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HomeMy WebLinkAbout8726RESOLUTION NO. 8726 A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND COUNTRYWIDE TELECOMMUNICATIONS, LLC RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT AND AUTHORIZING THE EXPENDITURE OF $852,500 THEREFOR FROM THE 1992 -2001 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND WHEREAS, Countrywide Telecommunications, LLC (the "Company ") has expressed a willingness to locate its business activities at the Pueblo Memorial Airport Industrial Park and has committed to employ five hundred fifty (550) full time employees, and WHEREAS, Company through the Pueblo Economic Development Corporation has made application for funds from the 1992 -2001 Sales and Use Capital Improvement Projects Fund, and WHEREAS, the City Council is willing to approve such application for funds upon the terms and conditions set forth herein; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The City Council does hereby find and determine that Countrywide Telecommunications LLC's application for funds meets and complies with the criteria and standards established by Ordinance No. 6381 and will create employment opportunities justifying the expenditure of public funds. SECTION 2. The Agreement dated as of June 14, 1999 between Pueblo, a municipal corporation and Countrywide Telecommunications, LLC, having been approved as to form by the City Attorney, is hereby approved. The President of the City Council is authorized to execute and deliver the Agreement in the name of the City and the City Clerk is authorized and directed to affix the seal of the City thereto and attest same. SECTION 3. Funds in an amount of $852,500 are hereby appropriated and authorized to be expended and made available to Countrywide Telecommunications, LLC out of the 1992 -2001 Sales and Use Tax Capital Improvement Projects Fund, Projects To Be Determined Account, for the sole purpose of the job creating capital improvement project and in the manner described in the attached Agreement. The funds hereby authorized to be expended shall be released and paid by the Director of Finance to or for the benefit of Countrywide Telecommunications, LLC after receipt (i) by the City Clerk of the documents required to be filed pursuant to paragraph 2(c) of the Agreement and (ii) by the Director of Finance of written requests for payment required by paragraph 2(d) of the Agreement. FI!II 1q I 1, IIW SECTION 4 This Resolution shall become effective upon final passage. INTRODUCED June 14, 1999 BY Rich Golenda Councilperson APPROVED: I M I�--- President of the Council ATTEST: k MRS 6811 -am o mu= —,K �� V--L JUNE 14, 1999 AGENDA CITY COUNCIL BACKGROUND MEMORANDUM RESOLUTION APPROVING AGREEMENT WITH COUNTRYWIDE TELECOMMUNICATIONS, LLC. RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT AT PUEBLO MEMORIAL AIRPORT INDUSTRIAL PARK A Resolution is being presented to City Council for approval of an Agreement with Countrywide Telecommunications, LLC (the "Company "). Company intends to locate its business at Pueblo Memorial Airport and has committed to employ 550 full -time employees during a 7 year Repayment Period starting September 1, 2000. City will advance $852,500 to Company ( "City Funds "). Company will spend City Funds for acquisition of equipment to be located in its offices at the Pueblo Memorial Airport Industrial Park. If Company defaults in its employment commitment during the 7 year repayment period, Company shall repay to City a pro -rata share of City Funds based upon full -time employees actually employed by Company. Company's repayment obligation will be secured by a security interest in the equipment and the personal guarantee of Company's three (3) owners. The financial details of Company's project including job commitment and repayment obligations were negotiated by the Executive Committee of Pueblo Economic Development Corporation ( "Executive Committee "). The Executive Committee evaluated the business and financial ability of Company to fulfill its employment commitment, financial and other contractual obligations under Company's Agreement, and recommended that the City Council approve Company's project and related transactions. AGREEMENT THIS AGREEMENT entered into as of June 14, 1999 between Pueblo, a municipal corporation (the "City ") and Countrywide Telecommunications, LLC, a Colorado limited liability company (the "Company "). WHEREAS, Company has expressed a willingness to locate its business within the Pueblo Municipal Airport Industrial Park, and in furtherance thereof has through the Pueblo Economic Development Corporation made application for funds with the City, and WHEREAS, the City has approved such application and will make funds available to Company subject to and upon the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Company agree as follows: 1. The following terms as used in this Agreement shall have the following meaning unless the context clearly indicates otherwise: "Employment Commitment Date" means September 1, 2000. "Equipment" means new business personal property described in attached Exhibit "A ", acquired, installed, kept, maintained and used by Company after date of this Agreement in the Facility. "Equipment" does not mean intangible property, including but not limited to, computer software and /or computer software development costs. "Computer software" includes but is not limited to all computer data base, programs and routines, and documentation. "Facility" means office space of not less than 24,000 rentable square feet located in the building at 1 William White Boulevard, No. 1 -E, Pueblo, Colorado. "Full -Time Employee" means a person who actually performs work at the Facility for not less than thirty -two (32) hours per week whether employed by Company or by an outside entity acting as an agency to provide Full -Time Employees for Company. The term "Full -Time Employee" does not include independent contractors nor employees of independent contractors except as described herein. "Lease" means an enforceable and binding lease of the Facility between Company and the owner of the Facility for a term of not less than five (5) years. "Quarterly Employees" means the sum of the number of Full -Time Employees on each business day of a Quarter divided by the sum of the business days in such Quarter. "Quarter" means three consecutive calendar months. 2. City will advance to or for the benefit of Company funds in the amount of $852,500.00 (the "City Funds "), subject to and contingent upon the following conditions and covenants which Company agrees to perform and comply with: (a) Company shall use and all City Funds shall be spent solely for the acquisition of Equipment at fair market value from a reputable vendor in an arms - length transaction. Acquisition of equipment from any person or entity related to Company or any of its managers is not an arms- length transaction. (b) Company shall cause the Facility to be leased and equipped in an expeditious manner. (c) Company shall file in the office of the City Clerk the following: (i) Company's certificate or other evidence of authority to transact business in the State of Colorado, (ii) certified copy of the resolution of the governing board of Company approving this Agreement and authorizing its officers to execute and deliver this Agreement in the name of Company, (iii) an executed copy of the Lease; (iv) an executed original of the Continuing Guaranty, attached as Exhibit B, and (v) evidence satisfactory to City that Company has located its business in the Facility. The date of such filings is herein referred to as "Closing." If Closing does not occur on or before November 1, 1999, or such later date as Company and City shall mutually agree, this Agreement shall terminate and City and Company shall be released and discharged from all obligations hereunder. (d) Company filing with the Director of Finance of City written request for payment certified by an officer of Company that the amounts included in the requests for payment have not been included in any prior request for payment and are for the acquisition of Equipment, identifying the equipment, including invoices and, after delivery, certificates of delivery and installation in the Facility. 3. Company acknowledges and agrees that the primary purpose of City in entering into this Agreement and the sole benefit to the City for making City Funds available to Company hereunder is the creation of jobs. Therefore, Company represents, covenants, and agrees that it will employ not less than five hundred fifty (550) Full -Time Employees at the Facility by the Employment Commitment Date and thereafter (the "Employment Commitment "). 4. Notwithstanding anything contained herein to the contrary, if Company shall for any reason default in its Employment Commitment set forth in paragraph 3 hereof, Company shall repay to City a pro -rata share of the City Funds advanced by City under paragraph 2 hereof based upon the number of Full -Time Employees employed by Company at the Facility (the "Repayment Obligation "), as follows: (a) During the seven (7) year period starting on the Employment Commitment Date and ending eighty -four (84) months thereafter (the "Repayment Period ") Company shall pay to City an amount each Quarter equal to the Quarterly Employees less than the number of Quarterly Employees specified in each Quarter during the Repayment Period as follows: -2- Quarterly Q uarter Employees (i) Each Quarter during the period from 175 9/1/2000 through 8/31/2001 (ii) Each Quarter during the period from 350 9/1/2001 through 8/31/2002 (iii) Each Quarter during the period from 550 9/1/2002 through 8/31/2007 multiplied by $55.38 (the "Company's Quarterly Payments "). For example, if for the Quarter ending June 30, 2003 the Quarterly Employees is 450, the amount payable by Company to City on or before July 15, 2003 would be (550 - 450) x $55.38 = $5,538.00. (b) Company's Quarterly Payments, if any, shall be paid to the City without notice, demand, deduction or setoff on or before the fifteenth (15th) day of the month after the end of each Quarter during the Repayment Period and for one month thereafter at the office of the Director of Finance of City, 1 City Hall Place, Pueblo, Colorado, 81003. All past due Company's Quarterly Payments shall bear interest at the rate of ten (10) percent per annum until paid. (c) Within fifteen (15) days after the end of each Quarter after the Employment Commitment Date and for one calendar month after the Repayment Period, Company will submit to City's Director of Finance Company's statements showing the Quarterly Employees for the preceding Quarter and the basis upon which Quarterly Employees and Company's Quarterly Payment, if any, were computed certified by an officer of the Company to be true and correct. For purposes of verifying such employment, City shall have access to Company's books and records including payroll records. City will, however, respect the right of employees and Company as to confidentiality of personnel records. (d) If Company defaults in its Repayment Obligation, Employment Commitment, and/or Security Agreement, and such default is not cured within sixty (60) days after written notice specifying the default is given by City to Company, then in such event, City may declare the entire balance of Company's Repayment Obligation due and owing together with interest thereon at the rate of ten (10) percent per annum, and for such purpose, the entire balance of Company's Repayment Obligation shall be an amount equal to 550 times $55.38 multiplied by the remaining Quarters of the Repayment Period plus the amount of Company's unpaid Quarterly Payments, if any, but in no event more than the amount of City Funds advanced by City under paragraph 2 hereof and interest as herein provided. Company's Repayment Obligation is absolute and unconditional and shall not be abated, reduced, diminished, modified, withheld or otherwise offset for any cause or reason whatsoever. 5. All City Funds advanced to Company by City under this Agreement shall be deemed to be a debt of Company payable to City until Company performs and discharges its obligations hereunder including its Repayment Obligation contained in paragraph 4. Company's obligations under this Agreement including its Repayment Obligation shall be secured by a perfected security interest -3- in the Equipment. Contemporaneously with the execution of this Agreement, Company shall execute and deliver to City Company's Security Agreement (in substantially the form attached as Exhibit "A "), Financing Statement and other documents required to perfect a first security interest in the Equipment (the "Security Agreement "). 6. (a) City Council of City may, in its sole discretion, relieve Company, in whole or in part, from Company's Repayment Obligation set forth in paragraph 4, if the City Council, after public hearing, finds and determines based upon competent evidence presented at such hearing that Company was prevented from complying with its Employment Commitment by reason of an act of God, or the elements, fire, explosion, strike, insurrection, riot, shortage or unavailability of materials, supplies or labor, interruption of transportation facilities, governmental laws, regulations or restrictions, or other causes beyond Company's reasonable control. The findings and decision of the City Council shall be final and binding upon Company and City. (b) Prior to instituting any proceedings to enforce Company's Repayment Obligation under paragraph 4, City shall notify Company in writing of its intention to institute such proceedings. If Company desires to seek relief pursuant to paragraph 6(a), Company, within twenty (20) days after receipt of City's notice, shall deliver to City its written request for relief specifying the grounds upon which such relief is sought. Within sixty (60) days after receipt of Company's request, City will schedule a hearing before the City Council and give written notice to Company of the time and place of such hearing. Failure of Company to timely deliver its written request for relief or to appear and submit evidence in support of its request at a scheduled hearing shall constitute a waiver of any right of Company to a hearing before City Council. (c) No delay by the City in scheduling a hearing, or failure by City to exercise its right to enforce this Agreement, including Company's Repayment Obligation or the Security Agreement, and no partial or single exercise of that right, shall constitute a waiver of that right, unless the City Council otherwise expressly provides in its findings and decision made pursuant to paragraph 6(a). 