date (hereinafter called the “Expiration Date”) of the Termfor the Premises and, if applicable and unless agreed to otherwise, any ExcessAllowance owed pursuant to the Lease for Tenant Improvements.  In the event the Tenant does not eitherprovide to Landlord such letter or provide to Landlord written objections tosuch letter within thirty (30) days after the later of the date of receiptthereof from Landlord or that date that Tenant first occupies the Premises,then the Commencement Date shall be deemed to be the date set forth by Landlordin such commencement letter.  However, inthe event Landlord shall be delayed in substantially completing said work as aresult of:

## (a)           Tenant’s delay or failure to meet with the space planneron or before the dates specified in the Workletter Agreement, or other delaysdeemed caused by Tenant as described therein, (marked Exhibit ”B” andattached hereto) or delays due to changes in or additions to plans forimprovements to the Premises (other than as allowed in the WorkletterAgreement); or

## (b)           Tenant’s requirement of Special Work or materials,finishes or installations other than Building Standard Improvements as setforth in the Workletter Agreement; or

## (c)           The performance of the work by a person, firm orcorporation employed by Tenant or the failure to complete such work by saidperson, firm or corporation; then the commencement of the Term of the Lease andthe payment of rent thereunder shall be accelerated by the number of days ofsuch delay (“Tenant’s Delay”).

Landlord shall usereasonable efforts to give Tenant at least thirty (30) days’ notice of the dateupon which, in Landlord’s opinion, the Commencement Date shall occur, providedthat Landlord shall have no liability in the event the Commencement Date shall 

 

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notoccur on the date specified, and failure to give possession on the datespecified shall in no way affect the validity of this Lease or the obligationsof the Tenant hereunder.

Expiration Date.  Unless otherwise terminated herein, if theTerm commences on a date other than the first day of a month, it shall expireat the end of the day ten (10) years and three (3) months from the last day ofthe month in which it commenced.  If theTerm commences on the first day of a month, it shall expire at the end of theday ten (10) years and three (3) months from the last day of the calendar monthpreceding the Commencement Date.  Theexpiration date is hereinafter referred to as the “Expiration Date”.

**4.             RENTAL**.

## (a)           Tenant agrees to pay to Landlord for use and occupancy ofthe Premises, lawful money of the United States, payable without notice ordemand in advance on the first day of each calendar month during the term, aninitial annual base rental (hereinafter, “Initial Annual Base Rental”) in theamounts set forth in Paragraph 1 of the Rider attached hereto.  Tenant shall also pay the Landlord, at thetimes and in the manner provided in Section 5, the Operating Costs and RealEstate Taxes (as defined therein).

## (b)           All payments of Annual Base Rental required to be madeunder this Section 4, or payments to be made by Tenant under any othersection of this Lease (hereinafter designated “Additional Rent”), shall, exceptto the extent expressly provided to the contrary herein, be made without anysetoff or counterclaim whatsoever, and shall be made payable to and sent toLandlord at the management office of Landlord in the Building or such otherplace as Landlord may designate.

## (c)           Annual Base Rental and Additional Rent are sometimeshereinafter collectively referred to as “Rent”.

The first monthlyinstallment of Annual Base Rental shall be paid on the Commencement Date,except that in the event the Commencement Date shall be a date other than thefirst day of the calendar month, then Tenant shall pay on the Commencement Datean amount equal to such portion of an equal monthly installment as the numberof days from the Commencement Date to the end of the calendar month in whichthe Commencement Date occurs bears to the total number of days in said calendarmonth, and said payment shall represent the pro-rata Annual Base Rentalfrom the Commencement Date to the end of such calendar month.

**5.             ADJUSTMENT OF RENT**.

## (a)           Payment of Operating Costs and Real Estate Taxes.

### (i)            Prior to theCommencement Date, Landlord shall provide to Tenant an estimate of the amountowed for Tenant’s Proportionate Share of Operating Costs and Real Estate Taxes(as defined herein).  Tenant, withoutfurther notice, shall pay to Landlord in monthly installments one-twelfth (1/12th) of such estimatesimultaneously with Tenant’s payment of Annual Base Rental.  Any failure by Landlord to deliver any suchestimate shall not relieve Tenant of its obligations to pay Operating Costs andReal Estate Taxes as herein provided. Landlord shall provide an adjusted estimate to Tenant during the firstquarter of every subsequent calendar year during the Term.  Upon receipt of any such adjusted estimate,Tenant shall pay any true-up amounts (the difference between the amount paidprior to the adjusted estimate and the adjusted estimate) and one-twelfth (1/12th) of such adjusted estimatesimultaneously with Tenant’s payment of Annual Base Rental.  If, at any other time during the Term, itreasonably appears to Landlord that the Operating Costs or Real Estate Taxesfor the current calendar year will vary from Landlord’s estimate, then Landlordmay readjust the estimate for Operating Costs or the Real Estate Taxes for suchcalendar year by notice delivered to Tenant, and subsequent payments by Tenantfor such calendar year will be based upon such estimate.

### (ii)           Landlord shalldeliver to Tenant, within one hundred twenty (120) days after the end of eachcalendar year during the Term, unless delayed by causes beyond Landlord’s reasonablecontrol, a written statement 

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### (“Statement”) setting out in reasonable detail the amount of OperatingCosts and Real Estate Taxes for the preceding calendar year.  If the aggregate of monthly installments ofOperating Costs and/or Real Estate Taxes actually paid by Tenant to Landlorddiffer from the amount due in the Statement, then, as the case may be, Tenantshall pay the difference to Landlord or Landlord shall issue a credit to Tenantagainst the Rent remaining to be paid hereunder for the difference, or if noRent then remains to be paid, refund the difference to Tenant, without interestor penalty, within thirty (30) days after the date of delivery of theStatement.  However, Landlord’s failureto provide said Statement by the date set forth herein shall in no way excuseTenant from its obligation to pay its pro-rata share of Operating Costs andReal Estate Taxes or constitute a waiver of Landlord’s right to bill andcollect such pro-rata share of Operating Costs and Real Estate Taxes from Tenant.

### (iii)          In the event Tenantdisputes the amounts set forth in the Statement set forth in Section 5(a)(ii)above, upon no less than ten (10) business days’ prior written notice toLandlord, Tenant or Tenant’s in-house employees, or external auditors who arecertified public accountants shall have the right to examine Landlord’s booksand records as to amounts due in the Statement. Any examination is subject to a confidentiality agreement executed byTenant and Tenant’s in-house employees or external auditors, as applicable, andshall occur at the location where said records are maintained (if such recordsare generally maintained at the Building or elsewhere in the Denver, Coloradometropolitan area, they will be made available in the Denver, Colorado metropolitanarea) during normal business hours. Tenant shall have ninety (90) calendar days after delivery of theStatement set forth in Section 5(a)(ii) above to provide Landlord with writtennotice of exception of any item in the Statement.  Unless Tenant provides said written notice ofexception detailing any disputed charges to Landlord within said time, Tenantshall conclusively be deemed to have accepted the accuracy of the Statement andto have waived any right to claim any readjustment in connectiontherewith.  If Tenant makes such timelywritten notice of exception, a statement as to the proper amount of any itemset forth in Tenant’s written notice of exception shall be made by a reputableaccounting firm and paid for by Tenant. Under no circumstances shall Tenant conduct a review of Landlord’s booksand records whereby the person or firm performing the review operates on acontingency fee or similar payment arrangement or if there exists an uncuredEvent of Default as defined herein, by Tenant.

## (b)           Operating Costs:

### (i)            Operating Costsshall be deemed to include all costs which, for federal tax purposes, may beexpensed rather than capitalized and which Landlord will incur in owning,maintaining and operating the Building or the Land, exclusive of Real EstateTaxes, as hereinafter defined, mortgage interest and depreciation.  Without limitation to the foregoing, the term“Operating Costs” shall mean those costs incurred during each year of the Termin respect of the operations and maintenance of the Land and the Building inaccordance with accepted principles of sound management and accountingpractices as applied to the operation and maintenance of first class officebuildings in Denver, including the cost of or charges for the following by wayof illustration but without limitation: landscaping and snow removal, water and sewer, insurance premiums,licenses, permits and inspections, heat, light, electrical power, steam,security, janitorial services, maintenance of and repairs to equipment servicingthe Land or the Building (including costs associated to ensure the accurateprocessing of data), window cleaning, refuse removal services, airconditioning, supplies, materials, equipment and tools, administration andmanagement of the Land and the Building, changing the Building’s electricservice provider and associated installation, maintenance, repair and servicecosts, personal property taxes on the personal property used in the operationof the Land or the Building, the cost, as reasonably amortized by Landlord withinterest at One and One-Half Percent (1-1/2%) above the prime rateannounced from time to time by the Wells Fargo Bank of Denver, N.A., or itssuccessor, on the unamortized amount of any capital improvement made after 

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### the Commencement Date which reduces Operating Costs but in an amountnot to exceed such reduction for the relevant year, and the cost of contestingby appropriate proceedings the applicability to the Building or the Land or thevalidity of any statute, ordinance, rule or regulation affecting the Buildingand the Land which might increase Operating Costs.  If the occupancy level in the Building isless than 95%, Operating Costs will be adjusted to reflect the Building at a95% occupancy level.  Operating Costsshall not include costs for repairs or other work occasioned by fire, windstormor other insured casualty to the extent recovered by insurance proceeds; costincurred in leasing or procuring new tenants (i.e., lease commissions,advertising costs and costs for renovating space for new tenants); legal costsin enforcing the terms of any lease; interest or amortization payments on anymortgage or mortgages; or rental for any ground or underlying lease orleases.  If Landlord makes any capitalimprovement during the Term of this Lease in order to comply with safety or anyother requirements of any Federal, State or local law or governmentalregulation, then the Tenant shall be responsible for its Proportionate Share ofany such charges, with interest at One and One-Half Percent (1-1/2%) above theprime rate announced from time to time by Wells Fargo Bank of Denver, N.A., orits successors.  For the precedingsentence, Tenant’s Proportionate Share of said charges is determined bymultiplying the annual amortization of said charges as determined by generallyaccepted accounting principles by Tenant’s Proportionate Share.  Said amount with interest shall be deemed anOperating Cost in each of the calendar years during which such amortizationoccurs.

Operating Costsallocated to Tenant shall not reflect any type or degree of service or dutyperformed by or through Landlord for any other Tenant which is not required tobe performed for Tenant under this Lease which results in a cost in excess ofthe services or duties required to be provided by Landlord under this Lease.

## (c)           Real Estate Taxes:

### (i)            The term “RealEstate Taxes” means all taxes and assessments, special or otherwise levied uponor with respect to the Building and the Land (including air rights) imposed byFederal, State or local governments, use, occupancy, excise or similar taxes,and taxes on rent, the cost of contesting by appropriate proceeding the amountor validity of any of the aforementioned taxes or assessments and taxes andassessments of every kind and nature whatsoever levied and assessed and imposedon Landlord in lieu of or in substitution for existing or additional real orpersonal property taxes or assessments on the Land, Building, or said personalproperty; except that Real Estate Taxes shall not include general income,franchise, capital stock, estate or inheritance taxes. In the case of specialtaxes and assessments payable in installments, only the amount of eachinstallment due and payable during a single calendar year shall be included inReal Estate Taxes for that year.

## (d)           If the term shall terminate on a date other thanDecember 31st, the adjustments in Annual Rent described in this sectionshall be increased or decreased, as the case may be, for the period commencingon the January 1st following the last full calendar year of the Term andcontinuing to the end of the Term, in the manner set forth in this section andthe adjustment for such period shall be made within twenty (20) days afterLandlord shall render its statements for the last monthly installment of theAnnual Base Rental payable under this Lease, or if that is not reasonablyfeasible as soon thereafter as is reasonably feasible, and this obligationshall survive the expiration or earlier termination of the term.

## (e)           Intentionally omitted.

## (f)            Any amount due from Tenant to Landlord which is not paidwhen due shall bear interest at a rate of Twelve Percent (12%) from the datesuch payment is due until paid, except that amount spent by Landlord on behalfof Tenant shall bear interest at such rate from the date of disbursement byLandlord.  Notwithstanding the foregoing,Landlord will not assess interest as provided above for the first occurrence ofany late payment in any twelve (12) month period, if Tenant makes such paymentwithin five (5) days after receipt of notice from Landlord of such latepayment, (it being expressly understood and agreed that if Tenant does not 

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## make such payment after notice, interestshall commence to accrue on the 5th day after such notice, and it further beingexpressly understood and agreed that any notice of non-payment which Landlordmay provide Tenant pursuant to Section 23(a) hereof shall be deemed toconstitute such notice).

Tenant herebyacknowledges that in addition to lost interest, the late payment by Tenant toLandlord of rent or any other sums due hereunder will cause Landlord to incurother costs not contemplated in this Lease, the exact amount of which will beextremely difficult and impracticable to ascertain.  Such other costs include, but are not limitedto, processing, administrative and accounting costs.  Accordingly, if any installment of rent orany additional rent or other sum due from Tenant shall not be received byLandlord within five (5) days after such amount shall be due, Tenant shall payto Landlord a late charge equal to Ten Percent (10%) of such overdueamount.  The parties hereby agree that(i) such late charge represents a fair and reasonable estimate of thecosts Landlord will incur in processing such delinquent payment by Tenant,(ii) such late charge shall be paid to Landlord as liquidated damages foreach delinquent payment, and (iii) the payment of the late charges and thepayment of interest is to compensate Landlord for the use of Landlord’s moneyby Tenant, while the payment of the late charges is to compensate Landlord forthe additional administrative expense incurred by Landlord in handling andprocessing delinquent payments. Notwithstanding the foregoing, Landlord will not assess a late charge asprovided above for the first occurrence of any late payment in any twelve (12)month period, if Tenant makes such payment within five (5) days after receiptof notice from Landlord of such late payment (it being expressly understood andagreed that any notice of non-payment which Landlord may provide Tenantpursuant to Section 23(a) hereof shall be deemed to constitute such notice).

Neither assessment noracceptance of interest or late charges by Landlord shall constitute a waiver ofTenant’s default with respect to such overdue amount, nor prevent Landlord fromexercising any of its other rights and remedies under this Lease.  Nothing contained in this section shall bedeemed to condone, authorize, sanction or grant to Tenant an option for thelate payment of rent, additional rent or other sums due hereunder, and Tenantshall be deemed in default with regard to any such payments should the same notbe made by the date on which they are due.

## (g)           All costs and expenses which Tenant assumes or agrees topay to Landlord pursuant to this Lease shall be deemed Additional Rent and, inthe event of non-payment thereof, Landlord shall have all the rights andremedies herein provided for in case of non-payment of Rent.

**6.             MISCELLANEOUS TAXES. **Tenant shall pay prior todelinquency all taxes assessed against or levied upon its occupancy of thePremises, or upon the fixtures, furnishings, equipment and all other personalproperty of Tenant located in the Premises, if non-payment thereof shallgive rise to a lien on the real estate, and when possible Tenant shall causesaid fixtures, furnishings, equipment and other personal property to beassessed and billed separately from the property of Landlord.  In the event any or all of Tenant’s fixtures,furnishings, equipment and other personal property, or taxes upon Tenant’soccupancy of the Premises, shall be assessed and taxed with the property ofLandlord, Tenant shall pay to Landlord its share of such taxes within ten (10)business days after delivery to Tenant by Landlord of a statement in writing settingforth the amount of such taxes applicable to Tenant’s fixtures, furnishings,equipment or personal property.

**7.             USE. **The Premises shall be usedand occupied by Tenant for general office purposes and for no other purpose.

## (a)           Tenant shall not at any time use or occupy the Premises orthe Building, or suffer or permit anyone to use or occupy the Premises, or doanything in the Premises or the Building, or suffer or permit anything to bedone in, brought into or kept on the Premises, which in any manner in the solediscretion of Landlord (a) violates the Certificate of Occupancy for thePremises or for the Building; (b) causes or is liable to cause injury tothe Premises or the Building or any equipment, facilities or systems therein;(c) constitutes a violation of the laws and requirements of any publicauthorities or the requirements of insurance bodies; (d) impairs or tendsto impair the character, reputation or appearance of the Building as afirst-class office building; (e) impairs or tends to impair the proper andeconomic maintenance, operation and 

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## repair of the Building and/or its equipment,facilities or systems; or (f) constitutes a nuisance, public or private.

## (b)           Notwithstanding any other provision of this Lease to thecontrary (including without limitation, Paragraph 9 regarding heating,ventilation and air conditioning and Paragraph 19 regarding rules andregulations), Tenant hereby agrees that the aggregate number of people(including, without limitation, full-time employees, part-time employees,independent contractors and agents of Tenant) which may use or perform servicesor activities in the Lease Premises shall not exceed a ratio of one (1) personfor each two hundred (200) rentable square feet of space in the LeasedPremises, regardless of whether such people “office share”, “job share” or workin shifts.  Landlord hereby acknowledgesthat Tenant may, from time to time, allow invitees, guests and repair workersto enter the Premises for the purposes of meeting with employees and makingrepairs, and that the presence of such people shall not be included in theaforementioned calculation.  Anyviolation by Tenant of the terms and conditions of the Paragraph 7 shallbe deemed to be an Event of Default as defined in Paragraph 23 of the Leasefor which there is no cure period.

**8.             PREPARATION FOR OCCUPANCY. **Prior to the CommencementDate, Landlord shall, at Landlord’s sole cost and expense, alter and fit-upthe Premises to the extent set forth in the Workletter Agreement of even dateherewith, marked Exhibit ”B” and attached hereto (herein referred to as “BuildingStandard Improvements”).

Other thanBuilding Standard Improvements, all pre-occupancy alteration and fit-upof the Premises shall be performed at Tenant’s sole cost and expense (hereinreferred to collectively as “Special Work”), subject to the terms andprovisions of the Workletter Agreement and this Lease.

**9.             SERVICES. **The Landlord shall provide,at Landlord’s expense, except as otherwise provided, the following services:

## (a)           Janitor service as described in Exhibit “C” attachedhereto, in and about the office space, Saturdays, Sundays, and legal and unionholidays excepted.

## (b)           Heat and, except for basement space, air-conditioningrequired in Landlord’s reasonable judgment for the comfortable use andoccupation of the Premises, from 7:00 a.m. to 6:00 p.m. on Mondaysthrough Fridays, and from 8:00 a.m. to 1:00 p.m. on Saturdays,excepting union and legal holidays in each instance.  If Tenant desires HVAC service outside ofsuch hours, Tenant shall provide Landlord at least twenty-four (24) hours’prior notice and shall pay to Landlord the then current standard charge forsuch after-hours HVAC service.  The ratesfor after-hours HVAC service as of the date of this Lease are $200 per hour forthe first one (1) hour and $160 per hour thereafter for full cooling (chillerand fans), and $84 per hour for fans only, which rates are subject to changefrom time to time without notice to Tenant.

Whenever heat generatingmachines or equipment are used in the Premises which affect the temperatureotherwise maintained by the air-conditioning system, Landlord reservesthe right, at its option, either to require Tenant to discontinue the use ofsuch heat generating machines or equipment or to install supplementary air-conditioningequipment in the Premises; the cost of such installation shall be paid byTenant to Landlord promptly on being billed therefor, and the cost of operationand maintenance of said supplementary equipment shall be paid by Tenant toLandlord on the monthly rent payment dates as such rates as may be agreed on,but in no event at a rate less than Landlord’s actual cost therefor of labor,materials and utilities.

## (c)           Hot and cold (or tempered) water for drinking, lavatoryand toilet purposes within the public areas only (and, in the standardrestrooms serving the Premises).

## (d)           Passenger elevator service at all times.

## (e)           Window washing of all exterior windows, both inside andout.

## (f)            Building Standard Electricity (hereinafter defined).

## (g)           On-site building safety personnel services consistent withcomparable buildings in the downtown Denver, Colorado central businessdistrict.

 

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If Tenant shallrequire electric current design capacity in excess of 5.00 watts per squarefoot at 208/120v (three phase) for use of the Premises as general office space(the “Building Standard Electricity”), Tenant shall first procure the consentof Landlord, which Landlord may not unreasonably withhold, to the use thereofand Landlord may cause an electric check meter to be installed in the Premisesor Landlord shall have the right to cause a reputable independent electricalengineering or consulting firm to survey and determine the value of theelectric service furnished for such excess electric current. The reasonablecost of any such survey or meters and/or installation, maintenance and repairthereof shall be paid for by Tenant. Tenant agrees to pay to Landlord promptly within thirty (30) days afterreceipt of Landlord’s statement, for all such electric current consumed asshown by said meters or by said survey at the rates charged for such servicesby the City, or the local public utility, as the case may be, furnishing thesame, plus any additional expense incurred in keeping account of the electric currentso consumed.  It is understood that cost,as determined by Landlord, of material and labor for replacing light bulbs,tubes, ballasts, starters, switches and any other parts and fixtures used infurnishing electricity to the leased Premises shall also be paid by Tenant.

Any riser orrisers or wiring to meet Tenant’s excess electrical requirements, upon writtenrequest of Tenant, will be installed by Landlord, at the sole cost and expenseof Tenant if, in Landlord’s sole judgment, the same are necessary and will notcause permanent damage or injury to the Building or Premises or cause or createa dangerous or hazardous condition or entail excessive or unreasonablealteration, repairs or expense or interfere with or disturb other tenants oroccupants.

Landlord hasadvised Tenant that presently Xcel Energies (“Electric Service Provider”) isthe utility company selected by Landlord to provide electricity service for theBuilding.  Notwithstanding the foregoing,if permitted by law, Landlord shall have the right at any time and from time totime during the Term of the Lease and any extension thereof to either contractfor service from a different company or companies providing electricity service(each such company shall hereinafter be referred to as an “Alternate ServiceProvider”) or continue to contract for service from the Electric ServiceProvider.  Tenant shall cooperate withLandlord, the Electric Service Provider, and any Alternate Service Provider atall times and, as reasonably necessary, shall allow Landlord, Electric ServiceProvider, and any Alternate Service Provider reasonable access to the Building’selectric lines, feeders, risers, wiring, and any other machinery within thePremises and accept reasonable disturbances caused thereby, provided thatLandlord will use commercially reasonable efforts to minimize disruption toTenant’s use of the Premises.

Should Tenantrequire any additional work or service, including but not limited to theadditional work or service described above, including service furnished outsidethe stipulated hours, Landlord may, upon reasonable advance notice by Tenant,furnish such additional service and Tenant agrees to pay the Landlord suchcharges as may be agreed on, but in no event at a charge less than Landlord’sactual cost plus overhead for additional services provided, it being agreedthat the cost to the Landlord of such additional services shall be excludedfrom Operating Expense.

It is understoodthat Landlord does not warrant that any of the services referred to above, orany other services which Landlord may supply, will be free from interruption,Tenant acknowledging that any one or more such services may be suspended byreason of accident or of repairs, maintenance, tests, change of electricservice provider (or the modification of facilities in connection therewith)alterations or improvements necessary or advisable to be made, or by strikes orlockouts, or by reason of operation of law, or causes beyond the reasonablecontrol of Landlord.  Landlord will use commerciallyreasonable efforts to notify Tenant of any planned suspension of any of theforegoing services, and will use commercially reasonable efforts to restore anyinterrupted service.  Any suchinterruption of service shall never be deemed an eviction or disturbance ofTenant’s use and possession of the Premises, or any part thereof, or renderLandlord liable to Tenant for damages by abatement of Rent or otherwise, orrelieve Tenant from performance of Tenant’s obligations under this Lease;provided, however, that in connection with any planned interruptions, Landlordwill use reasonable efforts to minimize disruption to Tenant’s businessactivities in the Premises. Notwithstanding the foregoing, in the event of any interruption ofservices caused by Landlord, its employees, agents or contractors and withinLandlord’s sole and absolute control which materially impairs Tenant’s normalbusiness operations in the Premises for a period in excess of five (5)consecutive business days, following Landlord’s receipt of notice from Tenant,then, as Tenant’s sole and exclusive remedy, Tenant shall be entitled to anabatement of Tenant’ s Annual Base Rental obligations hereunder 

 

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forsuch period which exceeds such five (5) consecutive business days until the serviceis restored; provided, however that such rental abatement shall be on a prorata basis to reflect only that portion of the Premises affected by theinterruption of services.  The abatementof Annual Base Rental obligations as provided in this paragraph shall not beapplicable either (a) in the case of any interruption or malfunction resultingfrom any service providers or any governmental action which reduces oreliminates a service to the Building; provided, however, that Landlord agreesto use commercially reasonable efforts to restore any interrupted services, or(b) in the case of damage by casualty, in which case the provisions of Article21 shall control.

**10.          MECHANIC’S LIENS. **Tenant shall pay beforedelinquency all costs for work done or caused to be done by Tenant in thePremises which could result in any lien or encumbrance on Landlord’s interestin the Land or Building or any part thereof, shall keep the title to the Landor Building and every part thereof free and clear of any lien or encumbrance inrespect of such work and shall indemnify and hold harmless Landlord against anyclaim, loss, cost, demand and legal or other expense, whether in respect of anylien or otherwise, arising out of the supply of material, services or labor forsuch work.  Tenant shall promptly notifyLandlord of any such lien, claim of lien or other action of which it hasknowledge and which affects, or could affect, the title to the Land or Buildingor any part thereof and Tenant shall cause the same to be removed or bondedover in a manner reasonably acceptable to Landlord and/or its lenders withinten (10) days, failing which Landlord may take such action as Landlord deemsnecessary to remove the same and the entire cost thereof shall be immediatelydue and payable by Tenant to Landlord.

**11.          QUIET ENJOYMENT. **So long as Tenant shallobserve and perform the covenants and agreements binding on it hereunder, theTenant shall at all times during the Term herein granted peacefully and quietlyhave and enjoy possession of the Premises without any encumbrance or hindranceby, from or through the Landlord, its successors or assigns.

**12.          CERTAIN RIGHTS RESERVED TO THELANDLORD. **The Landlordreserves the following rights:

## (a)           To name the Building and to change the name or streetaddress of the Building.

## (b)           To install and maintain a sign or signs on the exterior orinterior of the Building.

## (c)           To designate all sources furnishing sign painting andlettering, ice, drinking water, towels, toilet supplies, shoe shining, vendingmachines, mobile vending service, catering, and like services used on thePremises.

## (d)           During the last ninety (90) days of the Term, if during orprior to that time the Tenant vacates the Premises, after confirming withTenant that Tenant has vacated the Premises, to decorate, remodel, repair,alter or otherwise prepare the Premises for re-occupancy, without affectingTenant’s obligation to pay rental for the Premises.

## (e)           To constantly have pass keys to the Premises.

## (f)            On reasonable prior notice to the Tenant, to exhibit thePremises to prospective tenants during the last nine (9) months of the Term(unless Tenant has previously exercised its renewal option as provided herein),and to any prospective purchaser, mortgagee, or assignee of any mortgage of theProperty and to others having a legitimate interest at any time during theTerm.

## (g)           At any time in the event of an emergency, otherwise atreasonable times and except for standard building services (e.g., janitorial)upon reasonable advance notice (which may be given orally), to take any and allmeasures, including inspections, repairs, alterations, additions andimprovements to the Premises or to the Building, as may be necessary ordesirable for the safety, protection or preservation of the Premises or theBuilding or the Landlord’s interests, or as may be necessary or desirable inthe operation or improvement of the Building or in order to comply with alllaws, orders and requirements of governmental or other authority.

## (h)           To install vending machines of all kinds in the Premises,and to provide mobile vending service therefor, and to receive all of therevenue derived therefrom, provided, 

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## however, that no vending machines shall beinstalled by Landlord in the Premises nor shall any mobile vending service beprovided therefor, unless Tenant so requests.

**13.          ESTOPPEL CERTIFICATE BY TENANT. **The Tenant agrees that fromtime to time upon not less than ten (10) business days’ prior request by theLandlord, the Tenant will deliver to the Landlord a statement in writingcertifying (a) that this Lease is unmodified and in full force and effect(or if there have been modifications that the same is in full force and effectas modified and identifying the modifications), (b) the Commencement Date,Termination Date, and the dates to which the Rent and other charges have beenpaid, and (c) that, to the best knowledge of the person making thecertificate knows, the Landlord is not in default under any provision of thisLease, and, if the Landlord is in default, specifying each such default ofwhich the person making the certificate may have knowledge, it being understoodthat any such statement so delivered may be relied upon by the Landlord, anylandlord under any ground or underlying lease, or any prospective purchaser,mortgagee, or any assignee of any mortgage on the Property.  Tenant also shall include or confirm in anysuch statement such other information concerning this Lease as Landlord mayreasonably request.

**14.          WAIVER OF CLAIMS AND INDEMNITY. **Landlord and Tenant, to theextent permitted by law, expressly, knowingly and voluntarily waive and releaseany and all claims it may have against the other party, and against the otherparty’s agents, employees and contractors, including, but not limited to,claims for theft or damage to property (including business interruption ofTenant’s Business) or loss of income. Moreover, Tenant, to the extent permitted by law, expressly, knowinglyand voluntarily waives and releases any and all claims it may have against theLandlord, its agents, employees and contractors, for injury to person sustainedby the Tenant or by any occupant of the Premises, or by any other person, as aresult of the acts or omissions of Landlord or Landlord’s employees, agents, orcontractors, unless caused as a result of the negligence or willful misconductof Landlord or its employees, agents, or contractors.  Without limiting the foregoing, Tenant waivesany claims against Landlord arising from theft or damage to person or propertyas a result of any part of the Property or any equipment or appurtenancesbecoming out of repair, or resulting from any accident in or about the Propertyor resulting directly or indirectly from any act or neglect of any tenant oroccupant of any part of the Property or of any other person.  This provision shall apply especially (butnot exclusively) to damage caused by water, frost, weather, steam, sewage,electricity, gas, sewer gas or odors, or by the bursting or leaking of pipes orplumbing work, and shall apply equally whether such damage is caused oroccasioned by anything or circumstance above mentioned or referred to, or byany other thing or circumstance whether of a like or wholly differentnature.  All personal property belongingto the Tenant or any occupant of the Premises that is in or on any part of theProperty shall be there at the risk of the Tenant or of such other person only,and the Landlord, its agents and employees shall not be liable for any damagethereto or for the theft or misappropriation thereof.

The Tenant agreesto hold the Landlord harmless and indemnified (including reasonable attorneyfees) against claims and liability for injuries to all persons and for damageto or loss of property occurring in or about the Property, due to any act ofnegligence or default under this Lease by the Tenant, its contractors, agents,employees, invitees, or those on the Property by or through Tenant.  Such obligation shall not be construed tonegate, abridge or otherwise reduce any other right or obligation of indemnitythat would otherwise exist as to any party or person described in thisparagraph.  Tenant agrees that in theevent Tenant shall have any claim against Landlord under the Lease or arisingout of the subject matter of the Lease, as amended from time to time, Tenant’ssole recourse shall be against the Landlord’s interest in the Building, for thesatisfaction of any claim, judgment or decree requiring the payment of money byLandlord as a result of a breach hereof or otherwise in connection with the Lease,and no other property or assets of Landlord, its successors or assigns, shallbe subject to the levy, execution or other enforcement procedure for thesatisfaction of any such claim, judgment, injunction or decree.  Moreover, Tenant agrees that Landlord shallin no event and under no circumstances be responsible for any consequentialdamages incurred or sustained by Tenant, or its employees, agents, contractorsor invitees as a result of or in any way connected to Tenant’s occupancy of thePremises.  In any and all claims againstLandlord and its subsidiaries or any of their agents or employees by anemployee of the Tenant or anyone directly or indirectly employed by Tenant oranyone for whose acts Tenant may be liable, the indemnification obligation underthis paragraph shall not be limited in any way by any limitation on the amount 

 

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or typeof damages, compensation or benefits payable by or for the Tenant under workers’compensation acts, disability benefit acts or other employee benefit acts.  Tenant understands and acknowledges thesignificance and consequence of the waivers and indemnifications set forthherein.  The indemnity and hold harmlessobligations of the Tenant shall survive termination of this Lease.

The Landlordagrees to hold Tenant harmless and indemnified (including reasonable attorneyfees) against claims and liability for injuries to all persons and for damageto or loss of Property occurring in or about Property, due to any act ofnegligence or default under this Lease by Landlord, its contractors, agents,employees, invitees or those on the Property by or through Tenant.

**15.          INSURANCE**.

## (a)           Tenant shall carry and maintain, or cause to be carriedand maintained, at all times during the Term of this Lease and at Tenant’s solecost and expense All Risk Property insurance including, but not limited to,coverage, after commercially reasonable deductibles, the full replacement valueof Tenant’s improvements, including all Tenant Improvements completed byLandlord or Tenant, betterments, furniture, fixtures, equipment and allcontents in the Premises.

## (b)           Tenant shall carry and maintain, or cause to be carriedand maintained, at all times during the term of this Lease and at Tenant’s solecost and expense a commercial general liability insurance policy (hereinafterreferred to as a “Liability Policy”). Such Liability Policy shall include Landlord, Jones Lang LaSalleAmericas, Inc. (and any other party reasonably required by Lessor), asAdditional Insured and be written on an “occurrence basis” including, withoutlimitation, blanket contractual liability coverage, broad form property damage,and personal injury coverage protecting Landlord against liability occasionedby any occurrence on or about the Premises or the Building.  Such Liability Policy shall be maintained inan amount not less than $1,000,000.00 for a single occurrence limit and$2,000,000.00 for an aggregate limit, and, in addition, $5,000,000.00 of excessor umbrella liability insurance.

## (c)           Tenant shall carry and maintain, or cause to be carriedand maintained, at all times during the Term of this Lease and at Tenant’sexpense statutory workers compensation and employers liability insurance withthe following minimum limits:

Bodily injury by disease per person                             $1,000,000

Bodily injury by accident policy limit                           $1,000,000

Bodily injury by disease policy limit                             $1,000,000

 

## (d)           Tenant shall carry and maintain, or cause to be carriedand maintained, at all times during the Term of this Lease and at Tenant’sexpense such other insurance or such additional amounts of insurance withrespect to the Premises as is generally maintained by persons having similarexposures or properties similarly situated and as the Landlord shall from timeto time reasonably require.

## (e)           The insurance required under this section shall be writtenby insurers authorized and licensed to conduct business in the state where theproperty is located and shall have an A.M. Best Company rating of “A -” orbetter and shall have financial size category of not less than VIII.  All insurers used by Tenant hereunder shallwaive any and all rights of subrogation against Landlord, its agents,contractors, directors, officers and shareholders for losses payable.

## (f)            In the event any of the insurance required under thissection is cancelled (in whole or in part) for any reason whatsoever, includingnonpayment of premium, such cancellation shall not be effective as to theLandlord until at least thirty (30) days after receipt by the Landlord andTenant of written notice from each insurer of such cancellation.

## (g)           Certificates of Insurance (in a form substantially similarto an Accord Form 27) executed by authorized representatives of insurancecompanies shall be issued in connection with each of the policies requiredunder Sections (b), (c), (d) and (e) and delivered to the Landlord priorto the Commencement Date and from time to time upon renewal of such coverage assoon as reasonably practicable, but in no event later than thirty (30) daysprior to the 

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## expiration date of the policy, providing thatthe policies are not subject to cancellation or non-renewal without at leastthirty (30) days’ prior written notice to Landlord.

## (h)           The Tenant may effect the coverage required under thissection under blanket insurance policies covering other properties of theTenant provided that (i) any such blanket insurance policy shall specifytherein, or the insurer under such policy shall certify to the Landlord, anymaterial sublimits in such blanket policy applicable to the Premises, which sublimitsshall not be less than the amounts required pursuant to this section, and(ii) any such blanket insurance policy shall comply in all respects withother provisions of this section, and (iii) any deductibles andself-insured retention must be approved by Landlord.

**16.          HOLDING OVER. **If the Tenant retainspossession of the Premises or any part thereof after the expiration or earliertermination of the Term, the Tenant shall pay the Landlord Annual Base Rentaland Additional Rent at one hundred fifty percent (150%) the monthly ratespecified in Section 4 for the time the Tenant thus remains in possessionand, in addition thereto, shall pay the Landlord for all damages, consequentialas well as direct, sustained by reason of the Tenant’s retention of possession(collectively, “Holdover Damages”).  Ifthe Tenant remains in possession of the Premises, or any part thereof, afterthe termination of the term, Tenant shall be considered a month-to-monthtenant, and except as provided in this Section 16, shall continue to be subjectto the terms and conditions of this Lease. The provisions of this section do not exclude the Landlord’s rights ofre-entry or any other right hereunder. Notwithstanding the foregoing, Tenant shall not be liable to Landlordfor any Holdover Damages unless Landlord gives Tenant written notice thatTenant’s holdover is prohibiting Landlord from delivering the Premises to aprospective Tenant and Tenant still fails to vacate the Premises within five(5) business days after the date of such notice.  In such event, Tenant shall be liable for anyHoldover Damages sustained by Landlord after the expiration of such five (5)business day period.

**17.          ASSIGNMENT AND SUBLETTING**.

## (a)           The Tenant, or any other occupant, shall not, without theLandlord’s prior written consent, which consent shall not be unreasonablywithheld:  (i) assign, convey,mortgage, pledge, encumber or otherwise transfer (whether voluntarily orotherwise) this Lease or any interest under it; (ii) allow any transferthereof or any lien upon the Tenant’s interest by operation of law;(iii) sublet the Premises or any part thereof, or (iv) permit the useor occupancy of the Premises or any part thereof by any one other than theTenant.

## (b)           Notwithstanding anything herein to the contrary, if at anytime or from time to time during the Term, Tenant desires to sublet or assignthe Lease with respect to all or part of the Premises, Tenant shall notifyLandlord in writing (hereinafter referred to in this section as the “Notice”)of the terms of the proposed subletting or assignment and identify the proposedassignee or subtenant, including proposed use, and the area proposed to besublet or covered by the assignment and shall give Landlord the option tosublet from Tenant such space (hereinafter referred to as “Sublet Space”) atthe same Rent and Additional Rent as Tenant is required to pay to Landlordunder this Lease for the same space, or, at Landlord’s option, to terminatethis Lease with respect to the Sublet Space. If the Sublet Space does not constitute the entire Premises and Landlordexercises its option to terminate this Lease with respect to the Sublet Space,then as to that portion of the Premises which is not part of the Sublet Space,this Lease shall remain in full force and effect except that the Rent andAdditional Rent shall be reduced by a fraction, the numerator of which shall bethe rentable square feet of the Sublet Space and the denominator of which shallbe the rentable square feet of the Premises. The option to sublet, or to terminate this Lease, shall be exercisableby Landlord in writing within a period of thirty (30) calendar days afterreceipt of the Notice (“Landlord’s Sublet/Termination Notice”).  Tenant shall have the right to withdraw itsrequest for Landlord’s consent to the proposed transfer (“Withdrawal Right”),provided Tenant exercises such Withdrawal Right within five (5) business daysafter receipt of Landlord’s Sublet/Termination Notice.  If Tenant timely exercises its WithdrawalRight, the Lease shall continue in full force and effect as if Tenant had notrequested Landlord’s consent to the proposed transfer.