7. In the event of any litigation arising out of this Agreement, the court shall award to the prevailing party its costs and reasonable attorney fees. All such litigation shall be filed in the District Court, County of Pueblo, State of Colorado and each party submits to the jurisdiction of that Court. To the extent allowed by law, each party waives its right to a jury trial. 8. This Agreement expresses the entire understanding of the parties and supersedes any and all prior dealings and commitments with respect to the subject matter of this Agreement and may not be amended except in writing signed by City and Company. 9. This Agreement shall be construed in accordance with and governed by the laws of the State of Colorado without regard to conflict of law principles. 10. The covenants, representations and warranties made by each party herein shall survive sB thereof by City or the failure or delay of City in the performance of any covenant or provision under this Agreement on its part to be performed. In consideration of City entering into this Agreement, Company hereby waives and discharges City, its officers, agents and employees from any and all claims for any and all such damages. No breach, default, delay or failure of City under this Agreement shall be or be construed to be a waiver or release of Company's Repayment Obligation under paragraph 4 hereof with respect to the amount of City Funds actually advanced or paid by City to or for the benefit of Company pursuant to paragraph 2 hereof. Company shall have the right to file an action to specifically enforce City's obligations under this Agreement without showing or proof of an inadequate remedy at law. 17. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 18. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the other provisions of this Agreement which shall remain in full force and effect. Executed at Pueblo, Colorado, the day and year first above written. [SEAL] ATTEST: � 1 By City Cl [SEAL] Puebl Municipal Cor oration I l t��/ President of the City Council Countrywide Telecommunications, LLC By PTM Telecommunications, Inc., Manager By 40�� W Name: Steve Kipuros Title: President CONTINUING GUARANTY FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged, and as inducement to the City of Pueblo, a municipal corporation (the "City ") to enter into the attached Agreement dated June 14, 1999 between City and Countrywide Telecommunications, LLC, a Colorado limited liability company (the "Company ") (the "Agreement ") and to advance to Company the sum of $852,500 pursuant to the terms and covenants of the Agreement, the undersigned Steve Kipuros, Oliver Shatz and Susan A. Pappalardo (the "Guarantors ") jointly and severally unconditionally guarantee and promise to pay to City, or order, on demand, in lawful money of the United States, the full amount of Company's Repayment Obligation described in and in accordance with the terms and provisions of paragraph 4 of the Agreement (the "Indebtedness "). The liability of Guarantors under this Guaranty shall not exceed at any one time the principal sum of $852,500. This is a continuing irrevocable guaranty relating to the Indebtedness, including successive transactions which shall either continue the Indebtedness or from time to time modify or renew it. Any payment by Guarantors shall reduce their maximum obligation hereunder. The obligations of Guarantors hereunder are joint and several, and independent of the obliga- tions of Company, and a separate action or actions may be brought and prosecuted against Guarantors, jointly and severally, whether action is brought against Company or whether Company be joined in any such action or actions. Guarantors acknowledge that the payment of the Indebted- ness may extend beyond six (6) years from the date of this Agreement, Guarantors hereby waive any defense to the enforcement of this Guaranty or the collection of the Indebtedness based upon laches or any statutory or other period of limitation, provided that any action to enforce this Guaranty, or to collect the indebtedness, shall be filed on or before December 31, 2006. Guarantors authorize the City, without notice or demand and without affecting their liability hereunder, from time to time to (a) renew, compromise, extend, accelerate or otherwise change the time for payment of, or otherwise change or modify the terms of the Indebtedness or any part there- of, (b) take and hold security for the payment of this Guaranty or the Indebtedness guaranteed, and exchange, enforce, waive and release any such security; (c) apply such security and direct the order or manner of sale thereof as City in its discretion may determine; and (d) release or substitute any one or more of the Guarantors. City may without notice assign this Guaranty in whole or in part. Guarantors waive any right to require City to (a) proceed against Company; (b) proceed against or exhaust any security held from Company; or (c) pursue any other remedy in City's power whatsoever. Guarantors waive any defense arising by reason of any disability or other defense of Company or by reason of the cessation from any cause whatsoever of the liability of Company. Until the Indebtedness of Company to City shall have been paid in full, Guarantors shall have no right of subrogation, and waive any right to enforce any remedy which City now has or may hereafter have against Company, and waive any benefit of, and any right to participate in any security now or hereafter held by City. Guarantors waive all presentments, demands for performance, notices of non- performance, protests, notices of p rotest , notice of dish n r and ' es of acceptance of this Guaranty. EXHIBIT "B" �1 Any debts or other financial obligations of Company now or hereafter held by Guarantors are hereby subordinated to the Indebtedness of Company to City and such debts or other financial obligations of Company to Guarantors, if City so requests, shall be collected, enforced and received by Guarantors as trustees for City and be paid over to City on account of the Indebtedness of Company to City but without reducing or affecting in any manner the liability of Guarantors under the other provisions of this Guaranty. Guarantors agree that it is not necessary for City to inquire into the powers of Company or the officers, directors, or agents acting or purporting to act on its behalf, and the Indebtedness made or created in reliance upon the professed exercise of such powers is guaranteed hereunder. Guarantors agree to pay a reasonable attorneys' fee and all other costs and expenses which may be incurred by City in the enforcement of this Guaranty. Guarantors agree that this Guaranty is a contract entered into in Pueblo County, Colorado. The District Court for the County of Pueblo, State of Colorado shall have jurisdiction over any suit or action which involves this Guaranty and venue in Pueblo County, Colorado shall be proper. Guarantors consent to the personal jurisdiction of that Court and agree that service of process may. be made upon Guarantors either within or without the State of Colorado. Any notice hereunder shall be sufficiently given if given personally or mailed by certified mail, postage prepaid, addressed: (a) if to City, City Manager, City of Pueblo, 1 City Hall Place, Pueblo, Colorado, 81003, or (b) if to Guarantors, at the addresses shown after their respective signatures hereon, or to such other addresses as any party hereto shall specify in written notice to the other parties. Time is of the essence hereof. This Guaranty shall be binding upon and inure to the benefit of City and Guarantors and their respective heirs, personal representatives, successors and assigns. The word "Guarantors" shall mean any one or more of them where the context and construction so require. IN WITNESS WHEREOF the undersigned Guarantors have executed this Guaranty in Pueblo, Colorado this day of 1999. Name: Steve Kipufos Signature I __j� -- -2- Address: Social Security No. STATE OF COLORADO Name: Oliver Shatz Signature: . - ( 1 1 � _ %� Address: G octal Security No. -�- Name: Susan A. Pappalard' Signature: / ' Address 4 :M ,K s5 6 Social Security No. COUNTY OF 1 L-W_ $ ss. a-t2 r; The foregoing was acknowledged before me this day of 1999 by Steve Kipuros, Oliver Shatz and Susan A. Pappalardo. My commission expires: - , � [SEAL] Notary Public (AWn l` LAjk (4 QcK�� ' i SLISArJ W n (JA �-� ju r� r L l � CA tA , I JANE A. PEDEN _3 _ NOTARY PUBLIC, MASSACHUSETTS MY COMMISSION EXPIRES JUNE 22, 2001 D ED O City of Pueblo OFFICE OF THE CITY ATTORNEY 127 Thatcher Building PUEBLO, COLORADO 81003 MEMORANDUM TO: Gina Dutcher, City Clerk FROM: City Attorney RE: Countrywide Telecommunications, LLC DATE: June 7, 1999 The City Council will on June 14, 1999 consider a Resolution relating to an Agreement with Countrywide Telecommunications, LLC. After approval of the Resolution and Agreement by the City Council please have City officials execute the two execution copies of the Agreement enclosed herewith and return one executed copy to me. We also enclose the following documents to be retained in your file with respect to this transaction and Resolution: (a) copy of Articles of Incorporation (b) certified copy of Consent To Action by the member of Countrywide Telecommunications, LLC (c) original executed Continuing Guaranty (d) executed Security Agreement. If you have any questions, please call me. Very truly yours, T o�m E ag�or sm enc 06/02/99 14:39 '$ 10003 CONSENT TO ACTION BY THE MEMBERS OF COUNTRYWIDE TELECOMMUNICATIONS, LLC Pursuant to C_R_S_ § 7 -50 -711 of the Colorado Limited Liability Company Code, the undersigned, constituting all of the Members of Countrywide Telecommunications, LLC, a Colorado limited liability company (the "Company "), do hereby consent to the following action which shall have the same force and effect as a unanim action taken at a duly called and held meeting of the Members, effective the i st day of May, 1999. WHEREAS, the Company has determined that it is necessary and convenient to the conduct of the business of the Company and in the best interests of the Company for the Company to enter into one or more agreements (the "Agreements ") with the city of Pueblo ( "Pueblo "); WHEREAS, Pueblo has requested the Company to provide resolutions evidencing the signing authority of Steve Kipuros on behalf of the Company; WHEREAS, Steve Kipuros, as the President of PTM Telecommunications, Inc., which is a member and manager of the Company, is authorized to act on behalf of the Company, and the members of the Company desires to formally document such authority_ NOW Ti1EREFORE, BE IT RESOLVED, that Steve Kipuros be and he is hereby authorized to execute and deliver, in the name and on behalf of the Company, the Agreements, including Such changes, additions and deletions as to any or all of the terms and provisions thereof as he shall deem proper, such execution of the Agreements to be conclusive evidence that all of the terms and provisions thereof are deemed to be proper, and any and all amendments thereto, substitutes therefor, or extensions thereof, FURTHER RESOLVED, that Steve Kipuros be and he hereby is authorized and directed to do or cause to be done any and all such acts and things and to execute and deliver, or cause to be executed and delivered, other documents, agreements and instnunents, including, without limitation, any bill of sale, lease, security agreement, promissory note and guaranty, as such he deems necessary or desirable to conform to or in connection with the execution and delivery of the Agreements in such form as he shall by his execution and delivery thereof approve, such execution and delivery thereof evidencing the approval thereof and authority therefor and the approval and ratification thereof by the Members; :72087 06/02/99 14:39 $ 0004 FURTHER RESOLVED, that all documents executed and delivered and all other actions taken by Steve Kipuros in connection with any of the foregoing matters prior to the date hereof be, and they hereby are, ratified and approved in all respects; FURTHER RESOLVED that Pueblo shall be provided with written notice of any revocation, modification or amendment of any of the foregoing provisions; FURTHER RESOLVED that this Consent of Members may be executed in any number of counterparts, and may be signed by signature delivered by facsimile transmission, all of which together shall constitute one original, to be effective as of the date first written above. BEING ALL OF THE MEMBERS OF COUNTRYWIDE COMMUNICATIONS, LLC: PTM Telecommunications, Inc. 13y: Steve Kipuros, President Oliver Sh Susan A. Pappalardo 972.087 -2- 06/02/99 14:38 a [a 002 COUNTRYWIDE TELECOMMUNICATIONS, LLC MANAGER'S CERTIFICATE I, Steve Kipuros, hereby certify as follows: 1. I am the duly elected, qualified and acting President of PTM Teleeommmunications, Inc., which is a member and manager of Countrywide Telecommunications, LLC, a Colorado limited liability company (the "Company "). 2. Attached hereto is a true and correct copy of resolutions duly adopted by unanimous written consent of the members of the Company. Such resolutions have not been amended, modified or rescinded since their adoption and are in full force and effect_ EXECUTED as of the T _ day of June, 1999. 717M Telecom - Luiications, Inc. By: Steve Kipurns, President , #73297 CONTINUING GUARANTY FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged, and as inducement to the City of Pueblo, a municipal corporation (the "City ") to enter into the attached Agreement dated June 14, 1999 between City and Countrywide Telecommunications, LLC, a Colorado limited liability company (the "Company ") (the "Agreement ") and to advance to Company the sum of $852,500 pursuant to the terms and covenants of the Agreement, the undersigned Steve Kipuros, Oliver Shatz and Susan A. Pappalardo (the "Guarantors ") jointly and severally unconditionally guarantee and promise to pay to City, or order, on demand, in lawful money of the United States, the full amount of Company's Repayment Obligation described in and in accordance with the terms and provisions of paragraph 4 of the Agreement (the "Indebtedness "). The liability of Guarantors under this Guaranty shall not exceed at any one time the principal sum of $852,500. This is a continuing irrevocable guaranty relating to the Indebtedness, including successive transactions which shall either continue the Indebtedness or from time to time modify or renew it. Any payment by Guarantors shall reduce their maximum obligation hereunder. The obligations of Guarantors hereunder are joint and several, and independent of the obliga- tions of Company, and a separate action or actions may be brought and prosecuted against Guarantors, jointly and severally, whether action is brought against Company or whether Company be joined in any such action or actions. Guarantors acknowledge that the payment of the Indebted- ness may extend beyond six (6) years from the date of this Agreement, Guarantors hereby waive any defense to the enforcement of this Guaranty or the collection of the Indebtedness based upon laches or any statutory or other period of limitation, provided that any action to enforce this Guaranty, or to collect the indebtedness, shall be filed on or before December 31, 2006. Guarantors authorize the City, without notice or demand and without affecting their liability hereunder, from time to time to (a) renew, compromise, extend, accelerate or otherwise change the time for payment of, or otherwise change or modify the terms of the Indebtedness or any part there- of, (b) take and hold security for the payment of this Guaranty or the Indebtedness guaranteed, and exchange, enforce, waive and release any such security; (c) apply such security and direct the order or manner of sale thereof as City in its discretion may determine; and (d) release or substitute any one or more of the Guarantors. City may without notice assign this Guaranty in whole or in part. Guarantors waive any right to require City to (a) proceed against Company; (b) proceed against or exhaust any security held from Company; or (c) pursue any other remedy in City's power whatsoever. Guarantors waive any defense arising by reason of any disability or other defense of Company or by reason of the cessation from any cause whatsoever of the liability of Company. Until the Indebtedness of Company to City shall have been paid in full, Guarantors shall have no right of subrogation, and waive any right to enforce any remedy which City now has or may hereafter have against Company, and waive any benefit of, and any right to participate in any security now or hereafter held by City. Guarantors waive all presentments, demands for performance, notices of non - performance, protests, notices of protest, notice of dishonor, and notices of acceptance of this Guaranty. Any debts or other financial obligations of Company now or hereafter held by Guarantors are hereby subordinated to the Indebtedness of Company to City and such debts or other financial obligations of Company to Guarantors, if City so requests, shall be collected, enforced and received by Guarantors as trustees for City and be paid over to City on account of the Indebtedness of Company to City but without reducing or affecting in any manner the liability of Guarantors under the other provisions of this Guaranty. Guarantors agree that it is not necessary for City to inquire into the powers of Company or the officers, directors, or agents acting or purporting to act on its behalf, and the Indebtedness made or created in reliance upon the professed exercise of such powers is guaranteed hereunder. Guarantors agree to pay a reasonable attorneys' fee and all other costs and expenses which may be incurred by City in the enforcement of this Guaranty. Guarantors agree that this Guaranty is a contract entered into in Pueblo County, Colorado. The District Court for the County of Pueblo, State of Colorado shall have jurisdiction over any suit or action which involves this Guaranty and venue in Pueblo County, Colorado shall be proper. Guarantors consent to the personal jurisdiction of that Court and agree that service of process may be made upon Guarantors either within or without the State of Colorado. Any notice hereunder shall be sufficiently given if given personally or mailed by certified mail, postage prepaid, addressed: (a) if to City, City Manager, City of Pueblo, 1 City Hall Place, Pueblo, Colorado, 81003, or (b) if to Guarantors, at the addresses shown after their respective signatures hereon, or to such other addresses as any party hereto shall specify in written notice to the other parties. Time is of the essence hereof. This Guaranty shall be binding upon and inure to the benefit of City and Guarantors and their respective heirs, personal representatives, successors and assigns. The word "Guarantors" shall mean any one or more of them where the context and construction so require. IN WITNESS WHEREOF the u dersigned Guarantors have executed this Guaranty in Pueblo, Colorado this ,l) day of , / L , 1999. Name: Steve Kipuros -2- Address: Social Security No. Name: Oliver Shatz Signature: Address: L 7 3C) c° r /, 0 c rL./ �S C Y Social Security No. Name: Susan A. Pappala Signature_. Address." Vii& 1)6 6 x/13 Social Security No. STATE OF COLORADO ) ss. COUNTY OF �- ) The foregoing was acknowledged before me this ` day of LZ" L 4 _ , 1999 by Steve Kipuros, Oliv Sh atz and Susan A. Pappalardo. f My commission expires: 0 3 - r ` [SEAL] Notary Public fi►� rl� I55 `T (`'tfl SS 7l j e c J iA aLe A� e- a , -3- -31 MAY 17 1 59 19 :12PV PED-0 719 54� 1650 P.8 /9 L SICURIT'T AGRIEMENT Deb /pr: A � ` Natner 31 _.._L _ Vi i` v l / Address: Residence. _ _ -- —_ —_— -- Secured Party, Name: Address Debtor, for consideration haro6y grants to Secured Aarty a security fnfersiv in thu follow acquired ebtor, together with all oddifions, accessions, s46slituN an ing property, and on and all proverty of like typo now own or hereafter ired by Cnt, proceed products therefrom, including natural increase of Ilyestock, all he }ein called the. "Collates "; 1- Startel 57001 Base Unit, 1 -586 DX4 /200 Divital Bank Processor, 2 -2 GIG Hard Drive, 10 -T1 Span (240 channels) (2 for VoiceNet), 7 -8 -Port DID Teleset cards, 4 -8 -Port Loop Card, ]- ACD.Interface to PI, ]- Switch _ Card, 2 -BIC CPU card, 1- Operator Display Card, I- Switch Matrix Card, 2 -Bank Interface Card, ] -Intel 586 DX4 /200 Data Processor, 1 -64M Ram, 1 -Zip Hard Drive Back -up, 1- Floppy Disk Drive, 1- Serial Data Ports (1 -64), 1- Remote Diagnostics Kit, I -MA Terminal, 2 -Hot Swappable Power Supplies, 1- System Printer & System o er Line Conditioner, 50- Operator Workstation with PC Connect Software (PC Hardware Supplied by customer), 50- Startel PC Keyboards, 50- Operator Consoles, 2- Communication Server (8 ports Fax & 1 Port Internet), I -A D Basic Spares Kit including: 1 Switch ACD CPU, I BIC Card, ICMI card, 1 Switch Card, 1 Power Panel, 1 -DP Spares Kir including: ! Pentium CPU. I Serial Port Contoller, I -NT Spares, 8 -Alpha Paging Modems, 58 -Pend m PC Station:, Includ -ing. 58 -17 inch SVGA Color Displays, 50- Telesecretary Workstation's, 8- Manager Worksta ions, I- Teledata Billing System, 1 -CA 48 port IVR- System, 1 -EM 20 port.Data Fax System„ 1 -1 position EF Intern fl Phone Sy stem, 1 -15 hoar UPS System, 6-Printer Stations, 1- Video & Training Conference Station, 50- Applic Headsets, ]- Stariel 48 port VM System. To secure payment of the Indebtedners *vidonced by T_. �45r Cdt4 une � ,.i'k�� 0 -fwe�e l lorc � encl 5'eCurecd P AS Cc l fir zk6Vick �F'` reels -temrt as and all othor liabilities of Debtor to Secured Party absolute or contingent, due or to bocoma due, now existing or hereofter arising including liabilities ar(str 9 because of funds advamced in thct fe Ut tl'ai option Of Secured Party, all kiniin coaled the "OBLIGATIONS ". DEBTOR EXPRESSLY WARRANTS AND CtaVINAN'S.Sx The Collateral % wiwi or bought primarily foci [] Personal, family or haunehotd purposes 0 Use in farming opotvs ions; Uba it bvilliess. ThatD reslc`ercrs k c oy Owed aborop, anc the Collateral will be kept at Lac afian County )K State C� If any of the Collotera' is crops, oil, gas, or minerals to be exfroc'ad or timber to be cut, or goods which are or ore to become fixtures, sold Collateral concerns he fallowing described real estate shvate in the County of and State of Coto ado, to -will The undersigned arknowiadge ro :eitst of a : -opy of this Seturity.4greement or dole ,ereof, and agrov that it includes and Is subject to the ADDITIONAL PROVISRONS on the reverse side heteof, tine same own inr,orporaled hereto by refers ^ce. Debtor: 0 , 7 - puted this 1 C,Z day of EXRIBIT "All No. 651. ftev. 8.90. BM f .M Put lkh't•.g, 17A.1 Whrre St, 6.nvcr, CO 80202 — (303) 292.2500 — 1 1-96 —••/ w.w.c f.ta �.vae Bd6in06b /� L•-/ l _ i �f/ 1- __, L -V�J L.>iUl T /' rQu- ' co ADDITIONAL PROVISIONS FURTHER WARRANTIES AND COVENANTS OF THE DEBTOR. The Debtor hereby warrants and covenants that: 1. Except for the security interest g, onted hereby, the Debtor is, or to the extent that this agreement states that the Collateral is to be acquired offer the dare hereof, will be, the owner of the Coliciercl free from any prior Gen, security interest or encumbrance and the Debtor will defend the Collateral against all claims end demands of all persons of any time claiming the some or any interest therein. 2. Irrespective of whether the Secured Party clams a security interest in proceeds hereunder, the Debtor will not sell or offer to sell or otherwise transfer or encumber the Collateral or ony interest therein without the prior written consent of the Secured Party. The Colloteral will be located of and kept at the location shown on the reverse side hereof and sho!I not be removed without the prior written consent of the Secured Party. 3. The Debtor will pay all taxes and assessments of every nature which may be levied or cssessed against the CeCotero!. 4. The Debtor will keep the Collateral at all times insured against risks of loss or damage by fire (including so- called extended coverage), theft and such other cosuo!ties cis the Secured Party may reasonably require, including collision in the case of any motor vehicle, all in such amounts, under such forms of policies, upon such terms, for such periods, and v,ritten,by such companies or underwriters as the Secured Party may approve, losses in all cases to be payable to the Secured Party and the Debtor as their interest may appear. All policies of insuronce shall provide for at least ten days' prior written notice of cance!Ietion to the Secured Party and the Debtor shall furnish the Secured Party with certficotes of such insuronce or other evidence sofisfactory to the Secured Party as to compliance wifh the provisions of this paragraph. The Secured Party may act as attorney for the Debtor in making, adjusting and settling claims under or cancelling such insurance and endorsing the Debtor's name on any drafts drown by insurers of the Collateral. 5. The Debtor will not permit or allow any adverse lien, security interest or encumbrance whatsoever upon the Collateral, and will not permit the some to be attached or repfevined. 6. The Collateral is in good condition, and the Debtor will, of the Debtor's own expense, keep the some in good condition and from time to time, forthwith, replace and repair all such parts of the Collateral as may be broken, worn out, or damaged without ollowing any lien to be Greeted upon the Collateral on account of such repiocement or repairs, and the Secured Party may examine and inspect the Collateral at any time, wherever located. 7. The Debtor will not use the Collateral in violation of any applicable statutes, regulations or ordinances. ADDITIONAL RIGHTS OF PARTIES. At its option, but without obligation to the Debtor, the Secured Patty may discharge taxes, liens, or security interests or other encumbrances of any time levied or placed on the Collateral, may place and pay for insurance thereon, may order and pay for the repair, maintenance and preservation thereof and may pay any necessary fiiing or recording fees. The Debtor agrees to reimburse the Secured Party on demand for any payment mode or any expense incurred by the Secured Party pursuant to the foregoing authorization. Until default the Debtor may hove possession of the Collateral and use it in any lawful manner, and upon default the Secured Party shall have the immediate right to the possession of the Collateral. Borrower hereby waives oil right of homestead exemption in the collateral, including that granted by C.R.S. 4 38.41- 201.6, and waives any other statutory exemptions, including those granted by Sec. 13 -54 -102, C.R.S., insofor as such exemptions pertain to the Collateral described in this Security Agreement. THE DEBTOR SHALL BE IN DEFAULT under this agreement upon the happening of any of the following events or conditions: (al default in the payment or performance of any obligation, covenant or liability contained or referred to herein or in any note evidencing the some (b) the making or furnishing of any warranty, representation or statement to the Secured Party by or on behalf of the Debtor which proves to have been false in any material respect when made or furnished. (c) loss, theft, damage, destruction, sole or encumbrance to or of any of the Collateral, or the making of any levy, seizure or attachment thereof or thereon; Id) death, change of name, dissolution, merger, termination of existence, insolvency, business failure, appointment of a receiver of any part of the property of, assignment for the benefit of creditors by, or the commencement of any proceeding under any bankruptcy or insolvency laws of, by or against the Debtor or any guarantor or surety for the Debtor. UPON SUCH DEFAULT and at any time thereafter, or if it deems itself insecure, the Secured Potty may declare oil Obligations secured hereby immediately due and payable subject to any notice required by law or agreement, and shall hove the remedies of a secured party under Article 9 of the Colorado Uniform Commercial Code. The Secured Party may require the Debtor to assemble the Collateral and deliver or make it available to the Secured Party at a place to be designcted by the Secured Party which is reasonably convenient to both parties. Expenses of �etoking; holding, preparing for safe, selling or the like shall, subject to UCCC limits if applicable, include the Secured Party's reasoncble attorneys' fees and legal expenses. Unless the Collaterol is perishable or threatens