In the event Landlordexercises the option to sublet the Sublet Space, the term of the sublettingfrom the Tenant to Landlord shall be the term set forth in the Notice and shallbe on such terms and conditions as are contained in this Lease to the extentapplicable, 

 

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exceptthat the Landlord shall have the right to further sublet the Sublet Space, inits sole and absolute discretion.

If Landlord fails toexercise either of its options within the said thirty (30) day period, theTenant may submit to Landlord within twenty (20) days after said period a copyof the proposed assignment or sublease and such information concerning theproposed assignment or sublease as may be requested by Landlord for Landlord’sreview.  If Landlord, in its reasonablediscretion, approves in writing the terms of the proposed assignment orsublease and the proposed assignee or sublessee but a fully executedcounterpart of such assignment or sublease is not delivered to Landlord withinsixty (60) days after the date of Landlord’s approval, then Landlord’s approvalof the proposed assignment or sublease shall be deemed null and void and Tenantshall again comply with all the conditions of this section as if the Notice andoptions hereinabove referred to had not been given and received.

## (c)           Assignment under the Lease.  The following shall be deemed to be anassignment under this Lease:

### (i)            the sale, transferor creation of a total of more than Fifty Percent (50%) of the shares of thestock of a corporation, or more than Fifty Percent (50%) of the ownershipinterests of any other type of entity which is then the Tenant under thisLease, including, but not limited to, general partnerships, limitedpartnerships, limited liability partnerships, limited liability limitedpartnerships, limited liability companies, and limited partnershipassociations; or

### (ii)           the merger of theTenant with another entity whereby the Tenant is not the surviving entity; or

### (iii)          the conversion ofthe Tenant into another entity; or

### (iv)          if the Tenant is ageneral or limited partnership, its registration with the Colorado Secretary ofState’s office pursuant to C.R.S. Section 7-60-144; or

### (v)           if the Tenant is ageneral or limited partnership formed on or before December 31, 1997, itselection to be governed by C.R.S. Section 7-64-101, etseq.

## (d)           Tenant agrees to pay to Landlord, within thirty (30) daysafter invoice from Landlord therefor, reasonable costs incurred by Landlord inconnection with any request by Tenant for Landlord to consent to an assignmentor subletting by Tenant, not to exceed $1,000.00 in any one instance providedthat Tenant utilizes Landlord’s standard forms.

## (e)           If Landlord fails to exercise either of its options underSubsection (b) above, and if this Lease is assigned or if the Premises orany part thereof is sublet or occupied by anybody other than Tenant, Tenantshall pay to Landlord, as Additional Rent, fifty percent (50%) of all of theExcess Sublease Rent (as hereinafter defined) less the reasonable and customaryout-of-pocket transaction costs incurred by Tenant in connectionwith such subletting or assignment, including attorney’s fees, brokeragecommissions, and alteration costs (which transaction costs shall be amortizedon a straight-line basis over the sublease or assignment term).  Excess Sublease Rent shall include all rents,additional charges, and any and all other consideration payable to Tenant bythe subtenant or assignee for or by reason of such sublease or assignment andwhich are, in the aggregate, in excess of the rent payable under this Lease forthe subleased or assigned space during the term of the sublease or assignment,and shall include but not be limited to any sums paid for the sale or rental ofTenant’s fixtures, leasehold improvements, equipment, furniture, furnishings,or other personal property, and sums paid for services provided by Tenant tosuch subtenant (including, without limitation, secretarial, word-processing,receptionist, conference room, library, etc.).

Any amounts payable byTenant under this Subsection (e) shall be paid by Tenant to Landlord asand when amounts on account thereof are paid, by any subtenant or assignee toTenant, and Tenant agrees to promptly advise Landlord thereof and furnish suchinformation and documentation with regard thereto as Landlord may request fromtime to time.

 

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Landlord shall have the right at any time and fromtime to time for up to two (2) years following the Expiration Date, upon priornotice to Tenant to audit and inspect Tenant’s books, records, accounts, andfederal income tax returns to verify the determination of Additional Rentpayable under this section.

## (f)            If this Lease is assigned or if the Premises or any partthereof is sublet or occupied by anybody other than Tenant, Landlord may, afterdefault by Tenant, collect rent from the assignee, subtenant or occupant, andapply the net amount collected to the Rent and Additional Rent herein reserved,but no such assignment, subletting, occupancy or collection shall be deemed awaiver of any of Tenant’s covenants contained in this Lease or the acceptanceof the assignee, subtenant or occupant as Tenant, or a release of Tenant fromfurther performance by Tenant of covenants on the part of Tenant hereincontained.

## (g)           Any consent by Landlord to a particular assignment orsublease shall not constitute Landlord’s consent to any other or subsequentassignment or sublease.  Any assignment,subletting, or occupancy without Landlord’s prior written consent shall bevoidable by Landlord and shall, at the option of Landlord, constitute an Eventof Default (as defined in Section 23 hereof) under this Lease.

## (h)           In the event of a permitted subletting or assignment, anyand all allowances, concessions and options set forth in this Lease shall,effective as of the date of the subletting or assignment, be deemed null andvoid, it being understood that said allowances, concessions and options weresolely for the benefit of the original Tenant. In no event shall this be deemed to retroactively void any allowances orconcessions disbursed prior to the subletting or assignment.

## (i)            The parties agree that, without limiting Landlord’sdiscretion in connection with a requested transfer hereunder, it shall not beunreasonable for Landlord to withhold its consent if the requested sublettingor assignment is (A) to any existing tenant or subtenant of the Building, orany other Building in metropolitan Denver then owned by Landlord, unlessLandlord is not able to accommodate such tenant’s/subtenant’s expansion needsin the Building, or (B) to any person or entity with whom Landlord, or itsagent, is or was negotiating and to or from whom Landlord, or its agent, hasgiven or received any written or oral proposal within the past six (6) monthsregarding a lease of space in the Building. It is understood and agreed that said subletting or assignment woulddamage Landlord in an amount which would be difficult to determine and theparties hereby agree that any such subletting or assignment shall be void andof no further force and effect and that, in the event of an assignment orsubletting under the terms of subparagraph (A) above, Tenant shall be liable toLandlord for damages in an amount equal to the then prevailing market rentalrate for the Building in which the subtenant or assignee was located, for newleases multiplied by the number of rentable square feet in the Premises whichwere sublet or assigned, which give a per annum rental amount, which amountshall be multiplied by the number of lease years of the sublease or assignment,pro rata for any partial year.  Saidamount shall be due and payable upon demand from Landlord and shall be inaddition to and not in limitation of any other rights or other remedies ofLandlord under this Lease for default.

## (j)            Intentionally Omitted.

## (k)           In no event may Tenant assign this Lease or sublet all orany portion of the Premises nor is any proposed assignment or subleaseeffective if there exists at the time of the proposed assignment or sublease anEvent of Default under the Lease (as defined in Section 23 hereof) orTenant has failed to pay Rent when due.

## (l)            All public advertisements of the assignment of the Leaseor sublet of Premises, or any portion thereof, shall be subject to the priorwritten approval of Landlord, which shall not be unreasonably withheld.  Said public advertisements shall include, butnot be limited to, the placement or display of any signs or lettering on theexterior of the Premises, or on the glass or any window or door of thePremises, or in the interior of the Premises if it is visible from theexterior.

## (m)          Except for a Permitted Transfer (hereinafter defined) or atransfer to which Landlord has consented pursuant to the provisions hereofwhich creates a relationship directly between Landlord and such transferee, thelisting of any name other than that of Tenant, whether 

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## on the doors of the Premises or the Buildingdirectory or otherwise, or the acceptance of payment for Rent or other chargesfrom any person or entity other than Tenant, shall not operate to vest anyright or interest in this Lease or in the Premises, nor shall it be deemed tobe the consent of Landlord to any assignment or transfer of this Lease or toany sublease of the Premises or to the use or occupancy thereof by others.

## (n)           Notwithstanding anything to the contrary in this Article17, Tenant shall have the right, upon ten (10) business days’ prior writtennotice to Landlord, to (i) sublet all or part of the Premises or otherwiseshare the Premises with any Affiliate (hereinafter defined); or (ii) assignthis Lease to an Affiliate or a successor corporation or other successor entityeither into which or with which Tenant is merged or consolidated or whichacquired substantially all of Tenant’s assets and property; provided that (A)in the case of a successor corporation or other successor entity or a convertedentity under Section 17(c)(iii), (iv) or (v), such successor corporation, othersuccessor entity or converted entity assumes substantially all of theobligations and liabilities of Tenant and shall have assets, capitalization andnet worth at least equal to the assets, capitalization and net worth of Tenantas of the date of this Lease as determined by generally accepted accountingprinciples, and (B) Tenant shall provide in its notice to Landlord informationevidencing that the assignee is an Affiliate and/or a successor corporation,other successor entity or converted entity meeting the requirements set forthherein.  For purposes of this Section17(n), the term “Affiliate” shall mean any entity controlling, controlled by orunder common control with Tenant.

**18.          CONDITION OF PREMISES. **Except for any Punch ListItems (as defined in the Workletter Agreement), Tenant’s taking possession ofthe Premises shall be conclusive evidence as against the Tenant that thePremises were in good order and satisfactory condition when the Tenant tookpossession, except as to latent defects. No promise of the Landlord to alter, remodel, repair or improve thePremises or the Building and no representation respecting the condition of thePremises or the Building have been made by Landlord to Tenant, other than theWorkletter Agreement, attached hereto as Exhibit ”B”.  At the termination of this Lease, the Tenantshall return the Premises broom-clean and in as good condition as whenthe Tenant took possession; (i) ordinary wear or (ii) damage caused by fire or othercasualty not caused by Tenant or Tenant’s agents, employees or inviteesexcepted, failing which the Landlord may restore the Premises to such conditionand the Tenant shall pay the cost thereof on demand.  Notwithstanding anything to the contrary inthe foregoing or in Section 19(g) hereof, Tenant shall be required toremove upon the expiration or other termination of this Lease, without furthernotice from Landlord, telecommunications lines (as that term is defined inSection 37[a]) as well as any other electronic, computer,telecommunications, data and/or any other cabling or wiring and relatedequipment (all, collectively, “cabling”) which is installed by or for thebenefit of Tenant and located in the Premises or any other portion of theBuilding, unless Landlord notifies Tenant in writing prior to such expiration(or, in the event of such earlier termination, as soon as reasonablypracticable after such termination) that Landlord elects to have Tenant leave suchcabling in the Building.

**19.          RULES AND REGULATIONS. **The Tenant agrees to complywith the following rules and regulations and with such reasonable modificationsthereof and additions thereto as the Landlord may hereafter from time to timemake for the Building.  The Landlordshall not be responsible for the non-observance by any other tenant ofany said rules and regulations:

## (a)           The Tenant shall occupy and use the Premises during theTerm for general office and no other purpose whatsoever.

## (b)           The Tenant shall not exhibit, sell or offer for sale onthe Premises or in the Building any article or thing except those articles andthings essentially connected with the stated use of the Premises by the Tenantwithout the advance consent of the Landlord.

## (c)           The Tenant will not make or permit to be made any use ofthe Premises or any part thereof which would violate any of the covenants,agreement, terms, provisions and conditions of this Lease or which directly orindirectly is forbidden by public law, ordinance or governmental regulation orwhich may be dangerous to life, limb, or property, or which may invalidate orincrease the premium cost of any policy of insurance carried on the Building orcovering its operation, or which will suffer or permit the Premises or any partthereof to be used in any manner or anything to be brought into or kept thereinwhich, in the judgment of Landlord, 

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## shall in any way impair or tend to impair thecharacter, reputation or appearance of the Property as a high quality officebuilding, or which will impair or interfere with or tend to impair or interferewith any of the services performed by Landlord for the Property.  Bicycles or other vehicles shall not bepermitted in the offices, halls, corridors and elevators in the Building, norshall any obstruction of sidewalks or entrances of the Building by such bepermitted.

## (d)           The Tenant shall not display, inscribe, print, paint,maintain or affix on any place in or about the Building (except within thePremises and not visible from outside the Premises) any sign, notice, legend,direction, figure or advertisement, except on the designated areas of thePremises and on the Directory Board, and then only such name(s) and matter, andin such color, size, style, place and materials, as shall first have beenapproved by the Landlord, which approval shall not be unreasonably withheld;provided, however, it shall not be considered unreasonable for Landlord towithhold consent if the requested posting is not consistent with what Landlorddesignates as standard for the Building. The listing of any name other than that of Tenant, whether on the doorof the Premises, on the Building directory, or otherwise, shall not operate tovest any right or interest in this Lease or in the Premises or be deemed to bethe written consent of Landlord mentioned in Section 17, it beingexpressly understood that any such listing is a privilege extended by Landlordrevocable at will by written notice to Tenant.

## (e)           The Tenant shall not advertise the business, profession oractivities of the Tenant conducted in the Building in any manner which violatesthe letter or spirit of any code of ethics adopted by any recognizedassociation or organization pertaining to such business, profession oractivities, and shall not use the name of the Building for any purposes otherthan that of the business address of the Tenant, and shall never use anypictures or likeness of the Building in any circulars, notices, advertisementsor correspondence without the Landlord’s consent.

## (f)            No additional locks or similar devices shall be attachedto any door or window outside the Premises without Landlord’s prior writtenconsent, which consent shall not be unreasonably withheld; provided, howeverthat Tenant shall provide Landlord with copies of any keys for any such locksand Landlord shall at all times have the ability to access the Premises asprovided herein.  No keys for any doorother than those provided by the Landlord shall be made.  Tenant will be supplied, free of charge, withtwo keys for the main door entering the Premises.  If more than two keys for one lock aredesired, the Landlord will provide the same upon payment by the Tenant.  All keys shall remain the property of theLandlord and must be returned to the Landlord at the expiration or terminationof this Lease.  Tenant shall also provideLandlord the explanation of the combination to all locks for safes, safecabinets and vault doors, if any, in the Premises.

## (g)           Following the initial construction and installationsconducted pursuant to the Workletter Agreement, the Tenant shall not make anyalterations, improvements or additions to the Premises including, but notlimited to, wall coverings, floor coverings and special lighting installations,without the Landlord’s advance written consent in each and every instance,which approval shall not be unreasonably withheld.  Notwithstanding anything contained to thecontrary herein, Tenant shall, without Landlord’s consent, but upon priorwritten notice to Landlord, have the right to make alterations or minordecorations within the Premises where the aggregate cost of such alterations ordecorations is less than $5,000 (“Minor Decorations”), employing contractorsselected by Tenant and reasonably approved by Landlord, provided such MinorDecorations are in keeping with the standards of Tenant’s existing Premises anddo not affect the structure of the Building or the Building mechanicalsystems.  In the event Tenant desires tomake any alterations, improvements or additions other than Minor Decorations,Tenant shall first submit to Landlord plans and specifications therefor andobtain Landlord’s written approval thereof prior to commencing any suchwork.  All alterations, improvements oradditions, including Minor Decorations, whether temporary or permanent incharacter, made by Landlord or Tenant in or upon the Premises shall becomeLandlord’s property and shall remain upon the Premises at the termination ofthis Lease without compensation to Tenant (excepting only Tenant’s movableoffice furniture, trade fixtures, office and professional equipment provided,however, that Landlord shall have the right to require Tenant to remove suchalterations, improvements or additions, at Tenant’s cost, upon the terminationof this Lease and to repair any damage to the Premises resultingtherefrom.  Without limiting theforegoing, Landlord will also have the right to require Tenant to remove anyalterations or improvements constructed as part of the initial construction ifLandlord notifies Tenant at the time of approval of the Tenant Working Drawingsthat Tenant will be required to remove such installations.

 

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## (h)           Neither Tenant, its clerks, agents or servants, shallbring into the Building, without written consent, and under the direction ofLandlord, gas pipes or any telephone, telegraph or electric wires for anypurpose.

## (i)            All persons entering or leaving the Building after hourson Monday through Friday, or at any time on Saturdays, Sundays or holidays, maybe required to do so under such regulations as the Landlord may impose.  The Landlord may exclude or expel anypeddler.

## (j)            The Tenant shall not overload any floor.  The Landlord may direct the time and mannerof delivery, routing and removal, and the location of safes and other heavyarticles.

## (k)           Unless the Landlord gives advance written consent, theTenant shall not install or operate any steam or internal combustion engine,boiler, machinery, refrigerating (other than use of standard non-commercialrefrigerators for keeping food cool) or heating device or air-conditioningapparatus in or about the Premises, or carry on any mechanical businesstherein, or use the Premises for housing accommodations or lodging or sleepingpurposes, or do any cooking therein (other than use of standard non-commercialmicrowave ovens), or use any illumination or other electric light, or use orpermit to be brought into the Building any inflammable fluids such as gasoline,kerosene, naphtha, and benzene, or any explosives, radioactive materials orother articles deemed extra hazardous to life, limb or property except in amanner which would not violate any ordinance or governmental regulations.  The Tenant shall not use the Premises for anyillegal or immoral purpose.

## (l)            The Tenant shall cooperate fully with the Landlord toassure the effective operation of the Building’s air-conditioning system,including the closing of venetian blinds and drapes, and if windows areoperable to keep them closed when the air-conditioning system is in use.

## (m)          The Tenant shall not contract for or perform any work orservice which might involve the employment of labor incompatible with theBuilding employees or employees of contractors doing work or performingservices by or on behalf of the Landlord.

## (n)           No freight, furniture, packages of bulky matter of anydescription will be received in the Building or carried up or down in theelevators except during such hours as the management may prescribe.

## (o)           The sidewalk, halls, passages, exits, entrances, elevatorsand stairways shall not be obstructed by the Tenant or used for any purposeother than for ingress to and egress from its Premises.  The halls, passages, exits, entrances,elevators, stairways and roof are not for the use of the general public and theLandlord shall in all cases retain the right to control and prevent accessthereto by all persons whose presence, in the judgment of the Landlord, shallbe prejudicial to the safety, character, reputation and interests of theBuilding and its tenants, provided that nothing herein contained shall beconstrued to prevent such access to persons with whom the Tenant normally dealsin the ordinary course of Tenant’s business unless such persons are engaged inillegal activities.  No tenant and noemployees or invitees or any tenant shall go upon the roof or mechanical floorsof the Building.

## (p)           Tenant shall not use, keep or permit to be used or keptany foul or noxious gas or substance in the Premises, or permit or suffer thePremises to be occupied or used in a manner offensive or objectionable to theLandlord or other occupants of the Building by reason of noise, odors and/orvibrations, or interfere in any way with other tenants or those having businesstherein, nor shall any animals other than guide dogs for disabled visitors oremployees or birds be brought in or kept in or about the Premises or theBuilding.

## (q)           Tenant shall use reasonable efforts to ensure that thedoors, and windows, if operable, of the Premises are closed and securely lockedbefore leaving the Building and must observe strict care and caution that allwater faucets or water apparatus are entirely shut off before Tenant or Tenant’semployees leave the Building, and that all electricity shall likewise becarefully shut off so as to prevent waste or damage, and for any default orcarelessness Tenant shall make good all injuries or losses sustained by othertenants or occupants of the Building or Landlord.