to decline speedily in value cr is of a type customarily sold on a recognized market, the Secured Party will give the Debtor reasonable notice of the time and place of any public sale thereof or of the. time after which any private sole or any other intended disposition thereof is to be mode. The requirements of reasonable notice shall be met if such notice is mailed, postage prepaid, to the address of the Debtor shown ct the beginning of this Agreement of least ten days before the time of the sole or disposition. As respects crops covered by this Security Agreement, upon such default, it is agreed by the parties hereto that said crops ore perishable or may decline speedily in value, and that the Secured Party may protect, cultivate, care for, harvest, or process said crops at the expense of the Debtor and may sell and dispose of said crops of private sole as the some mature or ore harvested, at the best price then available. Where the Collateral is livestock, it is agreed that a commercially reasonable means of disposing of the Collateral shall include sale of such Collaterol in the customary manner on the Denver, Colorado, livestock market or through a licensed livestock sales ring in Colorado, and it is agreed that such Collateral is of a type customarily sold on such recognized markets. Sale of such livestock may be otherwise as permitted by low. It is expressly agreed also that it will not be necessary, after default and before the sole of any livestock Collateral, to collect said livestock or to have the same present of the place of sale. in the event the Secured Party institutes legal proceedings to regain possession of the Collateral, Debtor knarringly and voluntarily waives h; or her right to a hearing prior to losing possession of the Collateral by means of a court order, and agrees that the Secured Pony may obtoin on order for possession prior to hearing as provided in C.R.C.P. 1041d)(4). No waiver by the Secured Party or any default shall operate as o waiver of any other default or of the some default on a future occasion. The tekirg of fhis security agreement shall not waive or impair any other security the Secured Party may have or hereafter acquire for the payment of the Obligofians, nor shall the coking of any such additional security waive or impcir t1r :is security ogreement; but the Secured Party may resort to any security it may have in the order it may deem proper, and notwithstanding any Collateral Security, the Secured Party shell retain its rights of setoff egcinst the Debtor, All rights of the Secured Party hereunder shc1l inure to the benefit of the Secured Party's heirs, personal representatives, successors or assigns; and oil promises and dotes of the Debtor shall bind the Debtor's heirs, personal representatives, successors or assigns. if there be more than one Debtor, their liabilities hereunder shop be joint and several. S�euld any pi o°✓is on of this Security Agreement violate any federal, sate or Iota' law or ordinance, rnet provision shall be deemed amended to so comply w fh such Icr or crd ;nonce, and shall be construed in a manner so as to comply. COLORADO UCC -1 FINANCING STATEMENT (See instructions on back) Standard Form Effective May 1, 1998 Total Fee = $16 11111111111111111111111111111 IN 111111 IN 289450 06/07/1999 03:38P UCC100 Chris C. Munoz 1 of 1 R 16.00 D 0.00 Pueblo Cty Clk & Rec. 1ST DEBTOR Name (Last, First): COUNTRYV, IDE TELECOT- 1 11V.UNICATIONS, SSN /FED Tax ID: fV-1—'06066 Check One: Street: 730 CITADEL DRIVE ® Business City, State, Zip: COLORADO SPRINGS, CO ❑ Individual 80907 2ND DEBTOR (Put additional Debtors on attachment) Name (Last, First): SSN /FED Tax ID: Check One: Street: ❑ Business City, State, Zip: ❑ Individual 1ST SECURED PARTY (Put additional Secured Parties on attachment) Name (Lost, First): PUEBLO, A MUNICIPAL CORPORATION Street: 1 CITY HALL PLACE City, State, Zip: PUEBLO, CO 81003 ASSIGNED PARTY (Put additional Assigned Party on attachment) Name (fast, First): Street: City, State, Zip: LLC Above Space For Filing Officer Use Only CHECK ONLY ONE (If no box is checked, it will be filed in UCC only) XFile in UCC ONLY ❑ This statement is to be recorded in the real estate records ONLY ❑ This statement is to be filed in UCC AND recorded in real estate records. (Requires an additional recording fee) ❑ The debtor is a transmitting utility. FOR UCC FILINGS (Fill in collateral codes from UCC Codes) 40 RETURN COPY TO Name: THOMAS E. JAGGER Street: 127 THATCHER BUILDING City, State, Zip: PUEBLO, CO 81003 Name of the Record Owner of the real property containing the collateral is: n / a (See instruction 13) FOR AGRICULTURAL LIEN NOTIFICATION Check if this filing is intended as EFS notification ❑ Enter EFS collateral code, County Code and crop years covered. If all years are covered, leave from and to dates blank. EFS Code County Code From To COMPLETE DESCRIPTION OF COLLATERAL (Use if collateral codes do not adequately describe collateral. Attach additional pages if necessary) COU RYW E TELECO NI ATIONS, LLC PUEBLO, A MUNICIPAL C ePORATION B B 1 Debtor Signature( (See Instruction 14)_ Secured Party Signature(s) Printed Na Printed Names) Title Title Contact Phone /FAX No. 602. Rev. 1 -98. FINANCING STATEMENT (UCC -1) Bradford Publishing, 1743 Wazee St., Denver, CO 80202 — (303) 292 -2500 — 8 -98 06/02/99 14:39 u4/28/99 11:13 0 4/2 8 /40 10:27 12 719 633 1518 11!20 COLO. SPGS , 11005 q!-j V V J W aa2 +Px-a CVs3 034 ;? cory tl Vt ORIA i C?(I.KY 1 Y` T NTATR AR13;CluLS OF �01fiGA2�l'I�ATi�4 � _' ��. 'go C>O �r-R7ARY OF STATE COC11V"tRYWiDE 7E COMMOlYlCxI'T! )Iva, Lr. j 4 -28 - 19 99 c The undcrs $ a pcMA of eighteaa yMM of $ge or more, iaeroby a%tablislaes a liMited liability CMMPZMY under the name of CmmUyWjdn TelecomInUWcadoas, LLC eciapting and Ming in duplicate A "Acto sa ance orgrcation in accord with the provisioa3 of the Coiorada T.ir,,mited Liability Company 1- Th* name aftho ligulted lisbility company is CounLrjuAde TelecOmm>.mic=Irns, LLC (rho "C ompany ") . 2. Th® nmme and business addmss of the Compaary'a re&Wrcd agent for UWVivc of process is: Mvrs Shatz 730 Citadel Drive, Suite 206 Colorado SSpring% Co 8v9o9 3. Management of t60 Company is Vened in managers. The member oaf rasnalgors O the C om pany sleall be detcrm.irwd as providod in the operating 34MMant for the Company (the " Operating Agteairant" )- The na1'nL and business addr M of the b9dal managers are: PIM IelecorRaRUAlcetians, Inc. 423 Calu mbza Sian; Suite 18 -A Carttbridge, MA 02141 Oliver Skt= 730 Citadel Drive, Suite 206 Colorado springs, CO 80909 Susan A. pappalardo 296 North $hmer, Unit IB Boston, MA 42113 4. Upon the death, rotiro Tnig=tion, expulsion, ba>q or dis9aiutivu of a member, or the o=wTenca of any other evcat which terminarts the =iltiuued mambomhip of a rnaM in The Company, Ilia r0Mai"ing members may agra a to eotirinuc rJ7c businoss of the Company- 5- The L=e and gddm3s of the organiser is: Oliver shag 730 Czt&1 Drive, Suite 206 Colorado Springs, CO 8 0909 6. $xmplc To the =dent 3eotion 7.80- 1071(2) of the Act expressly provid>g otbierwise, The Operating Ageement shall goveM the rights, duties, limitations, qualifications and relations among rho mar,ikgerg, The members. The membere ztssignee$ Wd Transferees, and the Company. Executed this o V., 1999, 071M JUN -11 °1$99 16:42 617 621 9525 P.02i14 PTM TELECOMMUNICATIONS LEASE THIS LEASE is made the ,,,1Lday of rune, 1999, between LOCKHEtD .TIN CORPORATION ("Landlord ") and PTV TELECOMMUNICATIONS, and COUNTRYWIDE TELECOMMUNICATIONS, LLC. (cumulatively n as "Tenant"). RECITALS WHEREAS the Premises, comprised of approximately 26,962 rentable are feet (Exhibit A), is located within. the Building commonly known as #1 liam White comprised of approximately 183,519 rentable square feet. #1 liam White is currently part of a two building campus totaling 323,850 rentable are feet and is located at #1 William White Blvd, Pueblo Colorado (ka om as "PropeatY') and more particularly shown on Exhibit B to this Lease. aur+d leases the Premises to Tenant and Tenant leases the Premises from idlord according to this Lease ACCORDINGLY, Landlord and Tenant agree: .0 Premises. Lease Premises, commonly known as #1 William White, is comprised of my -six Thousand Nine Hundred Sixty -two (26,962) rentable square foct and is ted at #1 William White Blvd., Pueblo, Colorado (Exhibit A). For the ►uses of pro rata calculatio the Lease Premises comprise 15% of the dung and 8% of the Property_ Term_ Commencement Date, Tho Term will begin on August 1, 1999 and and on 31, 2004 or upon occupancy of the Premises and continuing for a period of r (60) months, whichever date is earlier ("Commencement Date "). ftftl s-e7 Dew Is of pagan Fax Note To o r rit Faze From �7 phone JUN -11 -1999 16 :42 617 621 9525 P. 03/14 2.2 T erformance of Tenant Improvements. Tenant has the right to enter the Pren "ses begin to Tenant's improvements and construction on the Parkin Lot Pxpi nsion beginning upon the execution of this lease. All terms of the tease will pply except for Sections 4.0 and 5.0 3.0 3.1 "on to Extend. Landlord hereby grants to Tenant an option (the "Op on ") to extend the initial Lease Tenn ( "Initial Term") with respect to the Building for one (1) additional period of five (5) years (an "Option Term ") upon and object to the term and conditions set forth in this Lease. The Option shall be ex e ised, if at all, by Tenant's delivery of a non - binding verbal notice of exercise to L dlord not latex than eighteen (1$) months prior to the expiration date of the Zniti Term and a binding written notice of exercise to Landlord not later than twelve (12) months prior to the expiration date of the Initial Term, with respect to tha "on Term„ Rent, during the Option Term, shall be at a rate of $7.25 per square foot plus and an annual increase of 4.5 %. If an event of default b:y Tenant existi at the time Tenant exercises the Option, Tenant's exercise of the Option shall be of no force and effect and Tenant shall have no rights hereunder to extend the ease Term. 3.2 first Right of Expansion if Landlord receives a bona fide offer for the lease of al or any portion of the (the "expansion space ") of the remaining space within the S coed Floor of the Building (approximately 42,688 square feet as showh on Exhi it C) not then leased by Tenant, Landlord will give Tenant the right cif first refus I to lease the expansion space. The Tenant will then have fifteen (15) days from the delivery of such notice, to accept or reject the expansion space. The rent for the expansion space will be leased at the same rate as Tenant is then paying for like type space (ex_ Office space, warehouse space). The expansion space will be lease I with 3/1000 parking spaces. Tenant agrees to execute amendments to reflect additions to the Premises resulting from the exercise of the right of refusal to lez se. Tenant's lease of any expansion space pursuant to this right of first refus 1 will be on all the terms and conditions set forth in this lease except as to parking, free rent, and pro rata share. 4.0 - I Rent. 4.1 rent t Payment. Tenant will pay Twelve Thousand Nine Hundred nDollars /29 ($12,919.29) in advance of the first day of each month as base .ent") and the Additional Rent mentioned in Section 5.0. Z JUN --11 -1999 16:43 617 621 9525 P.04/14 If 0 end be a in s Cale beh writ Uni Term commences on a day other than the first day of a calendar monflx or on a day other than the last day of the calendar month, then monthly rent will propriately prorated by Landlord based on the actual number of calendar days , .h month. If the Term commences on a day other than the first day of a dar month, then the prorated monthly rent for such month will be paid on or 'e the first day of the Term. Monthly rent will be paid to Landlord, without ,n notice or demand, and without deduction or offset, in lawful money of the ,d States of America at Landlord's address, or to such other address as may from time to time designate in writing. 4.2 1 ,.ent Escalation. The Rent will increase by 4.5% on each anniversary date of the Lease. Therefore, Tenant will pay to Landlord the following Rent for each monh of the term of the Lease. M 1-12 $12,919.29 M 13 -24 $13,500.66 M 25 -36 $14 Nlo 37.48 $14,743.06 MO 49 -60 $ 15,406.50. 5.0 Pperating Expenses. In addition to monthly rent, beginning on the commencement date Tenant will pay enant's share of the operating expenses paid, payable or incurred by Lan lord in each calendar year or partial calendar year during the term. 5.0 Qperatiug Expenses. As used in this Lease, the term "operating expenses"' (a) 11 reasonable costs of management, operation, and maintenance of the Buil ling and common area of the Property, including without limitation real and pers 1 property taxes and assessments; wages, salaries, and compensatiob of emp gees; consulting, accounting, Regal, janitorial in the common areas, maintenance, guard and other services; management fees and costs; reason3ble reserves for operating expenses; that part of office rent or rental value of sp4c;e in the PFOPerty used or furnished by Landlord to enhance, manage, operate, 4pd maim ain the Property; power, water, and other utilities; materials and supplies; main enance and repairs; insurance obtained with respect to the Property; deprc ciation on personal property and equipment, except as set forth in (c) below 3 JUN-11-19S9 16 .'43 61Y bdl Vt> 14 or w 'ch is or should be capitalized on the books of the Landlord; and any other cost , charges and expenses that under general acceptable accounting principles wo d be regarded as management, maintenance, and operating expenses; (b) he cost (amortized over such period as Landlord will reasonably determine) toge er with interest at the greater of the prime rate prevailing plus 2% or Lan ord's borrowing rate for such capital improvements plus 2% on the una mortized balance of any capital improvements that are made to the project by Landlord (i) for the purpose of reducing operating expenses, or (ii) after the Lease date and by requirement of any governmental law or regulation that was not app :* rements cable to the project at the time it was constructed and not as a result of special req for any Tenant's use of the Building. (c) �he operating expenses will not include: ( ) depreciation on the project; ) costs of alterations of space or other improvements made for tenants of the Property () finders fees and real estate brokers' commissions ( } ground lease payments, mortgage principal or interest; ( } capital items other than those referred to in clause (b)(2) ( ) costs of replacements of personal property and equipment for which depreciation costs are included as an operating expense; ( ) costs of excess additional services provided to any tenant in the Building that are directly billed to such tenants; ( ) the cost of repairs due to casualty or condemnation that are reimbursed by third parties; { ) any cost due to Landlord's breach of the Lease; 1 ( 0) any income, estate, inheritance, or other transfer tax and any excess profit., chise, or similar taxes on Landlord's business; ( 1) all costs, including legal'fees, relating to activities for the solicitation and ecution of leases of space in the Property; ( 2)any legal fees incurred by Landlord in enforcing its rights under other leases four premises in the Property; ( 3)tenant's janitorial costs for tenant's Premises and restroorns; and ( 4)tenant's dumpster expenses. 51 Taxes (a)Tcnant will reimburse Landlord upon demand for any sod ,x11 taxes pa le by Landlord, whether or not customary or within the contemplatiop of Landlord and Tenant: 4 .?UN -11 -1999 16!44 617 621 9525 H.bbi14 (1) upon or measured by rent, including without limitation, any gross revenue tax., excise tax, or value added tax levied by the federal government or any other governmental body with respect to the receipt of rent; and (2) upon this transaction or any document to which Tenant is a patty creating or transferring an interest or an estate in the Premises. (b) , renant will not be obligated to pay an inheritance tax, gift tax, transfer tax, fr chise tax, incorne tax (based upon net income), profit tax, or capital levy imoosed upon Landlord. (c) errant will pay promptly when due all personal property taxes on Tenant's onal property in the Premises and any other taxes payable by Tenant that if not PaiO might give rise to a lien on the Premises or Tenant's interest in the Premises. 5.3l Utilities (a) enant agrees to pay, during the term of this Lease, 100% of all charges, for sui uti. 'ties ( i ah ncluding without limitation water, electricity, sewage, gas, and any other uti - ty services) used by Tenant in connection with the operation of the Premises_ if, . y such services are not separately metered or billed to Tenant but rather are bill d to and paid by Landlord, Tenant will pay to Landlord its actual share of the cos of such services, as determined by Landlord. u b) Tenant agrees to pay during the term of this Lease its pro rated charges for sup: b bil ties ( including, without limitation water, electricity, sewage, gas, and any oth utility services) used in the common areas of the Building. (c) errant will install at its sole costs and expense telephone service to the Pr "ses. Tenant will pay the appropriate supplier for the telephone service billed dir t Y to Tenant. 5.4 dditional Rent. Amounts payable by Tenant according to this Section 5.0 nl be payable as Rent, without deduction or offset. If Tenant fails to pay any am is due according to the Section 5.0, Landlord will have all the rights and rerr edies available to it on account of Tenant's failure to pay Rent. Additional Rer t shall be paid monthly (according to Landlord's reasonable good faith es ti ate) with subsequent annual reconciliation, in accordance with the following (a) At the commencement of the Term and each subsequent anniversary date, JUN -11 -1599 16:44 517 621 9525 P.07/14 110rd shall give Tenant notice of its estimate of any Additional Rent due under ion 5.0 above for the ensuing calendar year. On or before the first day of each th during the ensuing calendar year, Tenant shall pay to Landlord 1 /12` of estimated Additional Rent, provided that if such notice is not given on the versary date, Tenant shall continue to pay on the basis of the prior year's nate until the month after such notice is given. If at any time or times it :ars to Landlord that the Additional Rent for the current calendar year will vary t its estimate by more than 5 %, Landlord may, by notice to Tenant, revise its hate for such year, and subsequent payments by Tenant for such year shall be :d upon such revised estimate. (b) Within 90 days after the close of each calendar year or as soon after such 90- day period as practicable, Landlord shall deliver to Tenant a statement of the actual AdJitional Rent for such calendar year. If on the basis of such statement Tenant ow s an amount that is less than the estimated payments for such calendar year previously made by Tenant, Landlord shall refund such excess to Tenant within 30 day after delivery of the statement If on the basis of such statement Tenant owes an am ount that is more than the estimated payments for such calendar year p: 'ously made by Tenant, Tenant shall pay the deficiency to Landlord within 30 s after delivery of the statement. 6.0 Security Deposit. Tenant has deposited Twenty - five Eight Hundred Thirty-eight Dollars/58 (S25,838.58) with Landlord as Security Deposit for Tenant's payment of rent and performance of its other obligations under this Lease and any renewals or ex nsions of this Lease. If Tenant defaults in its payment of rent or performance of is other obligations under this Lease, Landlord may use all or part of the Sm,urity Deposit for the payment of Rent or any other amount i default, or for the pa:3 ment of any other amount that Landlord may spend or become obligated to spend by reason of Tenant's default, or for the payment to Landlord of any other los or damage that Landlord may suffer by reason of Tenant's default. 11' Lai idlord so uses any portion of the Security Deposit, Tenant will restore the Seduriry Deposit to its original amount within five (5) days after written demand fro Landlord. The Security Deposit will not be a limitation on Landlord's damages or other rights under this Lease, or a payment of liquidated damages, or an vance payment of the Rent. Landlord may deliver the Security Deposit to a pu7 chaser of the Premises and be discharged from further liability with xes�sect to it. 6 JUN -11 -1999 1G;45 7.0 617 621 9525 f . UH/14 The Premises will be used for business offices and for no other purposes. 7me Pr 'ses will be used in a careful, safe and proper manner. The Premises will not be red for any activity or in any namer that would tend to lower the character of the uilding or Property. Tenant will not use or occupy or permit the Premises to be ed or occupied for any purpose or in any manner prohibited by the laiws of the Uni ed States, or the State of Colorado, or the ordinances of the City of Pueblo. T t will not commit waste nor suffer or permit waste to be conunitted in, on or about the Premises, the Building or the Property. Tenant will conduct its business and control its employees, agents, invitees and visitors in such manner as not to create any nuisance, interfere with, annoy, or disturb any other twmt or oc(mpant of the Building or Property or Landlord in its operation of the Building or .Pro►perty. Ten t will not do anything that is prohibited by the standard form of extewded cov4 rage fire policy, or that will increase the existing rate of such insurance or oth �se affect any other insurance related to the Building or Pr operty or cause a can ' on in Landlord's insurance. 8.0 (Tenant Alternations 8.1 enteral. During the Term, 'tenant will not make or allow to be made any alt ation, additions, or improvements to or of the Premises, the Building or the Pr erty, or attach any fixtures or equipment to the Premises or Building, wtaut first obtaining Landlord's written consent. All such alterations, additions, and ements consented to by Landlord that are required to be made as a result of the tore of Tenant's use of the Premises: (a) ill be performed by contractors approved by Landlord and subject to conditions specified by Landlord, which will not be unreasonably withheld. (b)T mant will be required to provide landlord, at its sole cost, a lien and com letion bond or payment and. performance bond in an amount equal to 125% the stimated cost of any contemplated alteration, addition or improvement to insure Landlord against any liability for mechanic's or materialmen's liens and to ins completion of such work. (e) Tenant will be required to provide Landlord with a copy of "as built" db-awings of thie alteration, addition or improvement within 30 days of completion. SUN -11 -19$9 16:45 b1'( b2l r. bye 14 (d) 11 'work with respect to any alterations, additions or improvements will be don in a good and workn*nlike manner, and diligently prosecuted to completion to a and that the Building will be a complete unit, except during the period ne sarily required for such work. 8.2 r C ompliance With Laws by Tenant. Prior to coy =cncing any alteration, add lion or improvement Tenant must acquire all necessary building permits. At? alt e - ations, additions or improvements made by Tenant shalt be made at Tenant's solc cost and expense, in accordance with this Lease and all applicable law -s, codes. or ' ances and all governmental regulations and all requirements of any insurer pr ding coverage for the Premises. 8.3 Alterations Become Part of Premises. All alterations, additions or im vernents made to the Premises by Tarot (except movable hu niWre, equipment and trade fixtures) shall become part of the Premises and Landiord's . prcq erty immediately upon installation thereof unless Landlord requixes the removal thereof prior to the termination of this Leese. Tenant shall have do obli ation to remove the alterations, additions or improvements from- the Prr raises unle ss requested by Landlord, is which event Tenant shall remove such items and rep .r, any damage caused thereby at Tenant's sole cost and expense. No 'thstanding the foregoing, Tenant shall be pemxitted to remove from the i�t es any such alterations, additions and improvement if, at the tune of they ik intion, Landlord and Tenant have mutually agreed that Tenant rrlay xezna;, thme. Any alteration, addition or improvement that Tenant is required ear peied to remove, together with any movable; fumiture, equipment ind trade; fix s, shall be removed at Tenant's expense prior to the termination of this Le and Tenant shall promptly repair any damage to the Premises cause by such real. If Tenant fails to remove any alteration, addition or improverty that Te is required to remove or fails to repair damage caused by such removal, Lan (lord shall give written nonce thereof to Tenant and if Tenant shall not have removed such addition, alteration or improvement within ten (10) days following Ten is 7receipt',of such notice, Landlord shall have the right to undertake such actic n for Tenant and to collect with ten (10) days after written demand from Lain lord all reasonable costs incurred in such removal or repair, together with Deft ult Interest (defined in Paragraph 24.6) from the date ten (10) days aftur Lan ord's request. s JUN-11-149 1646 61'7 621 y5d5 1-'.10/14 all M E Liens ,nt shall keep the Premises flee and clear of all liens incurred by or resulting acts of Tenant or any subtenant or any contractor or subcontractor. If airy lien is filed, Tenant shall, within ten (10) days following Tenant's receipt of ;e of such lien, at its expense, cause the lien to be fully discharged by pa ying obligation secured thereby or by obtaining and recording a surety bond 4 a 150% of the amount of the claim plus estimated Costs of interest, and hi rdance with applicable law. Tenant is not authorized to act for or on behalf of llord for the purpose of constricting any improvements to the Premises, and ►er Landlord nor Landlord's interest in the Premises shall be subject to sriy rations incurred by Tenant. If any lien is filed or any action commenced .ting the title to the Premises Tenant shall upon receiving such notice ediately notify the Landlord. Tenant shall indemnify Landlord against and harmless Landlord. the Premises, the Building and the Property free, clear and iless of and from all mechanics liens and claims of liens, and all other lities, liens, claims and demands on account of such work by or on behalf of 10. Parking T t will be entitled to use 120 the parking spaces in the #1 William White pax g lot identified. on Exhibit D. The parking spaces will be unassigned, anon - res ed, and non - designated. Except that Tenant has the right to desigta6; :Four (4) king spaces as reserved. Such reservation will be at Tenant's sole casts and wil be coordinated with Landlord's on site agent. 11.0 Assignment/Subletting. Tenant will not assign this sublease in whole or in p and will not sub - sublease the Sublease Premises in whole ox in part wiTbout the prior written consent of Landlord, which Landlord agrees will not be asonablywithheld. However, Landlord and Tenant aclmowledge that it will be easonable for Landlord to withhold its consent in the following instances: (i) the sublease does not contain a market security deposit provision; (ii) banldng, financial, or other credit information and references about the proposed assignee or subtenant sufficient to enable Landlord to determine the financial responsibility and character of the proposed assignee or subtenant have not been provided to Landlord; 9 JUN -11 -199 16:47 617 621 9525 P.11i14 (iii) and in Landlord's reasonable judgment, the financial worth of the proposed assignee or subtenant does not meet the credit standards applied by Landlord for other Tenants under subleases for the Premises. rd's consent to an assignment or sublease will not release Tenant frotn the mt and performance of its obligations under this Lease, but rather TetYant grid ee or subtenant will be jointly and severally liable for such payment and In a case of an assignment or subletting, 100% of any sum or economic con 'deration received by Tenant as a result of such subletting will be paid. to Lanctlord after first deducting the rental due under this lease, prorated to tvflect only rental allocable to the sublet portion of the Promises, and the cost of city real esta commissions incurred in connection with such subletting, amortized over, the t of the sublease. Upon Landlord's request, Tenant will assign to Landlord al). amo ants to be paid to Tenant by any such subtenant or assignee and will dir - ect suck subtenant or assignee to pay the same directly to Landlord. 12.01 Landlord Services. 12. 