 

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In addition to all other liabilities for breach of anycovenant of this section, the Tenant shall pay to the Landlord an amount equalto any increase in insurance premiums payable by the Landlord or any othertenant in the Building caused by such breach.

**20.          REPAIRS. **Tenant shall give toLandlord prompt written notice of any damage to, or defective condition in anypart or appurtenance of the Building’s plumbing, electrical, heating, air-conditioningor other systems serving, located in, or passing through the Premises.  Subject to the provisions of thisSection 20, the Tenant shall, at the Tenant’s own expense, keep thePremises in good order, condition and repair during the Term, except that theLandlord, at the Landlord’s expense (unless caused by the fault or negligenceof the Tenant, its contractors, agents, or employees) shall keep in repair theelevators, electrical lines, plumbing fixtures located in the Building (exceptthose installed by Tenant) heating and air-conditioning equipment,outside walls, including windows, and roof. In addition, if any damage to the Building or Premises results from anyact or neglect of Tenant or Tenant’s agents, employees or invitees, theLandlord may, at the Landlord’s option, repair such damages and the Tenantshall thereupon pay to the Landlord the total cost of such repair.  The Tenant at the Tenant’s expense, shallcomply with all laws and ordinances, and all rules and regulations of allgovernmental authorities and of all insurance bodies at any time in force,applicable to the Premises or to the Tenant’s use thereof, except that theTenant shall not hereby be under any obligation to comply with any law,ordinance, rule or regulation requiring any structural alteration of or inconnection with the Premises, unless such alteration is required by reason of acondition which has been created by, or at the instance of, the Tenant, or isrequired by reason of a breach of any of the Tenant’s covenants and agreementshereunder.  Landlord shall not berequired to repair any injury or damage by fire or other cause, or to make anyrepairs or replacements of any panels, decoration, office fixtures, railing,ceiling, floor covering, partitions, or any other property installed in thePremises by the Tenant.

**21.          UNTENANTABILITY. **If the Premises are madeuntenantable in whole or in part by fire or other casualty the Rent, untilrepairs shall be made or the Lease terminated as hereinafter provided, shall beapportioned on a per diem basis according to the part of the Premises which isusable by the Tenant, if, but only if, such fire or other casualty be notcaused by the gross negligence or willful misconduct of the Tenant, itscontractors, agents, or employees.  Ifsuch damage shall be so extensive that the Premises cannot be restored toBuilding Standard by the Landlord within a period of four (4) months, eitherparty shall have the right to cancel this Lease by notice to the other given atany time within thirty (30) days after the date of such damage, except that ifsuch fire or casualty resulted from the gross negligence or willful misconductof  Tenant the Tenant shall have no rightto cancel.  If a portion of the Buildingother than the Premises shall be so damaged that in the opinion of the Landlordthe Building should be restored in such a way as to alter the Premisesmaterially, the Landlord may cancel this Lease by notice to the Tenant given atany time within thirty (30) days after the date of such damage.  In the event of giving effective noticepursuant to this section, this Lease and the term and the estate hereby grantedshall expire on the date fifteen (15) days after the giving of such notice asfully and completely as if such date were the date hereinbefore set for theexpiration of the Term of this Lease.  Ifthis Lease is not so terminated, the Landlord will promptly repair the damage.  In the event that Landlord has not completedany such repairs within six (6) months after the date of casualty (as the samemay be extended, not to exceed eight [8] months after the date of casualty, dueto delays outside Landlord’s reasonable control) (the “Outside Repair Date”),at any time after the Outside Repair Date, but prior to the date that suchrepairs are completed, Tenant may give notice to Landlord of its intent toterminate this Lease, and if Landlord still fails to complete the repairswithin thirty (30) days of Tenant’s notice, Tenant may, as its sole andexclusive remedy, terminate this Lease.

**22.          EMINENT DOMAIN**.

## (a)           In the event that title to the whole or any part of thePremises shall be lawfully condemned or taken in any manner for any public orquasi-public use, this Lease and the term and estate hereby granted shallforthwith cease and terminate as of the date of vesting of title and theLandlord shall be entitled to receive the entire award, the Tenant herebyassigning to the Landlord the Tenant’s interest therein, if any; provided,however, that Tenant shall be entitled to claim any proceeds for the taking ofTenant’s trade fixtures, equipment or personal property and for relocationexpenses so long as any such claim does not diminish any award to Landlord.

 

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## (b)           In the event that title to a part of the Building otherthan the Premises shall be so condemned or taken and if in the opinion of theLandlord, the Building should be restored in such a way as to alter thePremises materially, the Landlord may terminate this Lease and the term andestate hereby granted by notifying the Tenant of such termination within sixty(60) days following the date of vesting of title, and this Lease and the termand estate hereby granted shall expire on the date specified in the notice oftermination, not less than sixty (60) days after the giving of such notice, asfully and completely as if such date were the date hereinbefore set for theexpiration of the Term of this Lease, and the Rent hereunder shall beapportioned as of such date.

**23.          TENANT’S DEFAULT AND LANDLORD’SREMEDIES. **All rightsand remedies of the Landlord herein enumerated shall be cumulative, and noneshall exclude any other right or remedy allowed by law.  In addition to the other remedies in thisLease provided, the Landlord shall be entitled to restraint by injunction ofthe violation or attempted violation of any of the covenants, agreements orconditions of this Lease.

## (a)           Any one of the following events shall be deemed to be an “Eventof Default” by Tenant under this Lease:

### (i)            Tenant fails to payany installment of Annual Base Rental or Additional Rent when due, or any otherpayment or reimbursement to Landlord required herein when due, and such failureshall continue for a period of five (5) days from the date such payment was dueand Landlord shall provide Tenant notice of said non-payment and allow anadditional five (5) day period to cure; however, Landlord shall only berequired to provide said notice once to Tenant in any twelve (12) month period;

### (ii)           Tenant defaults inthe prompt and full performance of any other provision of this Lease and suchdefault continues for thirty (30) days after notice from Landlord to Tenant;or, if such breach or noncompliance cannot be reasonably cured within suchthirty (30) day period, Tenant does not, in good faith, commence to cure suchbreach or noncompliance within such thirty (30) day period;

### (iii)          If the Tenant shall(a) apply for consent to the appointment of a receiver, trustee orliquidator of the Tenant or of all or a substantial part of its assets;(b) admit in writing its inability to pay its debts as they come due;(c) make a general assignment for the benefit of creditors; (d) filea petition or any answer seeking reorganization or arrangement with creditorsor to take advantage of any insolvency law other than the Federal BankruptcyCode; (e) file an answer admitting the material allegations of a petitionfiled against the Tenant in any reorganization or insolvency proceeding, otherthan a proceeding commenced pursuant to the Federal Bankruptcy Code, or if anyorder, judgment or decree shall be entered by any court of competentjurisdiction, except for a bankruptcy court or a federal court sitting as abankruptcy court, adjudicating the Tenant insolvent or approving a petition seekingreorganization of the Tenant or appointing a receiver, trustee or liquidator ofthe Tenant or of all or a substantial part of its assets; or (f) make atransfer in fraud of creditors, then in any such events, in addition to otherrights provided for herein, Landlord may give to the Tenant a notice ofintention to end the Term of this Lease, specifying a day not earlier than ten(10) days thereafter, and upon the giving of such notice the Term of this Leaseand all rights, title and interest of the Tenant hereunder shall expire asfully and completely on the day so specified as if that day were the dateherein specifically fixed for the expiration of the Term;

### (iv)          IntentionallyOmitted;

### (v)           Tenant’s interestunder this Lease or in the Premises is transferred or passes to, or devolvesupon, any other person or entity in violation of Section 17 of this Lease;

 

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### (vi)          Tenant shall fail todischarge any lien placed upon the Premises or upon Tenant’s interest in thePremises by any creditor and such lien is not discharged or disposed of inaccordance with this Lease; or

### (vii)         Except in suchcircumstances that would constitute a Permitted Transfer pursuant to theprovisions of Section 17(n) hereof, the commencement of steps or proceedingstoward the dissolution, winding up, or other termination of the existence ofthe Tenant or of any guarantor of the Tenant’s obligations, or toward theliquidation of either of their respective assets.

## (b)           Upon the occurrence of any of such Event of Defaultdescribed herein, Landlord shall have the option to pursue any or all of thefollowing remedies:

### (i)            If Tenant fails tomake any payment or perform any other act on its part to be made or performedunder this Lease, the Landlord may, but shall not be obligated to, after reasonablenotice to Tenant and without waiving or releasing the Tenant from anyobligation under this Lease, make such payment or perform such other act to theextent the Landlord may deem desirable, and in connection therewith to payexpenses and employ counsel.  The Tenantagrees to pay reasonable attorney’s fees if legal action is required to enforceperformance by Tenant of any condition, obligation or requirementhereunder.  All sums so paid by theLandlord and all expenses in connection therewith, together with interestthereon at the rate of Twelve Percent (12%) per annum from the date of payment,shall be deemed Additional Rent hereunder and payable at the time of anyinstallment of Rent thereafter becoming due, and the Landlord shall have thesame rights and remedies for the non-payment thereof, or of any otherAdditional Rent, as in the case of default in the payment of Rent.

### (ii)           Terminate thisLease by giving to the Tenant a notice of intention to end the Term of thisLease, specifying a day not earlier than three (3) days thereafter, and, uponthe giving of such notice, this Lease shall terminate on the day so specified,except as to Tenant’s liability to pay rent and other charges for the remainingTerm of this Lease, together with all arrearages, whereupon Tenant shallimmediately surrender possession of the Premises to Landlord, and hereby grantsto the Landlord full and free license to enter into and upon the Premises insuch event with or without process of law and to repossess the Premises as theLandlord’s former estate and, if Tenant fails so to do, Landlord may, withoutprejudice to any other remedy which it may have for possession or arrearages inAnnual Base Rent, Additional Rent, or other charges, enter upon and takepossession of the Premises and expel or remove Tenant, as well as any otherperson who may be occupying such Premises or any part thereof, by force ifnecessary, including removal of all personal property therein, without beingliable for prosecution or any claim of damages therefor, and change the lockson the Premises.

### (iii)          If the Landlordbecomes entitled so to elect, and the Landlord elects, without terminating theLease, to endeavor to relet the Premises, the Landlord may, at the Landlord’soption, enter into the Premises, remove the Tenant’s signs, personal property,and other evidence of tenancy, and take and hold possession thereof, withoutsuch entry and possession terminating the Lease or releasing the Tenant, inwhole or in part, from the Tenant’s obligation to pay the Rent hereunder forthe full Term as provided in the Lease. Upon and after entry into possession without termination of the Lease,the Landlord may relet the Premises or any part thereof for the account of theTenant to any person, firm or corporation other than the Tenant for such rent,for such time and upon such terms as the Landlord shall determine to bereasonable.  In any such case, theLandlord may make repairs, alterations and additions in or to the Premises andredecorate the same to the extent deemed by the Landlord necessary ordesirable.

## (c)           If this Lease is terminated under the provisions ofSection 23(b)(ii) or if the Landlord shall reenter the Premises under theprovisions of Section 23(b)(iii), or in the event of the termination ofthis Lease, or of reentry, by or under any summary or other proceeding oraction of any provision of law by reason of default hereunder on the part ofthe Tenant, Tenant 

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## shall pay to Landlord as damages in an amountequal to the Rent and other sums which would have been owed by Tenant hereunderfor the balance of the Term had this Lease, less the net proceeds, if any, ofany reletting of the Premises by Landlord, after deducting all Landlord’sexpenses in connection with such reletting, including, but without limitation,all repossession costs, brokerage commissions, legal expenses, attorneys’ fees,expenses of employees, alteration and repair costs, and expenses of preparationfor such reletting of the Premises.  Asused herein, the phrase “Preparation for such Reletting” shall mean restoringthe Premises to a condition that is suitable for a new tenant, including anyand all costs for tenant finish work for a new tenant.  Landlord shall be entitled to collect suchdamages from Tenant monthly on the days on which the Rent and other amountswould have been payable under this Lease, and Landlord shall be entitled toreceive the same from Tenant on each such day. Alternatively, at the option of Landlord, Landlord shall be entitled torecover forthwith against Tenant, as damages for the loss of the bargain andnot as a penalty:  (i) the worth atthe time of award of any unpaid Rent and other sums due and payable which hadbeen earned prior to return of possession of the Premises to Landlord; plus(ii) the worth at the time of award of the amount of unpaid Rent and othersums which would have been payable after the date of return of possession ofthe Premises until the time of award which exceeds the amount of such Rent lossthat Tenant proves could have been reasonably avoided by Landlord; plus(iii) the worth at the time of award of the amount by which the unpaidRent including sums for estimated Operating Costs which would have beenincurred and any other sums due for the balance of the Term after the time of awardthat exceeds the amount that Tenant proves could be reasonably avoided byLandlord; plus (iv) any other amounts to compensate Landlord for thedetriment proximately caused by Tenant’s failure to perform Tenant’sobligations under this Lease, or which, in the ordinary course of things, wouldbe likely to result therefrom, including, without limitation, any costs orexpenses incurred by Landlord: (i) in retaking possession of the Premises; (ii) inmaintaining, repairing, preserving, restoring, replacing, cleaning, altering orrehabilitating the Premises or any portion thereof, including such acts forreletting to a new tenant or tenants; (iii) for leasing commissions; or(iv) for any other costs necessary or appropriate to relet the Premises;plus (v) at Landlord’s election, such other amounts and remedies inaddition to or in lieu of the foregoing as may be permitted from time to timeby the laws of the State of Colorado. Any amounts owed by Tenant to Landlord shall bear pre- and post-judgmentinterest at Twelve Percent (12%) compounded annually until paid.

The “worth at the time of award” of the amounts dueprior to the date of the award is computed by allowing interest compoundedannually, at the rate of Two Percent (2%) over the prime rate charged from timeto time by Wells Fargo Bank, N.A., in Denver, Colorado, or its successor(s), onall unpaid Rent and other sums due and payable. The “worth at the time of award” of the amounts due after the date ofthe award is computed by discounting such amount at the discount rate equal tothe prime rate charged from time to time by Wells Fargo Bank, N.A., in Denver,Colorado, or its successor(s).

## (d)           Tenant agrees it would be difficult for the Landlord toprove the amount of damages it will incur as a result of any breach of theLease by Tenant.  Tenant hereby agreesthat providing for the above liquidated sums in addition to, and not in lieuof, other amounts due and owing amount to a reasonable sum due and owing theLandlord in the event of a breach of this Lease by Tenant.

## (e)           Any and all property which may be removed from thePremises by the Landlord pursuant to the authority of the Lease or of law, towhich the Tenant is or may be entitled, may be handled, removed or stored bythe Landlord at the risk, cost and expense of the Tenant, and the Landlordshall in no event be responsible for the value, preservation or safekeepingthereof.  The Tenant shall pay to theLandlord, upon demand, any and all expenses incurred in such removal and allstorage charges against such property so long as the same shall be in theLandlord’s possession or under the Landlord’s control.  Any such property of the Tenant not removedfrom the Premises or retaken from storage by the Tenant within thirty (30) daysafter the end of the Term or of the Tenant’s right to possession of thePremises, however terminated, shall be conclusively deemed to have been foreverabandoned by the Tenant and either may be retained by Landlord as its propertyor may be disposed of in such manner as Landlord may see fit.

**24.          SALE AND ASSIGNMENT. **Landlord shall have fullright to sell or assign its interest and rights to this Lease to any otherperson, firm or corporation capable of accepting such sale or assignment.  In the event that the purchaser or assigneeexpressly covenants and 

 

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agrees to accept andassume all the covenants, conditions and stipulations of the Lease and tocomply with and be bound thereby, and to assume all liability of Landlordtheretofore or thereafter arising, then Landlord shall thereupon be releasedfrom all liability under this Lease, and thereafter all liability in respectthereof shall rest upon the assignee alone. Any purchaser or assignee from Landlord may, subject to the provisionhereof and upon the same terms and conditions, sell or assign his or itsinterest in and rights to this lease and like subsequent assignments may bemade from time to time by anyone at any time owning such interest in and rightsto this lease.

**25.          SUBORDINATION OF LEASE. **The rights of the Tenantunder this Lease shall be and are subject and subordinate at all times to allground leases, and/or underlying leases, if any, now or hereafter in forceagainst the Property, and to the lien of any mortgage or mortgages now orhereafter in force against such leases and/or the Property, and to all advancesmade or hereafter to be made upon the security thereof, and to all renewals,modifications, consolidations, replacements and extensions thereof.  This section is self-operative and nofurther instrument of subordination shall be required.  In confirmation of such subordination, Tenantshall promptly execute such further commercially reasonable instruments as maybe requested by the Landlord.  Tenant, atthe option of any mortgagee, agrees to attorn to such mortgagee in the event ofa foreclosure sale or deed in lieu thereof.

**26.          NOTICES AND CONSENTS. **All notices, demands,requests, consents or approvals which may or are required to be given by eitherparty to the other shall be in writing and shall be deemed given when sent byUnited States Certified or Registered Mail, postage prepaid, (a) if forthe Tenant, addressed to the Tenant at the Building, or at such other place asthe Tenant may from time to time designate by notice to the Landlord, or(b) if for the Landlord, addressed to the management office of theLandlord in the Building, with a copy to Landlord c/o J.P. Morgan InvestmentManagement, Inc., 245 Park Avenue, Second Floor, New York, New York  10167, Attention:  Asset Manager, or at such other place as theLandlord may from time to time designate by notice to the Tenant.  All consents and approvals provided forherein must be in writing to be valid. The date of service of such notices shall be the date such notices arereceived or refused, as the case may be, as evidenced by addressee’s registryor certification receipt.  If the term “Tenant”as used in this Lease refers to more than one person, any notice, consent,approval, request, bill, demand or statement, given as aforesaid to any one ofsuch persons shall be deemed to have been duly given to Tenant.

**27.          SPRINKLERS. **If there now is or shall beinstalled in the Building a “sprinkler system”, and such system or any of itsappliances shall be damaged or injured or not in proper working order by reasonof any act or omission of the Tenant, Tenant’s agents, servants, employees,licensees or visitors, the Tenant shall forthwith restore the same to goodworking conditions at its own expense, and if the Board of Fire Underwriters ofFire Insurance Exchange or any bureau, department or official of the state orcity government, require or recommend that any changes, modifications,alterations or additional sprinkler heads or other equipment be made orsupplied by reason of the Tenant’s business, or the location of partitions,trade fixtures, or other contents, of the Premises, or for any other reason, orif any such changes, modifications, alterations, additional sprinkler heads orother equipment, become necessary to prevent the imposition of a penalty orcharge against the full allowance for a sprinkler system in the fire insurancerate as fixed by said Exchange, or by any fire insurance company, Tenant shall,at the Tenant’s expense, promptly make and supply such changes, modifications,alterations, additional sprinkler head or other equipment.

**28.          NO ESTATE IN LAND. **This contract and Leaseshall create the relationship of landlord and tenant between Landlord andTenant; no estate shall pass out of Landlord; and Tenant has only a usufructwhich is not subject to levy and sale.