1 Landlord's Repair and Maintenance. Landlord will maintain, repair and restore the common areas of the project, including lobbies, stairs, elevators, co dons, and restrooms, the windows in the Building, the mechanical, plumbing and eblectnical equipment serving the Building, and the structure of the Building iri real nably good order and condition. Yrd will repair and close the cable opening that currently exists between 1 and Floor 2 of the Building which currently resides within the Premises. 12.2 Landlord's Other Services. (a) Landlord will furnish the premises with those services customarily provided in comparable office buildings in the vicinity of the Property, including without limitation (1) electricity for lighting and the op tin of low wattage office machines during business hours although Lani Lord will not be obligated to furnish more power to the Premises than is pro monally allocated to the Premises under the Building design; (2) heat and air con 'tioning reasonably required for the comfortable occupation of the Premises dun ig business how's; (3) access and elevator service; (4) lighting replacement in the arking lot and common areas: (5) restroom supplies; (6) window washing with real mable frequency, as determined by Landlord; and (7) daily cleaning senwe of the common areas during weekdays. 10 JUN -11 -19 9 16!4? 617 621 9525 F.,c-JI14 12.31 Business Hours. The term business hours means 7:00 a.m. to 6:00 p.m. on Mor day through Friday, except holidays, and 5:00 a.m. to 12:00 noon on Satu rdaya, except: holidays. The term holidays means New Year's Day, Mer wrial Day, Independence Day, Labor bay, Thanksgiving Day, and Christmas Day Notwithstanding the foregoing, Landlord acknowledges that Tenant will be occv pying the Premises 6:00 a.m. to 9:00 p.m. Monday through Sunday, Tenant will have up to 10 employees in the Premises 11 :00 a.m. to 6:00 a.m. Monday throi xgh Sunday and Tenant will work all Holidays. t will be responsible for the costs of all additional operating expenses as a of Tenant's use of the Premises. Additional operating expenses may e, but are not limited to, after hour building engineer costs, utilities iti the on area, after air conditioning and heating costs and repairs. Tem nt acknowledges that the front lobby entrance of the Building will be locked at 6: 0 p.m. Monday through Friday, at 12:00 noon on Saturdays, and will be lock d during holidays. When the lobby door is locked, Tenant will entex pnd exit hrough the East Entrance door. Special arrangements for lobby access d . g holidays can be arranged with Landlord's on site building engineer. Te t acknowledges that Tenant is solely responsible for the security of Tenant's4 emp ogees, including operation after hours and parking lot security. Tenant' ac owledges that they may need to employ special after hour security measures. 1 2-4 Limitation on Liability_ Landlord will not be in default under this 1..ease or be li ble to Tenant or any other person for direct of consequential damage, or oth se, for any failure to supply any heat, air eonditioning, elevator, cleaning, ligh ng, security, for surges or interruptions of electricity; or for other services Lanc lord has agreed to supply during any period when Landlord uses reason, dilig mee to supply such services. Landlord reserves the right to temporatily discontinue such services at such times as may be necessary by reason of accident; rep rs, altex`ations or improvements, strikes; lockouts; riots; acts of God; gov mental preemption; any rule, order or regulation of any governmental agen ; conditions of supply and demand that make any product unavailable; Lan ord's compliance with any mandatory governmental energy conservation or env' orin at protection program; or any other happening beyond the convol of JUN-11-19119 16:48 13. p Tenant's Care of Premises. 617 bbl r.iJ/14 13. Maintenance. Tenant will maintain the Premises in good condition, reaj ionable wear and tear excepted. Tenant will immediately advise Landlord of any damage to the Premises or the Building. All damage or injury to the Pre 'ses, the Building or the Property that is caused by Tenant, its agents, em loyees, or invitees ruay be repaired, restored, or replaced by Landlord, at the e e of Tenant. Such expense will be collectible as additional rent and will be pai by Tenant within ten (10) days after delivery of statement for such expense. All reasonable expenses of Landlord's may be recovered by Landlord, 134 Janitorial and Waste Disposal. Tenant will provide, at Tenant's sole costs an expense, all janitorial service within Tenant's Premises including Tenant's res ooms. Tenant will also be responsible for waste disposal for the Premises and T is restroorns, including dumpster use, delivery, emptying and pick -tip. Insurance. 144 Landlord's Insurance. At all times during the term, Landlord will carry (a) ire and extended coverage insurance covering the Property, its equipment, co on furnishings, nishings, and leasehold improvements in the Premises to the ex nt Landlord paid for such improvements CC (c Y injury and property damage insurance; and other insurance as Landlord reasonably determines from time to tinie. insurance coverages and amounts in this Paragraph 14.1 will be reasonably Mined by Landlord, based on coverages carried by prudent owners of parable buildings in the vicinity of the Property. Tenant's Insurance. At all times during the term Tenant will carry and ain, at Tenant's expense, the following insurance, in the amounts specified or such other amounts as Landlord may from time to time reasonably ►t, with insurance companies and on forms satisfactory to Landlord: (a) Bodily ixl ury and property damage liability insurance, with a combined single )CCUrrence limit on not less than 55,000,000. All such insurance will be 12 JUN -11 -1$99 16:48 617 621 9525 P,14i14 nt to coverage offered by a cou=ercial general liability form, including limitation personal injury and contractual liability coverage for the once by Tenant of the indemnity agreements in Paragraph 16.3 of the (b)'Worker's con4msation insurance insuring against and satisfying tenant's ob 'gations and liabilities under the worker's compensation laws of the state in w 'ch the Premises are located, including employcr's liability insurance in the li its required by the laws of the state in which the Property is located (c) f Tenant operates owned, hired or non -owned vehicles on the Property, co prehensive automobile liability at a limit of liability not less than 5500,000 co bined bodily injury and property damage. 14.0 Notice of Insurance. All insurance provided for in this Article sham be eff d under valid and enforceable policies issued by insurance companies au orized to do business in Colorado and reasonably acceptable to Landlord. Te t shall cause the insurance companies issuing such to agree to notify L dlord in writing of any cancellation, alteration or non - renewal of said insurance at 1 ast thirty (30) days prior thereto. Tenant shall deliver to Landlord, on the C encement Date and on each anniversary of the Commencement Date, T cerificates evidencing the insurance coverage required herein- All public liability an property damage policies shall contain a provision that Landlord, although n ed as an additional insured, shall nonetheless be entitled to recovery under said po cies for any loss occasioned to Landlord, its servants, agents and employees by re on of Tenant's active negligence. I X to n for Waiver of Subrogation; Relcase. Notwithstanding any other provisions in this M,, but provided Tenant caries the insurance it is required to carry under tgraph 14.2 above, Tenant and Landlord each waive all rights of recovej3 nst the other, and against the directors, partners, officers, employees, agonts representative of the other, for loss of, or damage to, the property of the ving party, or the property of others under its control. Each party shall, upor► dning the insurance policies required hereunder, give notice to the insurapm ier or carriers that the foregoing waiver of subrogation is contained in this, se and shall obtain, at their own expense, an appropriate wavier of subrogation Drsement from the insurer. If the Premises or Tenant's personal property alle ►aged or destroyed by fire or any other cause against which Tenant is required iaintain insurance pursuant to this Lease, Landlord shall not be liable to Tenant any such damage or destruetion unless caused by the intentional misconduct of !3 TOTAL P.14 ...In JUN -11 - 1909 17 :06 b1'( b2i VDeD r. ic cup, rd. Tenant shall have no claim to or interest in any portion of the proceeds insurance maintained by Landlord, 3 0 Laws and Hazardous Substances 1.;.1 Compliance with Laws. Tenant, at its expense, shall cause the;Premises to CC mply with all existing and future rules, regulations, ordinances, orders, codes, la vs and requirements of all municipal, county, state, federal and other applicable g vemmenW authorities (collectively, "Laws ") pertaining to any alterations by T rant or a subtenant or Tenant's or a subtenaw's particular use of the Premises, in luding without limitation (i) the installation of fire extinguishers, alarm systems, sp rinlder systems or automatic dry chemical extinguishing systems, (ii) removal of as estos, or (iii) requiring any improvements to the Premises. Landlord shall, at L dlord's sole cost and expense, cause the Premises to comply with all Laws not re ating solely to any alterations by Tenant or a subtenant or Tenant's or a s btenant's particular use of the Premises first becoming effective after the C rmencement Date, but Tenant shall reimburse Landlord for a share of its cost tl reof, based on the length of time Tenant continues to occupy the Premises and b nefits from such improvement as compared to the useful life of such 15.2 Hazardous Substances. Tenant shall not use, produce, store, release, dispose ot handle in or about the Premises or transfer to of from the Premises (or permit a7 y other party to do such acts) any Hazardous Substances except in compliance w all applicable Environmental Laws. Tenant shall not construct or use any provements or equipment or engage in any act on or about the Premises (or 't any other party to do such acts) that would require the procurement of any i se or pen nit pursuant to any Environmental Law unless Tenant shall have first procured any such license or permit. Tenant shall immediately notify Landlord of (i ) the receipt of notice by Tenant of the existence of any Hazardous Substances on about the Premises that may be in violation of any Environmental Law (regardless of whether Tenant is responsible for the existence of such Hazardous Substance), (ii) Tenant's receipt of written notice of any proceeding or investigation by any federal, state or local governmental authority regarding the p Bence of any Hazardous Substance on the Premises or the migration thereof to o from any other property, (iii) all claims made or threatened by any third party attainst Tenant relating to any loss or injury resulting from any Hazardous S bstance, or (iv) Tenant's notification to the National Response Center of any i lease of a reportable quantity of a Hazardous Substance in or about the Premises. 14 OT ICI eGrze6sTs9 SMIl OdOdd DWI ST :SZ 6661- TT -Nnr INWIT JUN -11 -1199 16:51 617 621 9525 P.02i05 "Envirwraental Laws" shall mean any federal, state or local law, statue, qb linance, rule, regulation, guideline, permit, license, order, requirement, a ent, or approval pertaining to Hazardous Substances and the protection of It th, industrial hygiene, natural resources or the environment, including without lir dtation, the federal Comprehensive Environmental Response, Compensation, an i Liability Act, as amended. For purposes of this Article, "Hazardous St bstance" means any matter giving rise to liability under the Resource Co servation and Recovery Act ( "RCRA "), 42 U.S.C. Section 6901 ct seq., the C mprehensive Environmental Response, Compensation and Liability Act (" ERCLA "), 42 U.S.C. Sections 9601 et seq. (including the so- called perfund" amendments thereto), the Hazardous Materials Transportation Act, 49 U S.C. Section 1801, et seq. or the Solid Waste Disposal Act, 42 U.S.C. Section 6S 0 1, et seq., including any regulations promulgated thereunder, as any of the foregoing may be amended, all Colorado environmental protection laws, any other applicable, federal, state or local statute, law, ordinance, rule or regulation governing or pertaining to any hazardous substances, hazardous wastes, chemicals or other materials, including without limitation asbestos, polychlorinated b radon, petroleum and any derivative thereof or any common law theory b ed on nuisance or strict liability. dlord shall not use, produce, store, release, disppse or handle in or about the Wises or transfer to or from the Premises (or permit any other party to do such ) any Hazardous Substances except in compliance with all applicable ironmental Laws, 1 10.0 Waiver And Indemnity .1 Assumption and Waiver. Except to the extent caused by the active gligence or intentional misconduct of Landlord or its agents or employees, or by odlord's failure to perform its obligations hereunder, Tenant assumes all risk of, A waives all claims against Landlord arising from damage, loss or theft of )perry or injury to persons in or upon the Premises from any cause. The vgoing waiver includes, without limitation, the following risks: (i) any defect in failure of plumbing, heating or air conditioning equipment, electric wiring, .ter pipes, stairs, railings or walks; (ii) the bursting, leaking or running of any plc, washstand, water closet, main or any pipe or tank in, upon or about the ;miles; (iii) the backup of any sewer pipe or downspout; (iv) the escape of steam hot water; (v) water, snow or ice; (vi) the falling of any plaster or stucco; j) broken glass; (viii) any act or omission of other adjoining property owner 15 S; . ,J I 86t7N4GTE9 5311&3408d DWI 9T:ST 6661- TT-Nnf JUN -11 -1199 17 :07 617 621 9525 N.04/Ub Landlord); and (ix) any, unauthorized or. criminal entry, of ; third parties the Premises. 10.2 Notice of Claims. Tenant shall give immediate notice to Landlord (i) in case of fire or accidents in the Premises or any breakdown or malftinction of any se 'ty measures, and (ii) any claim, action or proceeding instituted or threatened against Landlord. I .3 Tenant's IndemrAty. Tenant shall indemnify Landlord, its successors, as igns, subsidiaries, directors, officers, agents, employees and Landlord's p manager, if any, against all claims, costs, attorneys' fees, darttages, expenses, liabilities and losses arising out of or -in connection with any of the (a) Tenant's, its subtenants' and its and their agents' and traployees' use of the Premises or the conduct of Tenant's or a subtenant's bt Lsiness thereon. (b) Any activity, work or occurrence performed, permitted or suffered by Tenant or a subtenant in, on or about the premises. (c) Tenant's failure to perform substantially and properly all of 't nant's obligations under this Lease. (d) The active negligence or intentional misconduct of Tenant, any its subtenants, its agents, contractors, servants, employees or licensees. (e) 'Tenant's failure to comply with or violation of any laws, tes, codes, licensing requirements, ordinances, orders and rules and cations of any public authority applicable to Tenant's specific use of the (f) A violation by Tenant of the provisions of Section 15.0. (g) A violation by Tenant of the Lease. 1 any claim is made or action is brought against Landlord as a result of any d tivities, or omissions listed above, Tenant, upon notice from Landlord, shall d lgently defend the same at Tenant's expanse through counsel reasonably s iasfkctory to Landlord. Tenant's obligation to indemnify Landlord, its successors, a tigns, subsidiaries, directors, officers, agents, employees and Landlord's 16 9i _d 86VES1,SIS9 SSU63 06d Z)W 91 :SS 6661- TT-Nnr JUN- 11 - ?99 17 09 617 621 9525 P.O5 /06 manager, if any pursuant to this Paragraph 16.3 shall survive the n or earlier termination of this Lease. to 1 7.0 Condemnation 1 1 .1 Total Condemnation. If the Building or Property is taken under power of eminent domain or conveyed by Landlord under the threat thereof {a ondemnatioW ), this Lease shall terminate as to such Building as of the date of Condemnation. Landlord shall g ive written notice to Tenant promptly after X, dlord is made aware of any threatened or pending condemnation proceedings relating to any Building or any portion of the Property. All rent and other obligations shall be paid and performed up to the date of any such Condemnation, a d Tenant shall have no claim against Landlord for the value of any un- expired fin. of this Lease. 17.2 partial Condemnation of the Premises. If a portion of the, Building or ses is taken by a Condemnation and such partial taking renders. the Premises �1 suitable for Tenant's business, as reasonably determined by Tenant and ndlord, this Lease shall terminate as of the date of Condemnation with respect to si ch Premises and Tenant shall have no claim against Landlord for the value of El un- expired term of this Lease. If the partial taking by Condemnation does not re ►der the Premises unsuitable for Tenant's, business, but if there are not sufficient FU ids therefor from the Condemnation award, in the exercise of reasonable di igenee, to restore the Premises to a condition comparable to its condition prior to th Condemnation less the portion lost in the Condemnation then this Lease shall to nate unless one party elects to contribute the shortfall. In such event, Base nt shall be equitably reduced based upon the portion of the Premises taken by s eh Condemnation. Tenant shall not be obligated to commence such restoration a til it receives the Condemnation award. .3 Condemnation Award. In the event of a Condemnation, whether whole or rtial, Tenant waives any right to any part of the award, as damages or otherwise, d Landlord shall receive the full amount of such award. In the event of a partial ridemnation, and if this Lease is not terminated as set forth above, Landlord shall ►ke immediately available to Tenant the condemnation award for purposes of re- ilding the Premises. Notwithstanding the foregoing, Tenant shall have the right recover from the condemning authority, but not from Landlord, such rnpens as may be separately awarded to or recoverable by Tenant on :ount of the loss of Tenant's leasehold estate, any damage to . Tenant's business reason of the Condemnation (except for Ioss of the leasehold estate) and for any 17 LL'd &WSLS S3I 163JONd Owl LT:ST 6661 1 I -Nnr JUN -11 -19 16:51 617 621 9525 P.03/e5 dariage or to cancel. this Lease as of the date of the casualty by written notice to 'r t on or before the notice date. Landlord will not be responsible for repairing or replacing my of Tenant's iml rovements, fixtures, or personal property, unless such improvements, fixtures or 1 iersonal property were originally paid for by Landlord. If y damage by fire or other casualty is the result of willful conduct or negligence or failure to act of Tenant, its agents, contractors, employees, or invitees, monthly rent will not be abated. Tenant will have no right to terminate thi Lease on account of any damage to the Premises, the Building or the Property, ex ept as set forth in this Lease. 19-P Entry By Landlord L. dlord, its agents, employees, and contractors may enter the Prerruses at any ti a in response to an emergency and at reasonable hours to: (a) hlspect the Premises; 0))E chibit the premises to prospective purchasers, lenders or tenants; (c:) Determine whether Tenant is complying with all its obligations in this Lease; (d) Post written notices of non - responsibility or similar notices; or (e) Make repairs required of Landlord under the terms of this Lease or make repairs to any adjoining space or utility services ox make repairs, alterations, or improvements to any other portion of the Building. I,aadlord will at all times have and retain a key with which to unlock all of the doors in, on and about the Premises. Landlord will have the right to use any and all means Landlord may deem proper to open doors in and to the Premises in an ergency in order to obtain entry to the Prernises. Any entry to the Premises by Landlord in accordance with Paragraph 19 will not be construed or deemed to be a fo ncible or unlawful entry into or a detainer of the Premises or an eviction, actual or constructive, of Tenant from the Premises or any portion of the Premises, nor wi 1 any such entry entitle Tenant to damages or an abatement of monthly Tent, ad 'tional rent, or other charges that this lease requires Tenant to pay. 19 $;t -Al RGt88651S9 s3Ila3dodd aW7 ST:SI 6662- !I-Nnr ■ JUN -11 -19x9 16:52 20.p Effect of Sale 617 621 9525 P,U4/d5 A ale, conveyance, or assignment of the Building or the Property will operate to rob ase Landlord from liability fronn' and after the effective - date of such sale, cor veyanee, or assignment upon all of the covenants, terms, and conditions of this le e, express or implied, except those liabilities that arose prior to ' such effective dam, and, after the effective date of such sale, conveyance, or askpmennt, Tenant Nvill look solely to Landlord's successor in interest in and to this Lease. This Lease w . 111 not be affected by any such sale, conveyance, or assignment, and Tenant will Ott rn to Landlord's successor in interest to this Lease so long as such successor in int est assumes Landlord's obligations under the Lease from and after such e ctive date. 21 A Subordination 21 l General. This tease and Tenant's rights under this Lease are subject and subordinate to any ground or underlying lease, mortgage, indenture, deed of trust, or other lien encumbrance, together with any renewals, extensions, modifications, co olidations, and replacements of such superior lien, now or after the date a cting or placed, charged, or enforced against the land, the Building, or all or an portion of the Property or any interest of Landlord in them or Landlord's in est in this Lease and the leasehold estate created by this least. This provision wi 1 be self- operative and no further instrument of subordination will be required in on to effect it. NorMthstanding the foregoing, Tenant will execute, tic owledge, and deliver to Landlord within twenty (20) days after written &- and by Landlord, such documents as may be reasonably requested by Landlord or the holder of any superior lien to confirm or effect any such subordination, 21.2 Attornment and Nondistrubance. Tenant agrees that in the event that any holder of a superior lien succeeds to Landlord's interest in the Premises, Tenant l pay to such holder all rents subsequently payable under this Lease. Further, 't ant agrees that in the event of the enforcement by the holder of a superior lien of the remedies provided for by law or by such superior lien, tenant will, upon re 'nest of any person or party succeeding to the interest of Landlord as a result of such enforcement, automatically become the Tenant of and attom to such successor in interest without change in the terms of provisions of this Lease. Such 4 cessor in interest will not be bound by: Any payment of rent for more than one month in advance, except prepayments in the nature of security for the performance by Tenant of its obligations under the Lease; , :IV • " I ar-b ?w_CtC9 20 53 t 1.a3d06cf Dw7 8t ! S T 666 C -r T-Nnt JUN -11 - 1C (b) (c) (d) 16:52 617 621 9525 P.05i05 ry amendment or modification of this Lease made without the written consent such successor in interest; claim against Landlord arising prior to the date on which such successor in r succeeded to Landlord's interest; or claim of offset of rent against the Landlord. U request by such successor in interest and without cost to Landlord or such su cessor in interest, Tenant will, within twenty (20) days after written demand, ex cute, acknowledge, and deliver an instrument or instruments confirming the at t rnment, so long as such instrument provides that such successor in interest will no disturb Tenant in its use of the Premises in accordance with this Lease. 2 210 Estoppel Certificate Ui on receipt of a written request from either party, the other party shall within fif een (15) days after receipt of such request, execute, acknowledge and deliver to Oj party requesting such statement a written statement (i) certifying that this Lease is umodified (or, if modified, stating the nature of such modification) and in full fbi c e and effect and the dates to which rent and other charges are paid in advance, (i i acknowledging that there are no then existing defaults or events which would, gi en the passage of time or the giving of notice or both, constitute events of default, (iii) setting forth such other matters as the party executing such certificate may desire, or acknowledging any other maters that the party requesting such st tement may reasonably request. In addition, upon receipt of a written request fr m Landlord, Tenant shall use commercially reasonable efforts to cause Tenant to execute, acknowledge and deliver to Landlord such written statement within fi ieen (15) days after receipt of such request. The statements to be made by either pi rty may be modified to reflect the true and correct state of the facts at the time of s ch statement. Any such statements may be relied upon by any prospective pi Lrchaser or encumbrancer of all or any portion of the Premises. Failure to deliver s ch statement within such 15 -day period shall entitle the party requesting such st tement to give a second notice to the other party, and failure to deliver such st itement within five (5) days after such second notice shall be conclusive against the party asked to produce such statement that the statetnents set forth therein are tr e and correct. al ca. ik�an�� '1W`1 6S :St 666t"tt - TOTAL P.05 JUN-11-19)9 16 =58 23,0 Default, Remedies 617 621 9525 P.0Ui11 2311 Defaults. The occurrence of, any one or more of the following events shall a material default and breach of this Lease by Tenant: (a) Tenant's failure to make any payment of rent or other sum due under this Le ise, as and when due, where such failure continues for a period of ten (10) days af# r written notice from Landlord that such is past due. (b; Tenant's failure to observe or perform any of Tenant's obligations under this Le isc where such failure continues fora period of thirty (30) days after written no 'ice from Landlord of such failure, unless such failure cannot reasonably be ca d within such 30 -day period, m which event Tenant shall not be in default of tlu Lease provided Tenant commences to cure such failure within said 30 -day p "od and thereafter diligently and continuously pursue completion thereof. (c) Any assignment of Tenant's interest in this Lease contrary to the provisions of Ls Lease. (d To the extent not prohibited by law, (i) the making by Tenant of any general as gnmern or general arrangement for the benefit of creditors; (ii) the filing by or ag dnst Tenant of a proceeding under state or federal insolvency and/or bankruptcy lav is (unless, in the case of a petition filed against Tenant, the same is dismissed wal . n thirty (30) days); (iii) the appointment of a trustee or receiver to take Do session of substantially all of Tenant's assets at the Premises or of Tenant's mt rest in this Lease, where possession is not restored to Tenant within thirty (30) da s; or (iv) the attachment, execution or other judicial seizure of substantially all of enant's assets at the Premises or of Tenant's interest in this Lease. 