**29.          INVALIDITY OF PARTICULARPROVISIONS. **If anyclause or provision of this Lease is or becomes illegal, invalid, orunenforceable because of present or future laws or any rule or regulation ofany governmental body or entity, effective during its term, the intention ofthe parties hereto is that the remaining parts of this Lease shall not beaffected thereby unless such invalidity is, in the sole determination ofLandlord, essential to the rights of both parties in which event Landlord hasthe right to terminate this Lease on written notice to Tenant.

 

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**30.          WAIVER OF BENEFITS. **Tenant waives the benefitsof all existing and future Rent Control Legislation and Statutes and similargovernmental rules and regulations, whether in time of war or not, to theextent permitted by law.

**31.          WAIVER OF TRIAL BY JURY. **It is mutually agreed byand between Landlord and Tenant that the respective parties hereto shall andthey hereby do waive trial by jury in any action, proceeding or counterclaimbrought by either of the parties hereto against the other on any matterswhatsoever arising out of or in any way connected with this Lease, therelationship of landlord and tenant, Tenant’s use or occupancy of the Premises,and any emergency statutory or any other statutory remedy.

**32.          SECURITY DEPOSIT. **See Rider to Lease,Paragraph 7.

**33.          SUBSTITUTE PREMISES**.  Intentionally Omitted.

**34.          PARKING**.  Tenant shall have the right, during the termof this Lease, to rent unreserved garage stalls for the parking of motor vehiclesused by Tenant, its officers and employees at a ratio of one (1) such stall forevery one thousand (1,000) rentable square feet leased by Tenant, at themonthly rates and upon the terms and conditions as may from time to time beestablished by Landlord, or the operator of the garage facility.  Such garage stalls shall be at locationsdesignated by Landlord or the operator of the garage facility.  In the event Tenant does not continuously andat all times following that date which is six (6) months following theCommencement Date elect to pay rent on the garage stalls, Landlord shall havethe right to cancel Tenant’s right to use said garage stalls.  In addition, Tenant shall have the right toconvert up to eight (8) of the foregoing unreserved garage stalls to stalls inthe reserved area of the parking garage facility.  In the event that Tenant elects to convertsuch stalls to reserved stalls, the use of such reserved stalls shall besubject to the terms and conditions of this paragraph, except that they shallbe located in the reserved area of the parking garage, as such area may bedesignated by Landlord or the operator of the garage facility from time totime, and Tenant acknowledges that the designated area for such reservedparking spaces will not necessarily be located close to the Building entrancesor elevators or otherwise “close in” parking. In no event shall Tenant be entitled to utilize parking spaces in excessof the foregoing 1:1,000 parking ratio, taking into account both reserved and unreservedspaces.  The current parking charges are$155.00 per space per month (plus any taxes thereon) for unreserved spaces and$210.00 per space per month (plus any taxes thereon) for reserved spaces, whichrates are subject to change from time to time as more fully set forthabove.  In addition, and subject toavailability, Landlord will provide Tenant with additional permits allowingaccess to unreserved spaces in the Parking Facilities (each, a “Month-to-MonthPermit” and collectively, the “Month-to-Month Permits”) upon no less thanthirty (30) days’ prior written request by Tenant (“Tenant’s Request”).  The foregoing Month-to-Month Permits shall bemade available on a month-to-month basis only, subject to availability, andeither Landlord or Tenant shall have the ability to cancel any or all of theMonth-to-Month Permits at any time upon thirty (30) days’ prior writtennotice.  In the event that such requestedMonth-to-Month Permits are not then available at the time that Tenant providesTenant’s Request, Landlord shall so advise Tenant, and Tenant shall revise itsMonth-to-Month Permit request to a number which is mutually agreeable to theparties, based on, among other things, availability of the requestedMonth-to-Month Permits.  In no event willLandlord have any obligation to provide Month-to-Month Permits if the same arenot then available, and Landlord shall have no obligation to cause any suchMonth-to-Month Permits to be made available; provided, however, Landlord agreesthat Tenant shall have preference for Month-to-Month Permits over parkers inthe garage that are not tenants of the Building.  If such Month-to-Month Permits are thenavailable, Tenant shall pay Landlord’s then current parking charges for eachMonth-to-Month Permit (plus any taxes thereon) from the date of the taking ofsuch Month-to-Month Permits on a month-to-month basis, subject to terminationby either party as provided above. During the period of use of any such Month-to-Month Permits by Tenant,such Month-to-Month Permits shall be subject to all other terms and conditionsrelated to parking contained in the Lease, including without limitation allterms and conditions of this Paragraph.

**35.          BROKERAGE**.  See Rider to Lease, Paragraph 9.

 

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**36.          ENVIRONMENTAL PROVISIONS**.

## (a)           Tenant’s Representations, Warranties and Covenants.  Tenant represents, warrants and covenantsthat (1) the Premises will not be used for any dangerous, noxious oroffensive trade or business and that it will not cause or maintain a nuisancethere, (2) it will not bring, generate, treat, store, use or dispose ofHazardous Substances (as hereinafter defined) at the Premises, (3) itshall at all times comply with all Environmental Laws (as hereinafter defined)and shall cause the Premises to comply, and (4) Tenant will keep thePremises free of any lien imposed pursuant to any Environmental Laws.  Premises for the purposes of this Articleshall mean the Building and Property, including parking areas.  Upon the request of Landlord, Tenant shallprovide Landlord with evidence of compliance with Environmental Laws.  At the expiration or earlier termination ofthis Lease, Tenant shall surrender the Premises to Landlord free of any and allHazardous Substances and in compliance with all Environmental Laws and to thecomplete satisfaction of Landlord.

## (b)           Subject to the provisions of this Article and to the priorwritten consent by Landlord which may be given or withheld in Landlord’s solediscretion, Tenant shall be entitled to use and store only those HazardousSubstances that are necessary for Tenant’s business, provided that such usageand storage is in full compliance with all applicable Environmental Laws.

## (c)           Tenant will cooperate with Landlord and allow Landlord andLandlord’s representatives access to any and all parts of the Premises and tothe records of Tenant with respect to the Premises for environmental inspectionpurposes at any reasonable time.  Inconnection therewith, Tenant hereby agrees that Landlord or Landlord’srepresentatives may perform any testing upon or of the Premises that Landlorddeems reasonably necessary for the evaluation of environmental risks, costs, orprocedures, including soils or other sampling or coring.

## (d)           Violations — Environmental Defaults:

### (i)            Tenant shall giveto Landlord prompt verbal and follow-up written notice as soon as it becomesaware of any actual or threatened spills, releases or discharges of HazardousSubstances on the Premises, caused by the acts or omissions of Tenant or itsagents, employees, representatives, invitees, licensees, subtenants, customersor contractors.  Tenant covenants topromptly investigate, clean up and otherwise remediate any spill, release ordischarge of Hazardous Substances caused by the acts or omissions of Tenant orits agents, employees, representatives, invitees, licensees, subtenants,customers or contractors at Tenant’s sole cost and expense; such investigation,clean up and remediation to be performed in accordance with all EnvironmentalLaws and to the reasonable satisfaction of Landlord, Landlord’s lenders, ifany, and any governmental agency, and after Tenant has obtained Landlord’swritten consent, which shall not be unreasonably withheld.  Tenant shall return the Premises to thecondition existing prior to the introduction of any such Hazardous Substances.

### (ii)           In the event of(1) a violation of an Environmental Law which is Tenant’s responsibilityhereunder, (2) a release, spill or discharge of a Hazardous Substance onor from the Premises, (3) the discovery of an environmental conditionrequiring response which violation, release, or condition is attributable tothe acts or omissions of Tenant, its agents, employees, representatives,invitees, licensees, subtenants, customers or contractors, or (4) anemergency environmental condition which is Tenant’s responsibility hereunder(collectively “Environmental Defaults”), Landlord shall have the right, but notthe obligation, to immediately enter the Premises, to supervise and approve anyactions taken by Tenant to address the violation, release or environmentalcondition; and in the event Tenant fails to immediately address such violation,release, or environmental condition, or if the Landlord deems it necessary,then Landlord may perform, at Tenant’s expense, any lawful actions necessary toaddress the violation, release, or environmental condition.

### (iii)          Landlord has theright, but not the obligation, to cure any Environmental Defaults, has theright to suspend some or all of the operations of the Tenant until it hasdetermined to is sole satisfaction that appropriate measures 

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### have been taken, and has the right to terminate the Lease upon theoccurrence of an Environmental Default.

## (e)           Additional Rent. Any expenses which the Landlord incurs, which are to be at Tenant’sexpense pursuant to this Article, will be considered Additional Rent under thisLease and shall be paid by Tenant on demand by Landlord.

## (f)            Indemnification. Tenant shall indemnify, defend (with counsel approved by Landlord) andhold Landlord and Landlord’s affiliates, shareholders, directors, officers,employees and agents harmless from and against any and all claims, judgments,damages (including consequential damages), penalties, fines, liabilities,losses, suits, administrative proceedings, costs and expenses of any kind ornature, known or unknown, contingent or otherwise, which arise out of or in anyway related to the acts or omissions of Tenant, its agents, employees,representatives, invitees, licensees, subtenants, customers or contractorsduring or after the term of this Lease (including, but not limited to,attorney, consultant, laboratory and expert fees and including withoutlimitation, diminution in the value of the Premises, damages for the loss orrestriction on use of rentable or usable space or of any amenity of thePremises and damages arising from any adverse impact on marketing of space),arising from or related to the use, presence, transportation, storage,disposal, spill, release or discharge of Hazardous Substances on or about thePremises.

## (g)           Definitions.

### (i)            “HazardousSubstance” means (A) asbestos and any asbestos-containing material and anysubstance that is then defined or listed in, or otherwise classified pursuantto, any Environmental Laws or any applicable laws or regulations as a “hazardoussubstance”, “hazardous material”, “hazardous waste”, “infectious waste”, “toxicsubstance”, “toxic pollutant” or any other formation intended to define, listor classify substances by reason of deleterious properties such asignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductivetoxicity, or Toxicity Characteristic Leaching Procedure (TCLP) toxicity,(B) any petroleum and drilling fluids, produced waters, and other wastesassociated with the exploration, development or production of crude oil naturalgas, or geothermal resource, and (C) petroleum products, polychlorinatedbiphenyls, urea formaldehyde, radon gas, radioactivity material (including anysource, special nuclear, or by-product material), and medical waste.

### (ii)           “Environmental Laws”collectively means and includes all present and future laws and any amendments(whether common law, statute, rule, order, regulation or otherwise), permits,and other requirements or guidelines of governmental authorities applicable tothe Premises and relating to the environmental and environmental conditions orto any Hazardous Substance (including, without limitation, CERCLA, 42 U.S.C.§9601, et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C.,§6901, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §1801, etseq.; the Federal Water Pollution Control Act, 33 U.S.C. §1251, et seq.; theClean Air Act, 33 U.S.C. §7401, et seq.; the Clean Air Act, 42 U.S.C. §741, etseq.; the Toxic Substances Control Act, 15 U.S.C. §2601-2629; the Safe DrinkingWater Act, 42 U.S.C. §300f-300j; the Emergency Planning and CommunityRight-To-Know Act, 42 U.S.C. §1101, et seq.; and any so-called “Super Fund” or “SuperLien” law, any law requiring the filing of reports and notices relating tohazardous substances, environmental laws administered by the EnvironmentalProtection Agency, and any similar state and local laws and regulations, allamendments thereto and all regulations, orders, decisions, and decrees now orhereafter promulgated thereunder concerning the environment, industrial hygieneor public health or safety).

## (h)           Survival.  Theprovisions of this Article shall survive the expiration or earlier terminationof this Lease.

 

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**37.          TELECOMMUNICATIONS**.

## (a)           Limitation of Responsibility.  Tenant shall have the right to use anytelecommunication provider chosen by Tenant, subject to reasonable requirementsof Landlord to allocate space in the Building’s conduits and/or equipment rooms.  In no instance shall Landlord charge atelecommunications provider chosen by Tenant fees, rents or other sums in orderfor such provider to serve Tenant in the Premises; provided, however, thatnothing contained in the foregoing shall be deemed to preclude Landlord fromcharging any such telecommunications provider Landlord’s standard charge foraccess to areas outside the Premises, including without limitation, risercables or terminal blocks.  If there ismore than one tenant on a floor, Landlord will allocate hook ups to theterminal block based on the proportion of rentable square feet that each tenantoccupies on the floor.  Tenantacknowledges and agrees that all telephone and telecommunications services desiredby Tenant shall be ordered and utilized at the sole cost and expense of Tenant,subject to reimbursement from the tenant allowance. Subject to Landlord’ssupervision and approval, Tenant shall have the right to use the riser cablesby installing telecommunication lines from the Premises to the terminal blockon the floor or floors on which the Premises are located (such lines, and anyother voice/data cables, lines or wires used or installed by or for Tenant andserving the Premises are referred to as the “telecommunication lines”).Landlord makes no representations or warranties with respect to the capacity,suitability or design of the riser cables or terminal blocks.  The installation and hook-up oftelecommunication lines by Tenant will be subject to Paragraph 21 of thisLease. Tenant will have no rights or interest in the riser cables and terminalblocks in the Building therein except as set forth herein.  Other than in the case of Landlord’s grossnegligence or willful misconduct, Landlord shall not be liable for: (a) anydamage to Tenant’s or its subtenants’ telephone lines, telephones or otherequipment connected to the telecommunication lines, (b) interruption or failureof, or interference with, telephone or other service coming through thetelecommunication lines to the Premises, or (c) unauthorized eavesdropping orwiretapping.  All telephone andtelecommunications desired by Tenant must be ordered and utilized at the soleexpense of Tenant. All of Tenant’s telecommunications equipment must be andremain solely in the Premises, in accordance with this Lease and with thereasonable rules and regulations adopted by Landlord from time to time. Unlessotherwise specifically agreed to in writing, Landlord shall have noresponsibility for the maintenance of Tenant’s telecommunications equipment,including wiring; nor for any wiring or other infrastructure to which Tenant’stelecommunications equipment may be connected. Tenant agrees that, to the extent any such service is interrupted,curtailed or discontinued, unless caused by the gross negligence or willfulmisconduct of Landlord, Landlord shall have no obligation or liability withrespect thereto and it shall be the sole obligation of Tenant at its expense toobtain substitute service.

## (b)           Necessary Service Interruptions.  Landlord shall have the right, uponreasonable prior notice to Tenant, to interrupt or turn off telecommunicationsfacilities in the event of emergency or as necessary in connection with repairsto the Building or installation of telecommunications equipment for other tenantsof the Building.

## (c)           Removal of Equipment, Wiring and Other Facilities.  Any and all telecommunications equipmentinstalled in the Premises or elsewhere in the Building by or on behalf ofTenant, including wiring, or other facilities for telecommunicationstransmittal, shall be removed prior to the expiration or earlier termination ofthe Lease term, by Tenant at its sole cost or, at Landlord’s election, byLandlord at Tenant’s sole cost, with the cost thereof to be paid as AdditionalRent.  Landlord shall have the right,however, upon written notice to Tenant to require Tenant to abandon and leavein place, without additional payment to Tenant or credit against Rent, any andall telecommunications wiring and related infrastructure, or selected componentsthereof, whether located in the Premises or elsewhere in the Building.  Tenant covenants that Tenant shall be thesole owner of such wiring and related infrastructure and shall have good rightto surrender said wiring and related infrastructure, which is free of all liensand encumbrances and shall be in good working order.

## (d)           New Provider Installations.  In the event that Tenant wishes at any timeto utilize the services of a telephone or telecommunications provider whoseequipment is not then servicing the Building, no such provider shall bepermitted to install its lines or other equipment within the Building withoutfirst securing the prior written approval of the Landlord, which approval maynot be unreasonably withheld, conditioned or delayed by Landlord. The partiesagree that without limiting Landlord’s rights to reasonably approve and/orreasonably condition approval, Landlord will not be deemed to have unreasonablywithheld its approval if the Building does not have the capacity (as reasonablydetermined by Landlord and confirmed by an independent third partytelecommunications engineer retained by Tenant at Tenant’s sole cost) to 

 

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## support another service provider.  Landlord’s approval shall not be deemed anykind of warranty or representation by Landlord, including, without limitation,any warranty or representation as to the suitability, competence, or financialstrength of the provider. Without limitation of the foregoing standard, unlessall of the following conditions are satisfied to Landlord’s commerciallyreasonable satisfaction, Landlord shall decline to give its approval:

### (i)            Landlord shallincur no expenses whatsoever with respect to any aspect of the provider’sprovision of its services, including without limitation, the costs of installation,materials, services and supervision;

### (ii)           Prior tocommencement of any work in or about the Building by the provider, the providershall supply Landlord with such written indemnities, insurance, financialstatements, and such other items as Landlord determines to be necessary toprotect its financial interests and the interests of the Building relating tothe proposed activities of the provider;

### (iii)          The provider agreesto abide by such rules and regulations, building and other codes, job site rulesand such other requirements as are determined by Landlord to be necessary toprotect the interests of the Building, the Tenants in the Building andLandlord, in the same or similar manner as Landlord has the right to protectitself and the Building with respect to proposed alterations;

### (iv)          Landlord reasonablydetermines that there is sufficient space in the Building for the placement ofthe provider’s equipment and materials;

### (v)           The provider agreesto abide by Landlord requirements, if any, that provider use existing buildingconduits and pipes or use building contractors (or other contractors approvedby Landlord);

### (vi)          Landlord receivesfrom the provider such compensation as is determined by Landlord to compensateit for space used in the Building for the storage and maintenance of theprovider’s equipment, for the fair market value of a provider’s access to theBuilding, and the costs which may reasonably be expected to be incurred byLandlord;

### (vii)         The provider agreesto deliver to Landlord detailed “as built” plans immediately after theinstallation of the provider’s equipment is complete; and

### (viii)        All of the foregoingmatters are documented in a written license agreement between Landlord and theprovider, the form and content of which is reasonably satisfactory to Landlord;

## (e)           Limit of Default or Breach.  Notwithstanding any provision of theproceeding paragraphs to the contrary, the refusal of Landlord to grant itsapproval to any prospective telecommunications provider shall not be deemed a defaultor breach by Landlord of its obligation under this Lease unless and untilLandlord is adjudicated to have acted recklessly or maliciously with respect toTenant’s request for approval, and in that event, Tenant shall still have noright to terminate the Lease or claim an entitlement to rent abatement, but mayas Tenant’s sole and exclusive recourse seek a judicial order of specificperformance compelling Landlord to grant its approval as to the prospectiveprovider in question.  The provisions ofthis paragraph may be enforced solely by Tenant and Landlord, are not for thebenefit of any other party (including any subtenant), and specifically butwithout limitation, no telephone or telecommunications provider shall be deemeda third party beneficiary of this Lease.

## (f)            Installation and Use of Wireless Technologies.  Tenant shall not utilize any wirelesscommunications equipment (other than usual and customary cellular telephones),including antennae and satellite receiver dishes, within the Premises or theBuilding, without Landlord’s prior written consent.  Such consent may be conditioned in such amanner so as to protect Landlord’s financial interests and the interests of theBuilding, and the other Tenants 

##  

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## therein, in a manner similar to the arrangementsdescribed in the immediately preceding paragraphs.

## (g)           Limitation of Liability for Equipment Interference.  In the event that telecommunicationsequipment, wiring and facilities or satellite and antennae equipment of anytype installed by or at the request of Tenant within the Tenant’s Premises, onthe roof, or elsewhere within or on the Building causes interference toequipment used by another party, Tenant shall assume all liability related tosuch interference.  Tenant shall usereasonable efforts, and shall cooperate with Landlord and other parties, topromptly eliminate such interference.  Inthe event that Tenant is unable to do so, Tenant will substitute alternativeequipment which remedies the situation. If such interference persists, Tenant shall discontinue the use of suchequipment, and, at Landlord’s discretion, remove such equipment according toforegoing specifications.

**38.          ERISA REPRESENTATION**.

## (a)           Tenant acknowledges that it has been advised that anaffiliate of Landlord is a collective investment fund (the “Fund”) which holdsthe assets of one or more employee benefit plans or retirement arrangementswhich are subject to Title I of the Employee Retirement Income Security Act of1974, as amended (“ERISA”) and/or Section 4975 of the Internal RevenueCode of 1986, as amended (the “Code”) (each a “Plan”), and with respect towhich Morgan Guaranty Trust Company of New York (“MGT”) is the Trustee andthat, as a result, Landlord may be prohibited by law from engaging in certaintransactions.

## (b)           Landlord hereby represents and warrants to Tenant that, asof the date hereof, that Landlord has no Plans whose assets are invested in theFund which, together with the interests of any other Plans maintained by thesame employer or employee organization, represent a collective interest in theFund in excess of Ten Percent (10%) of the total interests in the Fund (each, a“10% Plan”).  In the event Landlordparticipates in one or more 10% Plans (collectively, the “Existing 10% Plan”),Tenant shall comply with the provisions in Subparagraph (d) below.

## (c)           Tenant represents and warrants that as of the date hereof,and at all times while it is a Tenant under this Lease, one of the followingstatements is, and will continue to be, true: (1) Tenant is not a “party in interest” (as defined inSection 3(14) of ERISA) or a “disqualified person” (as defined inSection 4975 of the Code) (each a “Party in Interest”) with respect to theExisting 10% Plan or, (2) if Tenant is a Party in Interest, that:

(A)          neither Tenant nor its “affiliate” (asdefined in Section V(c) of PTCE 84-14, “Affiliate”) has, or duringthe immediately preceding one (1) year has, exercised the authority toeither:  (i) appoint or terminateMGT as the qualified professional asset manager (as defined inSection V(a) of PTCE 84-14, “QPAM”) of any of the assets of theExisting 10% Plan with respect to which Tenant or its Affiliate is a Party inInterest; or (ii) negotiate the terms of the management agreement withMGT, including renewals or modifications thereof, on behalf of the Existing 10%Plan; and

(B)           neither Tenant nor any entitycontrolling, or controlled by, Tenant owns a Five Percent (5%) or more interest(within the meaning of PTCE 84-14, “5% Interest”) in MGT or JPMorgan & Co. Incorporated.

## (d)           In the event that Landlord or the Fund notifies Tenant inwriting that a Plan other than the Existing 10% Plan may become a 10% Plan,Tenant will, within 10 days of such notification, inform the Fund inwriting as to whether it can make the same representations which it made inSubsection (c) of this section with respect to such prospective 10%Plan.  Thereafter, if based on suchrepresentations made by Tenant such Plan becomes a 10% Plan, Tenant representsand warrants that, at all times during the period Tenant is a tenant under theLease, one of the statements set forth in Subsection (c) will be true withrespect to such 10% Plan.

 

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**39.          SPECIAL STIPULATION**.

## (a)           No receipt of money by the Landlord from the Tenant afterthe termination of this Lease or after the service of any notice or after thecommencement of any suit, or after final judgment for possession of thePremises shall reinstate, continue or extend the term of this Lease or affectany such notice, demand or suit or imply consent for any action for whichLandlord’s consent is required.

## (b)           Intentionally Omitted.

## (c)           No waiver of any default of the Tenant hereunder shall beimplied from any omission by the Landlord to take any action on account of suchdefault if such default persists or be repeated, and no express waiver shallaffect any default other than the default specified in the express waiver andthat only for the time and to the extent therein stated.

## (d)           The term “Landlord” as used in this Lease, so far ascovenants or agreements on the part of the Landlord are concerned, shall belimited to mean and include only the owner or owners of the Landlord’s interestin this lease at the time in question, and in the event of any transfer ortransfers of such interest the Landlord herein named (and in case of anysubsequent transfer, the then transferor) shall be automatically freed andrelieved from and after the date of such transfer of all personal liability asrespects the performance of any covenants or agreements on the part of the Landlordcontained in this Lease thereafter to be performed.

## (e)           It is understood that the Landlord may occupy portions ofthe Building in the conduct of the Landlord’s business.  In such event, all references herein to othertenants of the Building shall be deemed to include the Landlord as an occupant.

## (f)            The term “City” as used in this Lease shall be understoodto mean the City in which the Property is located.

## (g)           All of the covenants of the Tenant hereunder shall bedeemed and construed to be “conditions” as well as “covenants” as though thewords specifically expressing or importing covenants and conditions were usedin each separate instance.

## (h)           The Tenant agrees that, upon receiving a written requestfrom the Landlord, the Tenant will within ten (10) days deliver a copy of thisLease, or, if the Landlord so requests, a Memorandum of this Lease, inrecordable form to the Landlord.  Tenantshall not record this Lease or a Memorandum thereof, without the prior writtenconsent of the Landlord.

## (i)            Neither party has made any representations or promise,except as contained herein, or in some further writing signed by the partymaking such representation or promise.

## (j)            In the absence of fraud, no person, firm or corporation,or the heirs, legal representatives, successors and assigns, respectively,thereof, executing this Lease for Landlord as agent, trustee or in any otherrepresentative capacity shall ever be deemed or held individually liablehereunder for any reason or cause whatsoever.

## (k)           In the event of variation or discrepancy, the Landlord’soriginal copy of the Lease shall control.

## (l)            Each provision hereof shall extend to and shall, as thecase may require, bind and inure to the benefit of the Landlord and the Tenantand their respective heirs, legal representatives and successors, and assignsin the event this Lease has been assigned with the express written consent ofthe Landlord.

## (m)          The Tenant agrees that it is Tenant’s sole obligation tocomply with the provisions of the Americans with Disabilities Act (“ADA”), asamended from time to time, with regard to the Premises.  Tenant agrees to indemnify, defend andprotect Landlord from any claim or suit brought against Landlord for Tenant’sfailure to comply with the Tenant’s obligations to maintain the Leased Premisespursuant to ADA.

## (n)           Each of Landlord and Tenant, and each person signing forthem, hereby warrants and represents to the other that the individual signingon behalf of that party is fully authorized to sign on behalf of, and to bind,such party and that, when signed by the parties, this 

##  

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## Lease shall be fully binding on the party onwhose behalf this Lease is executed by such individual.

## (o)           If there be more than one Tenant, the obligations underthe Lease imposed upon Tenant shall be joint and several.

## (p)           This Lease represents the entire agreement of Landlord andTenant with regard to the Lease, with all prior writings and verbalnegotiations with regard thereto being merged herein.

## (q)           Tenant acknowledges and agrees that Landlord, at its solecost and discretion, shall have the right to remeasure the Building at anytime.  Such remeasurement shall beperformed in accordance with the then existing standards established byBuilding Owners and Managers Association International (“BOMA”).  The Landlord has the sole right anddiscretion to implement the remeasurement of the Building and revise RentableArea, Rentable Area Leased, and any other remeasurements of the Building asprovided for in this Lease upon thirty (30) days’ notice to Tenant.

## (r)            It is understood and agreed that this Lease shall not bebinding until and unless all parties have signed it.

**40.          EXHIBITS. **Exhibits A, B and C and theRider to Lease, which Rider consists of 8 pages, are attached hereto andbecome part of this Lease.

**[The remainder of page intentionally left blank.]**

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IN WITNESSWHEREOF, Landlord and Tenant have respectively signed this Lease as of the dayand year first above written.
| **LANDLORD:**                                          | ** **       | **TENANT:**                                   |
|--------------------------------------------------------|------------------|-----------------------------------------------|
| ** **                                             | ** **       | ** **                                    |
|  SEVENTEENTH STREET PLAZA  REALTY HOLDING COMPANY |             | EVERGREEN ENERGY INC., a Delaware corporation |
|                                                   |             |                                          |
| By:                                                    | /s/ Dennis Keyes |                                          | By: | /s/ Kevin R. Collins |
| Print Name:                                            | Dennis Keyes     |                                          | Print Name: | Kevin R. Collins |
| Its:                                                   | Vice President   |                                          | Its: | EVP & COO |

 

 

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**EXHIBIT “A”**

**LEASE COMMENCEMENT DATE STATEMENT**

Date:                    ,200     

TO:         JonesLang LaSalle Americas, Inc.

Agent forSeventeenth Street Plaza Realty Holding Company

RE:

 

 

Dear Jones Lang LaSalle Americas, Inc.:

This letter is being delivered to you in accordancewith Paragraph 3 of the Office Lease dated                                                                                                                                  ,2006, between Evergreen Energy Inc. and Seventeenth Street Plaza Realty HoldingCompany, pertaining to the Premises referred to in the Lease.

The undersigned hereby acknowledges and agrees thatthe Lease Commencement Date (as defined in the Lease) for the Premises is                                     ,200       , and the Expiration Date (asdefined in the Lease for the Premises) is                                   ,200           .
| **LANDLORD:**                                    | ** ** | **TENANT:**                                   |
|--------------------------------------------------|------------|-----------------------------------------------|
| SEVENTEENTH STREET PLAZA  REALTY HOLDING COMPANY |       | EVERGREEN ENERGY INC., a Delaware corporation |
|                                             |       |                                          |   |   |
| By:                                              |       |                                          | By: |   |
| Print Name:                                      |       |                                          | Print Name: |   |
| Its:                                             |       |                                          | Its: |   |
|                                             |       |                                          |   |   |
|                                             |       |                                          | Attest: |   |
|                                             |       |                                          | Print Name: |   |
|                                             |       |                                          | Its: | Secretary |

 

 

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**EXHIBIT “B”**

**WORKLETTER**AGREEMENT

THIS WORKLETTER isdated November 17, 2006, by and between SEVENTEENTH STREET PLAZA REALTY HOLDINGCOMPANY (“Landlord”) and EVERGREEN ENERGY INC. (“Tenant”).

**R E C I T A L S:**

1.             ThisWorkletter is attached to and forms a part of that certain Office Lease datedNovember 17, 2006 (“Lease”), pursuant to which Landlord has leased to Tenantoffice space in that building known as Seventeenth Street Plaza, Denver,Colorado.

2.             Theparties have agreed to make certain improvements to the Premises, upon theterms and conditions contained in the Lease and this Workletter.

3.             TenantImprovements.  Landlord has grantedto Tenant an allowance of up to Thirty-Five and No/100 Dollars ($35.00) perrentable square foot of the Premises, for a total allowance of up to OneMillion One Hundred Forty-Five Thousand Four Hundred Forty-Five and No/100Dollars ($1,145,445.00) (the “Tenant Improvement Allowance”), for completion ofslab-to-slab Tenant Improvements in accordance with the Space Plan (hereinafterdefined).  Except as provided herein, theTenant Improvement Allowance is for Tenant Improvements in the Premises.  Landlord shall not charge to Tenant the costsof removal of any previous tenants’ wiring or cabling, nor shall the same betaken from the Tenant Improvement Allowance. Notwithstanding the foregoing, in the event that sufficient funds areavailable in the Tenant Improvement Allowance after completion of and paymentfor, the Tenant Work (hereinafter defined), Tenant may elect to utilize aportion of the Tenant Improvement Allowance, not to exceed $5.00 per rentablesquare foot of the Premises in the aggregate (for a total of up to $163,635.00)toward the costs associated with Tenant’s furniture, fixtures and equipment forthe Premises, cabling and/or wiring in the Premises, and/or relocation costs(collectively, the “Additional Tenant Costs”). Landlord shall reimburse Tenant for its Additional Tenant Costs, not toexceed the foregoing limits, within thirty (30) days after receipt of Tenant’sdocumented third-party invoices therefor. Tenant expressly acknowledges and agrees that Landlord shall have noobligation to fund any Additional Tenant Costs from the Tenant ImprovementAllowance unless and until all of the Tenant Work has been fully paid for fromthe Tenant Improvement Allowance and any Tenant Improvement Allowance stillremains.  In the event the TenantImprovement Allowance is not used on or before June 1, 2007, Landlord shallretain such unused portion of the Tenant Improvement Allowance, and Tenantshall have no further rights thereto or hereunder.  In the event that the cost of the TenantImprovements exceed the Tenant Improvement Allowance, Landlord shall provideTenant with an additional allowance above the Tenant Improvement Allowance, toapply towards payment of the excess costs of the Tenant Improvements (the “ExcessAllowance”), and Tenant shall deposit with Landlord funds sufficient to coverany additional projected excess costs and promptly pay to Landlord any costs inexcess thereof.  Any portion of theExcess Allowance paid by Landlord shall be paid for directly by theTenant.  Landlord shall have the workdepicted in the Tenant Space Plan (the “Tenant Work”) constructed with, unlessotherwise specified, Building standard materials and in a good and workmanlikemanner pursuant to the schedule provided for herein, subject, however, toextensions equal to the delays suffered by Landlord and caused by Tenant or bystrike, lockouts, fire or other casualty loss, acts of God, unavailability ofmaterials, hostile or war like action, riot or other causes beyond Landlord’sreasonable control.  The Tenant Work, asmodified from time to time pursuant to the provisions of this Workletter, shallbe known as the “Tenant Improvements”.  Subjectto the foregoing limitations, the cost of preparing the Space Plan, any otherarchitectural or engineering fees and the construction management fee to JonesLang LaSalle Americas, Inc. set forth below shall be paid for out of the TenantImprovement Allowance as part of the costs of the Tenant Improvements.

4.             TenantSpace Plan.  Landlord and Tenanthereby approve the general space layout and “test fit” (the “Space Plan” or “TenantSpace Plan”) prepared by Newman Cavendar & Doane and attached hereto as ExhibitB-1.

5.             TenantWorking Drawings.  Based upon theTenant Space Plan, Landlord will cause working drawings for the improvements tothe Premises (“Tenant Working Drawings”) to 

 

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be prepared and delivered to Tenant within a period as may be reasonablyneeded because of the complexity of Tenant’s improvements or the nature ofTenant’s non-building standard improvements, if any.  The Tenant Working Drawings will includeTenant’s partition layout, ceiling plan, electrical outlets and switches,telephone outlets, and detailed plans and specifications for the constructionof the improvements called for under this Workletter.  Tenant will furnish Landlord and its plannerswith all the information necessary to enable them to complete the TenantWorking Drawings as soon as possible, but in no event more than ten (10)business days after execution of this Lease. Tenant shall further respond to all requests by Landlord, or itsplanner, for clarification on said information provided within three (3)business days of said request.  The costof all working drawings for Tenant Improvements will be paid for out of theTenant Improvement Allowance as part of the costs of the TenantImprovements.  Tenant will deliver toLandlord written acceptance or rejection of any Tenant Working Drawings(initial or revised) within three (3) business days after Tenant receives anysuch item.  If Tenant fails to providethe information or clarification outlined above, rejects the Tenant WorkingDrawings (initial or revised), or fails to provide written acceptance orrejection within the period outlined above, Landlord shall not be obligated toproceed with any improvements of the Premises until such time as Tenantprovides such written acceptance, and any delays in construction as a resultthereof shall be deemed delays caused by Tenant.

6.             TenantCost Estimate.  Once the TenantWorking Drawings have been prepared and approved as provided above, Landlordshall seek three (3) competitive bids from general contractors from Landlord’sapproved bidding list.  Tenant may submitthe name of one contractor to be included in the bidding process.  Tenant shall be allowed to participate in theselection of the successful bidder; provided Landlord shall make the finalselection of the general contractor.  Inconnection with the foregoing, Landlord shall also cause a cost estimate forthe improvements to the Premises (“Tenant Cost Estimate”) to be prepared anddelivered to Tenant.  The Tenant willfurnish Landlord and its planners with all the information necessary to enablethem to complete the Tenant Cost Estimate. The cost of all cost estimates for Tenant Improvements will be paid aspart of the costs of the Tenant Improvements. Tenant will deliver to Landlord written acceptance or rejection of anyTenant Cost Estimate (initial or revised) within three (3) business days afterTenant receives any such item.  If Tenantrejects the Tenant Cost Estimate, or fails to provide written acceptance orrejection within said three (3) business day period, Landlord shall not beobligated to proceed with any improvements of the Premises until such time asTenant provides such written acceptance, and any delays in construction as aresult thereof shall be deemed delays caused by Tenant.  If at any time the costs of the TenantImprovements as reasonably projected by Landlord exceed the Tenant ImprovementAllowance, Tenant shall pay any such excess to Landlord in a manner reasonablyacceptable to Landlord, and, until such payment, Landlord shall not beobligated to proceed with any improvements of the Premises, and any delays inconstruction as a result thereof shall be deemed delays caused by Tenant.

7.             Uponwritten approval of the Tenant Working Drawings and the Tenant Cost Estimate byTenant, Landlord and Tenant shall be deemed to have given final approval to theWorking Drawings, and the costs thereof, and Landlord shall be authorized toproceed with construction.

8.             ChangeOrders.  Tenant may request changesin the work during construction only by written requests to Landlord’sRepresentative on a form approved by Landlord. All such changes will be subject to Landlord’s prior written approval,which shall not be unreasonably withheld or delayed.  Before commencing any change, Landlord orLandlord’s agent will prepare and deliver to Tenant, for Tenant’s writtenapproval, a change order setting forth the cost of such change, which willinclude associated architectural, engineering and construction contractor’sfees.  If Tenant fails to approve suchchange order within three (3) business days, Landlord will not proceed toperform the change.  If Tenant timelyapproves such change order, Tenant agrees to pay any amounts payable by Tenantin connection with the change order in the manner provided in Paragraph #6above, to the extent the Tenant Improvement Allowance is exceeded.  If a request for changes in the work delaysLandlord’s completion of the Tenant Improvements, then such delay shallconstitute a Tenant’s Delay.

9.             Completionand Commencement of Rent.  The termof the Lease shall commence as provided in Section #3 of the Lease.

10.           Failureto Perform.  Intentionally Omitted.

 

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11.           ConstructionAdministration.  Landlord shallcoordinate and administer all activities of contractor(s) in the performance ofTenant’s Improvements in accordance with the plans and specifications.  Tenant agrees that it will not contract withany contractor, laborer or material supplier to perform any improvements in thePremises without providing Landlord with notice ten (10) days prior to anyimprovements and requiring said contractor, laborer or material supplier toexecute an agreement acknowledging non-liability for payment by Landlord inaccordance with C.R.S. § 38-22-105.5, as amended from time to time.  After the completion of the TenantImprovements, and within 10 days following the date of invoice, Tenant shall,for supervision and administration of the construction and installation of theTenant Improvements, pay to Jones Lang LaSalle Americas, Inc. a constructionmanagement fee equal to 1%******of the total cost of the Tenant Improvements, which may be paidfrom the unused portion of the Tenant Improvement Allowance (if any).  Tenant’s failure to pay such constructionmanagement fee when due shall constitute an event of default under the Lease.

12.           Miscellaneous.

## (a)           Exceptto the extent otherwise indicated herein, the initially capitalized terms usedin this Workletter Agreement shall have the meaning assigned to them in theLease.

## (b)           Theterms and provisions of this Tenant Workletter are intended to supplement andare intended as an Amendment to the Lease and are specifically subject to allthe terms and provisions of the Lease. In the event of conflict between the terms of this Tenant Workletter andthe Lease, then the provisions of the Workletter shall govern.

## (c)           Priorto the date the Premises are ready for occupancy Landlord’s contractor andTenant shall inspect the Premises and jointly complete a “punch list” ofincomplete or defective work (the “Punch List Items”), and thereafter Landlordshall exercise due diligence to cause such Punch List Items to be completedwithin thirty (30) days following the date the Premises are ready for occupancy(except for any punch list items which, despite due diligence, cannot becompleted within said thirty (30) day period).

## (d)           ThisTenant Workletter may not be amended or modified other than by supplementalwritten agreement executed by authorized representatives of the parties hereto.

## (e)           Landlordshall have the right to issue reasonable construction rules, regulations andpolicies.  If Tenant contests any ofthese rules, regulations, or policies, Landlord agrees to take reasonable stepsto modify such rules, regulation, and policies at Tenant’s request, except thatTenant shall pay directly any related expenses of construction or ofconsultants due to said changes to the extent said change exceeds the TenantImprovement Allowance.

## (f)            Nowaiver of any default of the Tenant hereunder shall be implied from anyomission by the Landlord to take any action on account of such default if suchdefault persists or be repeated, and no express waiver shall affect any defaultother than the default specified in the express waiver, and that only for thetime and to the extent therein stated.

## (g)           Exceptas modified herein, the provisions of the Lease shall continue in full forceand effect.

## (h)           Landlordneither warrants nor guarantees the accuracy of any estimated Costs or TenantCost Estimates.

## (i)            Timeis of the essence in this Workletter Agreement, and the failure by Tenant totimely respond or perform shall be deemed to be a Tenant’s Delay, and inaddition, subject to any applicable notice and cure periods, Landlord may deemsuch Tenant’s Delay an Event of Default under the Lease.  Tenant undertakes and agrees to, upon writtenrequest, meet or provide written response, as the case may be, within onebusiness day of such written request, except as otherwise provided in thisWorkletter Agreement.  Any delay causedby Tenant’s failure to do so shall be deemed to be a delay caused by Tenant.

 

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| **LANDLORD:**                                           | ** **       | **TENANT:**                                   |
|---------------------------------------------------------|------------------|-----------------------------------------------|
|  SEVENTEENTH  STREET PLAZA  REALTY HOLDING COMPANY |             | EVERGREEN ENERGY INC., a Delaware corporation |
|                                                    |             |                                          |   |   |
| By:                                                     | /s/ Dennis Keyes |                                          | By: | /s/ Kevin R. Collins |
| Print Name:                                             | Dennis Keyes     |                                          | Print Name: | Kevin R. Collins |
| Its:                                                    | Vice President   |                                          | Its: | EVP & COO |
|                                                    |             |                                          |   |   |
|                                                    |             |                                          | Attest: | /s/ William G. Laughlin |
|                                                    |             |                                          | Print Name: | William G. Laughlin |
|                                                    |             |                                          | Its: | Secretary |

 

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EXHIBIT B-1

TENANT SPACE PLAN

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**EXHIBIT “C”**

 

**CLEANING SCHEDULE**

 

Landlord shallfurnish janitorial service to the Premises and the Building Complex asdescribed below:

 

**DAILY SUNDAY THRO****U**GH THURSDAY,INCLUSIVE

 

1.             Sweep, dry mop or vacuum all floors complete.  Remove gum, tar, etc., adhering to the floor.

2.             Empty and damp wipe all ashtrays.

3.             Dust all horizontal surfaces that can be reached withouta ladder with a treated cloth, mitt or duster.

4.             Clean, polish and sanitize all drinking fountains.

5.             Sweep all steps, sidewalks and plazas.

6.             Clean passenger elevator cab and landing doors,including floors.

7.             Empty all waste containers.

8.             Clean all public and private (within Premises) wash andrestrooms.

(a)           All cleaning will be performed withapproved germicidal detergents at disinfectant strengths.

(b)           All toilets and urinals will becleaned on all surfaces nightly; acid bowl cleaner to be used in the interior.

(c)           All wash basins, shelves, dispensersand all other washroom fixtures will be cleaned nightly.

(d)           All mirrors will be cleaned andpolished nightly.

(e)           All chrome and other bright work,including exposed plumbing, toilet seat hinges, etc., will be cleaned andpolished nightly.

(f)            All waste receptacles are to beemptied and cleaned nightly.

(g)           All lavatory floors will be swept andmopped with a germicidal detergent solution nightly.

(h)           All lavatory floors will be machinescrubbed once every three months.

(i)            Washroom supplies will bereplenished nightly and at all other times as needed.

(j)            Once each month, remove hard waterstains from toilet fixtures by using bowl cleaner after normal cleaning.  Follow manufacturer’s recommendations.

 

9.             All normal rubbish and office waste paper shall beremoved from the tenant floors.

 

**WEEKLY**

 

1.             Dust and wipe clean with dust cloth all desk tops.

2.             Spot clean all doors, switch plates, wall and glassareas.

3.             Dust and wipe all tops of all file cabinets andcounters.

4.             Sweep building stairwells.

5.             Damp mop floors and/or spray buff for heavy scuffs, ifnecessary.

6.             Clean glass in building directory.

7.             Wipe all waste containers.

8.             Wash all glass entrance doors andside panels inside and out.

**MONTHLY**

 

1.             When possible, sweep and hose down outside Plaza space,exterior walks, trucking areas and shipping platforms.

2.             Shampoo all elevator carpeting.

3.             Dust all windowsills.

 

**EVERY THREE MONTHS**

 

1.             When possible, wash all windows, both interior andexterior, but not less than three times per year.

2.             Dust vertical surfaces of all furniture.

3.             Scrub all resilient floor areas so as to maintain ahighly polished surface.

 

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**SNOW AND ICE REMOVAL**

 

1.             Landlord shall be responsible for snow and ice removalfrom the parking lots, sidewalks and private roadways servicing the Property.

 

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**RIDER TO LEASE**

1.             Annual Base Rental.  Commencing on the Commencement Date, andcontinuing through the Term, Tenant shall pay Annual Base Rental for thePremises as follows:

 
| **Months**            | ** ** | **Annual Base  Rental/  Square Foot of  Rentable Area** | ** ** | **Monthly Base  Rental** | ** ** | **Annual Base  Rental** |
|-----------------------|------------|---------------------------------------------------------|------------|--------------------------|------------|-------------------------|
| Months 1 — 12    |       | $16.70                                                  |       | $45,545.08               |       | $546,540.96             |
| Months 13 — 24   |       | $17.20                                                  |       | $46,908.70               |       | $562,904.40             |
| Months 25 — 36   |       | $17.70                                                  |       | $48,272.33               |       | $579,267.96             |
| Months 37 — 48   |       | $18.20                                                  |       | $49,635.95               |       | $595,631.40             |
| Months 49 — 60   |       | $18.70                                                  |       | $50,999.58               |       | $611,994.96             |
| Months 61 — 72   |       | $19.20                                                  |       | $52,363.20               |       | $628,358.40             |
| Months 73 — 84   |       | $19.70                                                  |       | $53,726.83               |       | $644,721.96             |
| Months 85 — 96   |       | $20.20                                                  |       | $55,090.45               |       | $661,085.40             |
| Months 97 — 108  |       | $20.70                                                  |       | $56,454.08               |       | $677,448.96             |
| Months 109 — 123 |       | $21.20                                                  |       | $57,817.70               |       | $693,812.40             |

 

Notwithstandingthe foregoing, and on the express condition that Tenant abides by all of theterms and conditions of this Lease and no Event of Default occurs hereunder,Tenant shall be entitled to an abatement of Annual Base Rental, commencing onthe Commencement Date (hereinafter defined) and ending three (3) monthsthereafter (the “Abated Rent”), such that the effective Annual Base Rental ratefor the first three (3) months shall be $Zero. Notwithstanding such concession of Base Rental, Landlord and Tenantagree that Tenant’s obligation to pay the Annual Base Rental as provided in theLease shall continue throughout the Term of the Lease, and in the event thatTenant fails to abide by any term or condition of the Lease or otherwisedefaults hereunder, then all Annual Base Rental not collected by Landlordduring the Term due to the foregoing Base Rental abatement shall, as of thedate of Tenant’s default, become immediately due and payable with interest onsuch sums at the lesser of 12% per annum or the maximum rate permitted by lawfrom the date such Base Rental was originally due to the date of payment.  Such obligation of Tenant for payment ofAnnual Base Rental not collected during the Term shall be independent of and inaddition to Landlord’s other rights and remedies available to it pursuant tothe Lease or otherwise available at law or in equity.

2.             Special Provisions RegardingEarly Occupancy.  Notwithstandinganything to the contrary contained in the Lease, Landlord agrees that Tenantmay enter the Premises no more than thirty (30) days prior to the CommencementDate for the sole purpose of installation of furniture, fixtures and voice anddata cabling (the “Early Occupancy”) provided that such Early Occupancy isconducted in a manner as to not unreasonably interfere with the construction ofany Tenant Work occurring in or around the Premises pursuant to Exhibit “B”of the Lease, and further provided that such Early Occupancy shall be subjectto all of the terms and conditions contained in the Lease (other than thepayment of Annual Base Rental and Additional Rent), including, withoutlimitation, Tenant’s insurance and indemnity obligations as contained in theLease.  Prior to any such EarlyOccupancy, Tenant shall provide Landlord with certificates of insurance orother evidence acceptable to Landlord evidencing Tenant’s compliance with itsinsurance obligations.  In the event thatTenant’s Early Occupancy materially interferes with the construction of theTenant Work or otherwise disrupts Landlord’s operations or the operations ofother tenants in the Building, Landlord may terminate Tenant’s right to EarlyOccupancy, and any delay in the Tenant Work attributable to such EarlyOccupancy will be deemed a Tenant’s Delay as provided in the Lease.

3.             Building Directory Signage.  Landlord agrees that Tenant shall have theright to have its company name listed on the building directory located in themain lobby of the Building (the “Directory Signage”), along with other tenants,with the size, color, and other aesthetics of both the Directory Signage andTenant’s designation thereon to be determined by Landlord in its sole andabsolute discretion.  In addition, solong as Landlord’s Directory Signage is in the form of an electronic directory,Tenant shall also have the right to have its officers and executive personnellisted by name in the electronic directory constituting the Directory Signage

 

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4.             Elevator Lobby DirectionalSignage.  Landlord will providebuilding standard lobby directional signage in the elevator lobby area of the14th floor (the “Directional Signage”), with theexact location, size, color and other aesthetics of the Directional Signage tobe determined by Landlord in its sole and absolute discretion.  Because Tenant will be occupying the entireleasable area of the 13th floor, Landlord will have no obligation toprovide Directional Signage on the 13th floor. Any Directional Signage which Tenant desires to install on the 13th floor shall be subject to Landlord’s priorwritten approval, not to be unreasonably withheld, and shall be installed andmaintained at Tenant’s sole cost and expense.

5.             Option to Renew.

(a)           Renewal Period.  Tenant may, at its option, extend the Termfor the entire, but not less than the entire, Premises, for one (1) renewalperiod of five (5) years (the “Renewal Period”) by written notice to Landlord(the “Renewal Notice”) given no earlier than twelve (12) nor later than nine(9) months prior to the expiration of the Term, provided that at the time ofsuch notice and at the commencement of such Renewal Period: (i) Tenant remainsin occupancy of the entire Premises; (ii) Tenant remains in good financialstanding, as reasonably determined by Landlord (and in connection therewith,Tenant shall provide Landlord with any reasonably required documentationregarding Tenant’s financial standing); and (iii) no uncured event of defaultexists under the Lease (and no condition exists, but for the passage of time orgiving of notice, would constitute an event of default) (such foregoingconditions are referred to herein as the “Preferential Right Conditions”).  Such Renewal Period shall commence upon theexpiration date of the Term.  The AnnualBase Rental payable during the Renewal Period shall be at the Market Rate(hereinafter defined) for the Premises. Except as provided in this Paragraph as pertains to modification ofAnnual Base Rental, all terms and conditions of the Lease shall continue toapply during the Renewal Period.  Exceptin connection with a Permitted Transfer, Tenant’s option to renew shallautomatically terminate upon assignment of the Lease or subletting of all orany portion of the Premises.

(b)           Acceptance.  Within 30 days of the Renewal Notice,Landlord shall notify Tenant of the Annual Base Rental for such Renewal Period(the “Base Rental Notice”).  Tenant shallhave thirty (30) days from the date of the Base Rental Notice in which todispute, in writing, Landlord’s finding of Market Rate (the “Market RateDispute Notice”) or to accept, in writing, the terms of the Renewal Notice (the“Renewal Acceptance Notice”).  If Tenanttimely delivers its Renewal Acceptance Notice, Tenant shall, within 15 daysafter receipt, execute a lease amendment confirming the Annual Base Rental andtenant finish allowance (if any) applicable during the Renewal Period in formand substance reasonably acceptable to Tenant. If Tenant timely delivers its Market Rate Dispute Notice, the partiesshall proceed in accordance with subsection (d).  If Tenant fails timely to deliver its RenewalAcceptance Notice; or to deliver a Market Rate Dispute Notice, then this optionto renew shall automatically expire and be of no further force or effect.

(c)           Market Rate.  The “Market Rate” is the rate (or rates) awilling tenant would pay and a willing landlord would accept for anon-renewing/non-extending tenant in a comparable transaction, in comparablespace and in a comparable Class AA building located in the downtown Denver,Colorado central business district as of the commencement date of the applicableterm.  In calculating the Market Rate,all relevant “market” terms and conditions will be taken into account,including the location and quality of the Building, floor level, finishallowance, common area factors, rental abatements, rental adjustments, parkingcharges, lease assumptions, moving allowances, space planning allowances, leaseterm, credit standing of Tenant, or any other concession or inducement providedin the marketplace that would be relevant in making a fair market valuedetermination.

(d)           Market Rate Dispute Procedures.  If, within ten (10) business days of Landlord’sreceipt of the Market Rate Dispute Notice the parties have not agreed uponMarket Rate, it shall be established by arbitration under the rules of theAmerican Arbitration Association (the “AAA”) then in effect, or by such othermethod, if any, as the parties may then agree upon.  The parties hereto agree to prevail upon theAAA, or such other party as may then be agreed upon, to select qualified,dis-interested, real estate brokers to comprise the arbitration panel, andagree further that the Market Rate established by the arbitration panel shallbe binding.  In the event the results ofthe arbitration are not known by the Expiration Date, Tenant shall pay a rentalequal to the Annual Base Rental and any Additional Rent pursuant to Article 5payable in the month 

 

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immediatelypreceding the Expiration Date (the “Interim Rent”) until such time as theMarket Rate has been established by the arbitration panel.  The Market Rate shall be used to calculatethe Rent which would have been payable by Tenant commencing from the ExpirationDate and ending on the date Market Rate is established by arbitration, hadMarket Rate been charged.  In the eventthat Tenant pays any Interim Rent as provided herein, Tenant shall pay thedifference, in lump sum, on the first day of the month following thedetermination of Market Rate or, in the event Market Rent is less than theInterim Rent, Landlord shall issue a credit for the difference against Rentotherwise payable on the first day of the month following determination ofMarket Rate.

5.             Right of First Refusal.  During the first five years of the Term (the “ROFRPeriod”), and provided that all Preferential Right Conditions remain satisfied,Tenant shall have a continuing right of first refusal as hereinafter described(the “Right of First Refusal”) to lease any remaining leasable space on the 14th floor of the Building (the “Right of FirstRefusal Space”) at such time as Landlord engages in negotiations with aprospective tenant for any portion of the Right of First Refusal Space,exercisable at the following times and upon the following conditions:

(a)           If Landlord enters into negotiationswith a prospective tenant to lease all or any part of the Right of FirstRefusal Space, and Landlord obtains a bona fide offer from a prospective tenantwhich is acceptable to Landlord in its sole and absolute discretion, Landlordshall notify Tenant of such fact and shall include in such notice the rent,term, and other terms (including tenant improvements and any other Landlordconcessions) at which Landlord is prepared to offer such Right of First RefusalSpace (such portion then being offered being referred to herein as the “OfferedSpace” and the terms set out in such offer being referred to herein as the “OfferTerms”) to such prospective tenant (“Landlord’s Right of First Refusal Notice”).  Tenant shall have a period of five (5)business days from the date of delivery of Landlord’s Right of First RefusalNotice to notify Landlord whether Tenant elects to exercise the right grantedhereby to lease the entire Offered Space under the Offer Terms.  Tenant may not lease less than the entireOffered Space, and to exercise its Right of First Refusal, must accept the OfferedSpace on the exact Offer Terms (even if such terms are for a term longer orshorter than the current Term of the Lease), unless otherwise mutually agreedupon by the parties.  If Tenant fails togive any notice to Landlord within the required five (5) business day period,Tenant shall be deemed to have waived its right to lease the Offered Space.

(b)           If Tenant so waives its right tolease the Offered Space (either by giving written notice thereof or by failingto give any notice), Landlord shall have the right to lease the Offered Spaceto the prospective tenant upon the Offer Terms, and upon the execution of  such lease between Landlord and theprospective tenant this Right of First Refusal shall thereafter be null, voidand of no further force or effect as pertains to the Offered Space.  However, if Landlord does not enter into alease with such prospective tenant covering the Offered Space, or if the OfferTerms are materially modified, Landlord shall not thereafter engage in otherlease negotiations with respect to the Offered Space first complying with theprovisions of this Paragraph.  Moreover,even if Tenant waives its right to lease any particular Offered Space, Tenantshall still have a Right of First Refusal with respect to any portion of theRight of First Refusal Space that has not previously been offered to Tenantpursuant to this Paragraph.

(c)           If Tenant exercises its Right ofFirst Refusal as provided in this Paragraph, Landlord and Tenant shall, withinfifteen (15) days after Tenant delivers to Landlord notice of its election,enter into a lease amendment covering the Offered Space upon the Offer Terms.

(d)           Any assignment or subletting byTenant pursuant to the provisions of the Lease, other than in connection with aPermitted Transfer, shall terminate the Right of First Refusal of Tenantcontained herein.  In addition, the Rightof First Refusal granted herein shall automatically terminate at the end of theROFR Period.

(e)           The Right of First Refusal of Tenantcontained herein shall be subject and subordinate to any rights of refusal,offer, renewal, expansion or extension or any other similar preferential rightsexisting under any other tenant leases for the Building as of the date of thisLease.

 

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6.             Expansion Option.  Tenant shall have the option to lease up toall of the Right of First Refusal Space (the “Expansion Option”) for a termcommencing on the Expansion Space Commencement Date (hereinafter defined) andcontinuing through the expiration or earlier termination of the Term (as it maybe extended or renewed), by giving written notice to Landlord (the “ExpansionNotice”) at any time after the date of this Lease but no later than six (6)months after the Commencement Date (the “Expansion Space Notice Deadline”),subject to the terms and conditions of this Paragraph.  If Tenant timely exercises its ExpansionOption, it shall include in its Expansion Notice an identification of theportion of the Right of First Refusal Space which it desires to take (the “ActualExpansion Space”) and if the Actual Expansion Space is less than the entireRight of First Refusal Space, the remainder of the Right of First Refusal Space(the “Remaining ROFR Space”) shall be an area that is in a commerciallyleasable configuration, as determined by Landlord in its sole discretion.  If Landlord determines that the RemainingROFR Space is not in a commercially leasable configuration, Landlord shallnotify Tenant as soon as reasonably practicable after receipt of Tenant’sExpansion Notice, and the parties shall work in good faith to attempt todetermine a mutually agreeable configuration for the Actual Expansion Space andthe Remaining ROFR.  If the parties areunable to reach agreement within fifteen (15) days thereafter, regardless ofthe reason therefor, then this Expansion Option shall be deemed terminated andshall be considered null, void and of no further effect.  If Landlord is satisfied with theconfiguration of the Actual Expansion Space and the Remaining ROFR Space, itshall notify Tenant thereof, and the Actual Expansion Space will be deemed the “Rightof First Refusal Space” hereunder.

(a)           Conditions to Exercise of Option.  In order to exercise its Expansion Option,all Preferential Right Conditions must remain satisfied at the time that Tenantgives its Expansion Notice and upon the Expansion Space Commencement Date.  Any assignment or subletting by Tenantpursuant to the provisions of this Lease shall terminate the Expansion Optionof Tenant contained herein.  In addition,and notwithstanding anything to the contrary contained herein, the ExpansionOption granted to Tenant herein shall expire by its own terms as of theExpansion Space Notice Deadline unless Tenant shall have timely given itsExpansion Notice by such date, time being of the essence with respect to Tenant’sexercise of its Expansion Option hereunder. Finally, this Expansion Option shall terminate with respect to anyportion of the Right of First Refusal Space which is identified as OfferedSpace in any Landlord’s Right of First Refusal Notice, if such Offered Space isidentified prior to the time that Tenant delivers an Expansion Notice toLandlord with respect to such Offered Space, it being expressly understood andagreed to the parties that in terms of priority, Tenant’s Expansion Option issubject and subordinate to the Right of First Refusal contained herein.

(b)           Delivery of Expansion Space; Terms.  If all of the conditions to Tenant’s exerciseof its Expansion Option as provided herein are satisfied, the following termsshall apply:  (A)  Annual Base Rental shall be the same BaseRental per square foot of Rentable Area Leased of the Right of First RefusalSpace as Tenant is paying in Annual Base Rental for the Premises hereunder(including any subsequent escalations in such Annual Base Rental); (B) Landlordwill provide Tenant with a construction allowance per square foot of RentableArea Leased in the same amount per square foot of Rentable Area Leased thatLandlord has made available to Tenant pursuant to Exhibit “B” attached to thisLease (the “Expansion Space Improvement Allowance”), which Expansion SpaceImprovement Allowance shall be reduced pro rata on a monthly basis, based onthe number of months remaining in the Term as of the commencement date ofTenant’s occupancy of the Right of First Refusal Space Space; (C) the amount ofthe Letter of Credit (hereinafter defined) shall be proportionately increasedbased on the Transaction Costs (hereinafter defined) associated with theleasing of the Right of First Refusal Space; and (D) Landlord will constructleasehold improvements in the Right of First Refusal Space pursuant to the sameterms and conditions as pertain to the construction of the Tenant Work in theWork Letter attached to this Lease, with the following modifications:  (i) the term “Tenant Improvement Allowance”will be deemed replaced with the “Expansion Space Improvement Allowance” andthe outside date for use of the Expansion Space Improvement Allowance will besix (6) months from the date of Tenant’s Expansion Notice; (ii) Tenant willsubmit a Space Plan for Landlord’s approval no later than seven (7) days afterthe date of Tenant’s Expansion Notice (and any delay by Tenant in submittingsuch Space Plan shall constitute a Tenant’s Delay); and (iii) all time framesin the Work Letter that run from the mutual execution of the Lease shall bedeemed to run from the date of Tenant’s Expansion Notice.  The “Expansion Space Commencement Date”(herein so called) shall occur ninety (90) days after the date of Tenant’sExpansion Notice, which date shall be extended if the Tenant Work is notcomplete by such date, 

 

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unless the failureto complete the Tenant Work by such date is due to Tenant’s Delay.  Subject to the foregoing, Landlord willdeliver the Right of First Refusal Space to Tenant in its then current “as is”condition as of the Expansion Space Commencement Date.  Tenant shall, within fifteen (15) businessdays after Landlord’s written request, execute and return a lease amendmentadding the Right of First Refusal Space as part of the Premises for allpurposes under the Lease (including any extensions or renewals) effective as ofthe Expansion Space Commencement Date and confirming the Annual Base Rental andother terms applicable to the Right of First Refusal Space.  If Tenant fails timely to execute and returnthe required lease amendment, then this Expansion Option shall automaticallyexpire and be of no further force or effect.

7.             Termination Option.  Tenant shall have the one-time option toterminate the Lease (the “Option to Terminate”), with such termination to beeffective as of end of the sixty-third (63rd) full calendar month following theCommencement Date (the “Termination Date”) (e.g., if the Commencement Date isJanuary 1, 2007, the Termination Date will be March 31, 2012), provided Tenantgives Landlord not less than twelve (12) months’ prior written notice toterminate (the “Termination Notice”), and further provided Tenant is not indefault under the Lease at the time of the giving of such notice nor on theTermination Date and that at the time that Tenant gives its Termination NoticeTenant pays to Landlord the Termination Fee (hereinafter defined) as providedherein.  The “Termination Fee” shallconsist of: (a) all unamortized improvement allowances, leasing commissions andother reasonable incidental transaction costs (including professional fees)incurred by Landlord in connection with the negotiation of the Lease and anysubsequent amendments thereto (collectively, the “Transaction Costs”),amortized at the rate of ten percent (10%); plus (b) all Abated Rent.  Upon Tenant’s written request, Landlord willprovide Tenant with documentation outlining the actual amount of theTransaction Costs.  As of the TerminationDate: (x) the Termination Fee (which shall be paid at the time of theTermination Notice), plus all Annual Base Rental, Additional Rent and othersums payable by Tenant under the Lease shall be paid through and apportioned asof the Termination Date; (y) neither party shall have any rights, liabilities orobligations under the Lease for the period accruing after the Termination Date,except those which, by the provisions of the Lease, expressly survive thetermination of the Lease, and which will expressly include a reconciliation ofany Additional Rent that may be due or owing under the Lease; and (z) Tenantshall surrender the Premises in the condition required under the Lease.  Except in connection with a PermittedTransfer, Tenant’s option to terminate as provided in this paragraph shallautomatically terminate upon assignment of the Lease or subletting of all orany portion of the Premises.

8.             Letter of Credit.  In addition to the cash security depositrequired pursuant to the terms of Section 32 of the Lease, as additionalsecurity, Tenant shall deliver to Landlord concurrently with the execution ofthe Lease by Tenant, an irrevocable, unconditional letter of credit in theamount equal to $1,500,000.00 (which the parties agree is a reasonable estimateof the Transaction Costs (the “Letter of Credit”).  The Letter of Credit shall be addressed toLandlord (and/or any other beneficiary designated by Landlord), issued in aform and substance approved by Landlord in Landlord’s sole discretion and by afinancial institution approved by Landlord in Landlord’s sole discretion, andshall be transferable one or more times by Landlord without the consent ofTenant.  In the event that the term ofthe Letter of Credit obtained by Tenant is less than the Term of the Lease,Tenant shall provide to Landlord, sixty (60) days prior to the expiration ofthe term of the Letter of Credit, a substitute Letter of Credit, in form,scope, and substance satisfactory to Landlord, all in its sole discretion, forthe duration of the Term of the Lease plus 30 days.  Tenant agrees to pay upon Landlord’s request,any and all costs or fees charged in connection with the Letter of Credit thatarise due to: (i) Landlord’s sale or transfer of all or any portion of theBuilding; or (ii) the addition, deletion, or modification of any beneficiaryunder the Letter of Credit.  The bankissuing the Letter of Credit shall have banking offices in the city in whichthe Building is located, at which offices the Letter of Credit may be drawn.  Tenant agrees that upon any default by Tenantunder the terms and provisions of this Lease, including the failure of Tenantto timely deliver any replacement Letter of Credit, Landlord shall have theright to receive payment under any Letter of Credit of the entire amount ofsuch Letter of Credit at such time, and any such amounts received by Landlordshall be held by Landlord and applied to any default hereunder in such manneras Landlord deems appropriate.  Subjectonly to the provisions set forth in the following sentences, Landlord shall atall times during the Term, hold a letter of credit in the amounts describedabove.  Notwithstanding the foregoing,and provided that between the date of this Lease and the applicable ReductionDate (hereinafter defined): (a) there has been no default on the part of Tenantunder the terms of the Lease; and (b) there has 

 

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been no assignmentof the Lease, subletting of the Premises or any portion thereof, or any otheraction on the part of the Tenant which would constitute a transfer as providedin Section 17 of the Lease (the items referred to in (b) being referred tocollectively as a “Transfer” and the conditions set forth in (a) and (b) beingreferred to as the “Conditions”), on the first anniversary date of theCommencement Date and each anniversary date thereafter (each, a “Reduction Date”),the Letter of Credit shall be reduced by an amount equal to one-tenth (1/10th) of the amount of theoriginal Letter of Credit.  In connectiontherewith, provided that as of each applicable Reduction Date the Conditionsshall have remained satisfied, Tenant shall be entitled to replace the thencurrent Letter of Credit with a replacement Letter of Credit which shall meetall of the requirements set forth above, except as to amount, and the amount ofthe replacement Letter of Credit shall be reduced accordingly.  If at any time during the Term a Transferoccurs, Tenant shall no longer be entitled to any further reductions in theamount of the then-existing Letter of Credit, and in addition, as a conditionto entering into the Transfer, and without otherwise modifying Landlord’srights with respect to any such Transfer as more fully set forth in Section 17of this Lease, Tenant shall be required to replace the then-existing Letter ofCredit with a Letter of Credit in the original amount equal to the TransactionCosts.

9.             Brokers.  Neither Landlord nor Tenant has dealt withany broker or agent in connection with the negotiation or execution of thisLease, other than Red Hawk Properties, Inc, which has acted as Tenant’s broker,and Jones Lang LaSalle Americas, Inc., which has acted as Landlord’s broker,and whose commissions shall be paid by Landlord pursuant to a separate writtenagreement.  Tenant and Landlord shalleach indemnify the other against all costs, expenses, attorneys’ fees, and otherliability for any commissions or other compensation claimed by any other brokeror agent claiming the same by, through, or under the indemnifying party.

10.           Storage Space.  Tenant shall have the right to request fromLandlord on-site storage space in the core area of the Building’s parkinggarage or in such areas as otherwise designated by Landlord.  Landlord’s obligation to provide Tenant withany such storage space shall be subject to availability of space (as reasonablydetermined by Landlord) and also subject to Tenant entering into Landlord’sthen current form of storage space license or rental agreement for any suchspace.  Landlord hereby agree tonegotiate in good faith the non-economic terms and conditions of such storagespace license or rental agreement. Without limiting the generality of theforegoing, any such storage space rental or license agreement shall providethat Tenant shall pay Landlord’s then current fee for the use of any such space(which fee is currently $12.00 per square foot of any storage space so used andis subject to change without notice).

11.           Satellite Dish.  Tenant shall have the right to request fromLandlord a license for the placement of a satellite dish on the roof of theBuilding.  Landlord’s obligation toprovide Tenant with any such license shall be subject to availability of space(as reasonably determined by Landlord) and also subject to Tenant entering intoLandlord’s then current form of license agreement for any such space.  Without limiting the generality of theforegoing, any such license agreement shall provide that Tenant shall payLandlord’s then current fee for the use of any such space (which fee iscurrently $500.00 per month for “receive only” antenna roof access rights andis subject to change without notice), and shall also be subject to Landlord’sprior approval of the type, size, quantity and other aspects of the equipmentwhich Tenant desires to place in such space.

12.           Monument Signage.  Subject to Landlord’s Monument SignageRe-Capture Right (hereinafter defined), during the initial Term Tenant shallhave the non-exclusive right to place its name on the existing monument sign infront of the Building and located at the corner of 17th Street and Larimer Street (the “Signage”).  The Signage shall be installed and maintainedat Tenant’s sole cost and expense throughout the Term.  In addition to payment of the foregoingcosts, Tenant shall pay to Landlord the amount of $2,500.00 per year (the “SignageFee”) for its use of the monument and the Signage thereon, payable annually inadvance, with the first such Signage Fee payment due on the Commencement Date(pro-rated for such partial year) and all subsequent Signage Fee payments dueon or before January 1st of each subsequent calendar year in theTerm.  In the event that Landlordexercises its Monument Signage Re-Capture Right, the Signage Fee for thecalendar year in which such termination occurs shall be pro-rated and if suchtermination is other than at the end of a calendar year, Tenant shall be entitledto a credit against rent for any overpayment of the Signage Fee as so prorated(or if no further rent is due, Landlord shall refund any such overpayment toTenant).  The location, size, material,design and other aesthetics of the Signage shall be subject to the priorwritten approval of Landlord, and Tenant 

 

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shall beresponsible for compliance with all applicable laws, including withoutlimitation, obtaining all appropriate permits from applicable governmentalauthorities having jurisdiction.  Uponthe expiration or earlier termination of the Lease, or if Landlord exercisesits Monument Signage Re-Capture Right, Tenant shall remove the Signage, atTenant’s sole cost and expense, and restore the monument sign to its conditionimmediately prior to the installation of the Signage, which obligations shallsurvive the expiration date of the Lease. However, if the Signage is not removed as required within five (5) daysafter Landlord’s notice, then the Signage shall conclusively be deemed to havebeen abandoned by Tenant and may be appropriated, sold, stored, destroyed, orotherwise disposed of by Landlord without further notice to Tenant or any otherperson and without obligation to account therefor.  Tenant shall pay Landlord all expensesincurred in connection with the disposition of the Signage, which obligationsshall survive the expiration date of the Lease. Landlord reserves the right, in its sole discretion and at its expense,to change any existing signage or modify its signage guidelines for the Propertyat any time and from time to time.  TheSignage rights granted to Tenant herein are personal to Tenant, and shall notbe transferable in the event of any assignment, subletting or other transfer ofTenant’s interest in the Lease (as amended hereby).  If Tenant installs such Signage but Landlordthereafter determines that it desires to re-capture such space on the monument,regardless of the reason therefor, Landlord shall have the right to re-capturesuch space (the “Landlord’s Monument Signage Re-Capture Right”) by givingTenant at least ninety (90) days’ prior written notice to remove the Signage(such date as designated by Landlord being referred to herein as the “MonumentSignage Surrender Date”).  In such event,on or before the Monument Signage Surrender Date, Tenant shall remove theSignage and repair all damage caused by such removal, all at Tenant’s cost andotherwise in accordance with the terms of this Lease.  If Tenant fails to remove the Signage asrequired, Landlord shall have all rights as provided in subparagraph above withrespect to the removal of the Signage.

13.           Provisions Regarding Stairwells.

(a)           Access to Stairwells.  Tenant has indicated a desire to have accessto the stairwells connecting the 13th and 14th floors of theBuilding (each, a “Stairwell” and collectively, the “Stairwells”) for thepurposes of allowing Tenant and its employees to travel between the Premiseslocated on each of such floors.  Landlordand Tenant agree that, so long as Tenant’s access to the Stairwells as providedherein is permitted by applicable laws, and Tenant otherwise complies with theprovisions of this paragraph, Tenant shall be permitted limited access to theStairwells as provided herein.

(b)           Construction of Access-Card orother Similar System.  Prior to beingpermitted to access the Stairwells as provided herein, Tenant shall haveconstructed and installed, at its sole cost and expense, an access-card orother security system allowing limited access by Tenant and its employees toand from the 13th and 14th floors of theBuilding from the Stairwells and cosmetic work related thereto (the “StairwellWork”).  In no event shall the StairwellWork prohibit or otherwise limit the access to the Stairwells by Landlord orany other third parties as may be required to comply with any applicable firecodes or other applicable laws.  TheStairwell Work shall be conducted, if at all, subject to Tenant entering intoLandlord’s standard form of work letter and at Tenant’s sole cost and expense,and otherwise in accordance with the terms and conditions of the Lease.

(c)           Waiver; Indemnity; Insurance.  Tenant assumes all risk and waives all claimsit may have against Landlord, its managing agent, and their respectivepartners, directors, officers, agents, employees, affiliates andsuccessors-in-interest (collectively and together with Landlord, the “LandlordParties”) for damage to or loss of property (including theft) or injury topersons within the Stairwells, except for such damage, loss or injury caused bythe gross negligence or willful misconduct of Landlord or Landlord’s managingagent.  Such assumption and waiver shallinclude an obligation on Tenant’s part to indemnify, defend and hold harmlessthe Landlord Parties from and against all costs, expenses, claims andliabilities arising from such damage, loss or injury, including attorneys’ feesand costs, which obligation shall survive the expiration or earlier terminationof the Lease.  Tenant agrees to cause itsinsurance policies to insure against any property damage or bodily or personalinjury occurring in or around the Stairwells to the same extent as if suchdamage or injury arose from an act or omission occurring in or upon thePremises.  The waivers and indemnitiescontained herein are in addition to, and not in lieu of, any waivers andindemnities contained elsewhere in the Lease.

 

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(d)           Limitation or Suspension of Access.  Landlord shall have the right to temporarilylimit, suspend or otherwise restrict Tenant’s access to the Stairwells (or anyportion thereof) or Tenant’s access to and from the 13th and/or 14th floors throughthe Stairwells (or any portion thereof) at any time, without notice, for thepurposes of maintaining or repairing the Stairwells, or if Landlord otherwisedetermines, in its sole and absolute discretion, that such limitation,suspension or restriction is in the best interests of a safe and orderlyoperation of the Building. Notwithstanding the foregoing, Landlord will use commercially reasonableefforts to give Tenant at least 24 hours prior telephonic notice prior toimposing any temporary limitation or restriction of Stairwells access asprovided in the foregoing sentence, emergencies (as determined by Landlord)excepted, but Landlord shall not be subject to any liability for failure togive Tenant prior telephonic notice of such temporary limitation orrestriction, nor shall such failure render the Lease void or voidable or because for any abatement of Tenant’s rental obligations for the Premises.  Additionally, Landlord shall have the rightto permanently suspend Tenant’s access to and from the Stairwells as providedherein at any time upon ten days’ prior written notice in any of the followingevents:  (i) if the access permittedherein becomes prohibited by any applicable laws; (ii) if Landlord determines,in its sole discretion, that the access permitted herein is causingunreasonable interference with Landlord’s or other third parties’ use and/oroperation of the Building; and/or (iii) if Landlord desires to install anaccess system to the Stairwells similar in nature to the Stairwell Work.  Notwithstanding the foregoing noticerequirement, no advance notice of termination of access to and from theStairwell as provided herein shall be required in the event of an emergency (asdetermined by Landlord) requiring immediate termination, or if such terminationis based on subparagraph (i) above.

(e)           Removal of Stairwell Work.  At the end of the Term or at such time thatTenant’s right of access to the Stairwells is otherwise terminated as providedherein, whichever first occurs, Tenant shall, at its sole cost and expense,remove the Stairwell Work and restore the Stairwells to the same condition asexisted prior to the installation of the same, ordinary wear and tear excepted.  In the event that Tenant does not remove theStairwell Work and restore the Stairwells as provided herein, Landlord mayremove the Stairwell Work and charge the costs to Tenant as additional rent,which obligations shall survive the expiration or earlier termination of theLease.

 

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