23 , Remedies. In the event of any such default or breach, Landlord shall be en 'tied to exercise the following rights and remedies at any time thereafter, with or without notice or demand: (a) To terminate this Lease effective immediately upon delivery of written notice to Tenant and Tenant shall immediately surrender possession of the Pr 'ses upon receipt of such notice. Upon any termination. Notwithstanding termination, Landlord shall have the right to recover from Tenant: ZZ - d 186b2&,SIS9 SBI.UI3 Odd OW-1 6I:SI 666ti-TI -Nnf JUN -11 -19§9 16 59 617 621 r'•0 ,3/11 (1) The worth at the time of award of the unpaid rents which h been earned at the time of termination; (2) The worth at the time of award of the amount by which rents which would have been earned after - termination until the time of award eeds the amount of such rental loss that Tenant proves could have been 3onably avoided; (3) The worth at the time of award (computed by discounting ;t the discount rate of the Federal Reserve Bank of San Francisco at the time of aw ard plus one percent) of the amount by which the rents for the balance of the Lea Term after the time of award exceed the amount of such rental loss that T�na proves could be reasonably avoided; (4) Any other amounts necessary to compensate Landlord for a 1 detriment proximately caused by the default by Tenant: or which in the ordinary c urse of events would likely result. The "worth at the time of award" of the amounts referred to in clauses (1) 1(2) above is computed by allowing interest at an annual rate equal to the ater of (i) ten percent (10 %), or (ii) five percent (5%) .plus the rate established the Federal Reserve Bank of Denver, as of the twenty -fifth (25th) day of the nth immediately preceding the default by Tenant, on advances to member banks ier Sections 13 and 13(a) of the Federal Reserve Act, as now in effect or - eafter from time to time amended, not to exceed the maximum rate allowable law. Continuance of Lease. Upon any default by Tenant and unless and until .dlord elects to terminate this Lease pursuant to Section 24.2(a) above, this se shall continue in effect after the default by Tenant and Landlord may )rce all its rights and remedies under this Lease, including without limitation, right to recover payment of rents as they become due. Neither efforts by Alord to mitigate damages caused by a default by Tenant nor the acceptance of gents shall constitute a waiver by Landlord of any of Landlord's rights or �edies, including the rights and remedies specified in Section 24.2(x) above. .3 Remedies Cumulative. No remedy or option of Landlord shall be considered elusive of any other remedy, but the same shall be cumulative and in addition to Amy other remedy or option given hereunder, or now or hereafter existing at law, equity or by statute, including, without limitation an action to recover amounts 23 -- - - -- [qS 4?!=WnNd OW oz :sT 666L TT -Nnf JUN- 11 - 15*39 16:513 617 621 9525 N.04111 hereunder. Landlord may exercise its rights and remedies at any time, iri any r, to any extent, and as often as Landlord deems advisable. 13 4 Landlord's Right to Act. If Tenant fails to timely perform any of its ol) igations under this Lease, L andlor d may.give written notice to Tenant of such i' ' ure, and in the event Tenant has not perfoamed such obligation within ten (10) da rs following such written notice (or commenced to perform such obligation if su h obligation reasonably takes more than ten (10) days to perform) shall have the ri t, without any passage of time or declaring Tenant in default, to perform such alp igation on Tenant's behalf and to charge to Tenant all reasonable costs and e) onses incurred in connection therewith. Tenant shall within ten (10) days pay su h amount upon presentment of a statement to Tenant. Such amount shall bear in est at the Default Interest rate from the date ten (10) days after its receipt of su h written statement. 23.5 Late Charges. Tenant hereby acknowledges that late payment by Tenant to L,4ndlord of Rent or Additional Resat will cause Landlord to incur costs not c0a ternplated by this Lease, the exact amount of whi will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting chargcs, and late charges which may be imposed on Landlord by the terms of any M rtgage or deed of trust covering the Premises. Accordingly, Tenant shall pay to L dlord, without the necessity of prior notice or demand, a late charge equal to ten percent ( 10 %) of any installment of Rent or Additional Rent which is. not received by Landlord within ten (10) days after the due date for such installment. e parties hereby agree that such late charge represents a fair and reasonable es 'mate of the costs Landlord will incur by reason of late payment by Tenant. In no event shall this provision for a late charge be deemed to grant to Tenant a grace pe -'od or extension of time within which to pay any installment of Rent or A. ditional Rent or prevent Landlord from exercising any right or remedy available to Landlord upon Tenant's failure to pay such installment of Rent or Additional R ent when due, including without lirnitation the right to terminate this Lease. In the event any installment of Rent or Additional Rent is not received by Landlord the thirtieth (30th) day after the due date for such installment, such installment sh l bear interest at the annual rate set forth in Section 23.6 below, commencing on the thirty -first (31 st) day after the due date for such installment and continuing ��6' such installment is paid in full. 23.6 Interest on Past -Due Obligations. Any payment due from Tenant to Landlord, ex , ept for Base Rent received by Landlord within thirty (30) days after the same is due, shall bear interest from the date due until paid, at an annual rate (the "Default Rate` } equal to the greater of. ten percent (10 %); or five percent (5 %) plus the rate 24 bF'e! I 86bz86SIS9 531IdBdc6d WW1 OZ 666L- IT -Nnz JUN - 11-1939 17:00 617 621 9525 P.05i11 Eblished by the Federal Reserve Bank of San Francisco, as of the twenty -fifth th) day of the month immediately preceding the due date, on advances to tuber banks under Sections 13 and 13(a) of the Federal Reserve ,Act, as now in -et or hereafter from time to time amended. In addition, Tenant shall pay all is and attorneys' fees incurred by Landlord in the collection of such amounts. .7 Attorneys' Fees. In any dispute between the party, the prevailing party shall entitled to recover from the other party immediately upon demand all ksonable costs and attorneys' fees, expert witness fees, costs of test and analysis, vel and accommodation expenses, deposition and trial transcript copies, court sts and other similar costs and fees incurred in enforcing its rights and remedies der this Lease, regardless of whether legal proceedings are actually commenced. .8 Accord and Satisfaction. Payment by Tenant or receipt by Landlord of a ser amount than the rent or other charges due hereunder shall be deemed to be account of the earliest due stipulated rent or other charges, and no endorsement statement on any check or any letter accompanying any check or payment shall deemed an accord and satisfaction, and Landlord shall accept such check or ymerit without prejudice to Landlord's right to recover the balance of such rent other charges or pursue any other remedy in this Lease. o Landlord's Liability . l Default by Landlord. Landlord shall not be considered in default or breach of s Lease for the nonperformance of any obligation imposed herein unless such nperformance shall continue for a period of at least thirty (30) days after notice sm Tenant; provided, however, if the nature of the nonperformance is such that it rmot be reasonably cured within thirty (30) days, Landlord shall not be deemed be in default if Landlord commences to cure such nonperformance within such -day period and thereafter pursues such cure to completion in the exercise of isonable diligence. liability of Landlord, or any of the respective partners, officers or directors of diotd, to Tenant for or in respect of any default by Landlord under the terms of Lease shall be limited to the interest of Landlord in the Property and the rents profits therefrom_ Tenant agrees to look solely to Landlord's interest in the )erty and the rents and profits therefrom for the recovery and satisfaction of judgment against Landlord, or any of the respective partners, officers or ctors of Landlord. 2s 53I!M3do&r DWI 1?,ST 6s5T- TT -Nnf 617 621 9525 P -UV11 JUN -11 -199 17-*O1 2. CW P) ,2 Sale of Landlord's Interest. Upon any sale or conveyance of Landlord's erest in this Lease, and provided the transferee of such interest assumes in iting all of Landlord's obligatiow hereunder from and after the date of such nsfer or assignment, Landlord shall be entirely relieved of all liability for ndlord's obligations under the Lease accruing thereafter. Landlord shall, acurrently with such transfer, deliver to Tenant written notice thecof together th a copy of the instrument by which the transferee assumed the obligations of n.dlord hereunder. Mortgage Exculpation. Notwithstanding anything contained herein to the ary, Tenant waives and holds any mortgagee or beneficiary named in any ;age, deed of trust or other security instrument harmless from any and all s Tenant may have against Landlord, which claims against Landlord occurred to the mortgage or beneficiary succeeding to Landlord's interest hereunder. Force Majeure If ither party is delayed or prevented from the performance of any act by reason of ac of God, strikes, lockouts, labor troubles, failure or refusal of governmental au orities to timely issue permits or approvals or conduct reviews or, inspections, rci - 1 disorder, inability to procure materials, mmterials, restrictive governmental la s or regulations, or other causes beyond the control of the parry obligated (f cial inability excepted), performance of such act shall be excused for the p iod of delay and the period for the performance of any such act shall be ex :ended for a period equivalent to the period of such delay, provided, however, no 'ng herein shall excuse Tenant from the prompt payment of rent or any other Nt shr Pe Ur to (3) Col Notices notice, consent, approval or other communication given in connection herewith 11 be validly given, made, delivered or served unless in writing and delivered in ion or sent by confirmed facsimile transmission and/or registered or certified ted States mail, postage prepaid, to Landlord or Tenant at the address set forth iection 1.1 or to such other addresses as Landlord or Tenant may from time to e designate in writing and deliver to the other party in accordance with this icle. Notices, consents, approval or communications shall be deemed given or jived upon delivery or refusal of delivery, if delivered in person, or upon three days after deposit in the mail, if delivered by mail or upon receipt of a Ennation of facsimile transmission, if given by facsimile. 26 9z*d 1 8rcz8LSIS9 s3Ila3dO66 JW1 Ze 666L- 11 -Nnr JUN- 11 -1c'99 17:01 L dlord Terri Cohen No tices: LMC P roperties, Inc 100 S. Charles St, Suite 1400 Baltimore, MD 21201 Fax: (410) 468 -1019 bl( bel 7JGJ r ri r I I I Greg Johnson Lockheed Martin Tactical Defense Systems 3333 Pilot Knob Road Eagan, MN 55121 Fax: (651) 456 -2605 Steve Kipuros, Jr. Countrywide Telecommunications, LLC CIO PTM Telecommunications 432 Columbia Street Suite 18 Cambridge, MA. 02414 Fax: (617) 621 -0450 �.0 General 27 .1 Colorado Law; Venue_ This Lease shall be construed in accordance with the la ws of the State of Colorado. The parties agree that Pueblo County, Colorado, sl all be the venue for any litigation relating to this Lease. 21.2 No Partnership. Nothing contained in this Lease shall be deemed to create y relationship other than that of landlord and tenant 27 .3 Amendments. No alteration, amendment, change or addition to this Lease s all be binding upon Landlord or Tenant unless reduced to writing, and signed by ixi th parties. 2 7. 4 ei No Waiver, No delay or omission of either party to exercise any right or er shall impair any such right or power, or shall be construed to be a waiver of nonperformance by the other party or an acquiescence therein. No wavier of nonperformance shall be effective unless it is in writing. No written waiver by .r party shall be deemed to be a waiver of any other Lease provision, or of any icquent breach by the other party of the same or any other provision. dlord's or Tenant's consent to or approval of any act by the other party shall 27 4e - d I 8572& SIS9 S3IiNacnbd DWI ZF :ST 6661- LY-Nflf JUN-11 1? :01 617 621 9525 P -W/11 be deemed to render unnecessary the proewrement of Landlord's or Tenant's sent to or a pproval of any subsequent act of the other party, whither or not filar to the act so consented to or approved. 21,5 Exhibits. Exhibit A , B, C, D attached hereto shall by this reference be d erred a part of this Lease as if set forth in full heroin. t l Partial In validity. If any provision of this Lease is held by a court of petent jurisdiction to be invalid, void or unenforceable, that provision may be ificd to the minimum extent necessary and the remainder of the provisions l remain in full force and effect and shall in no way be affected, impaired or lidated. 2� .6 Captions. The various headings and numbers herein and the grouping of the p ovisions of this Lease into separate articles and sections are for the purpose of C venience only and shall not control or affect the meaning or construction of any o the provisions. 2 .8 Time. Time is of the essence. If any time period provided for herein expires o .. a Saturday, Sunday or legal holiday, such time period shall be extended to the :n kt succeeding day that is not a Saturday Sunday or legal holiday. .9 Recordation. Neither party 91WI record this Lease in the public records of county within which the Premises is located. Either may, upon request and at expense of the requesting party, cause the other party to execute and record a -morandum of this Lease in Pueblo County, Colorado_ 2 _10 No Third Party Rights. Except as expressly provided herein, no term of this L ase is intended to or shall be for the benefit of any person not a party hereto, and nc such other person shall have any right or cause of action hereunder. 2 �.I l Joint and Several Obligations. If Tenant is constituted of two or more pe ores, corporations or other entities, all agreements, covenants, representations an I warranties of Tenant herein are the joint and several obligations of the entities co istituting Tenant Notice given to any one of the entities constituting Tenant sb be deemed as having been given to all such entities. 27,12 Authority to Execute. Any individual executing this Lease on behalf of or as representative for a corporation or other person, partnership or entity represents anO warrants that he or she is duly authorized to execute and deliver this Lease on betwf of such party, and that this Lease is binding upon such party in accordance wi its terms. is 8z'�t I 86VFG6SFS9 S3II63OV88 DWG Z2:Si 666T- IT Y JUN -11 - 1 99 1 ?:02 617 621 9525 P.09/11 .13 Binding- on Successors and Assigns. Each of the provisions of this Lease all bind, extend to, and inure to the benefit of the respective heirs, legal nesentatives, and successors and assigns of both Landlord and Tenant; provided, wever, that this clause shall not permit any transfer contrary to the terms hereof. 7.14 Impartial Interpretation. This Lease is the result of negotiations between mdlord and Tenant and therefore the language contained in this Lease shall be mztrued as a whole according to its fair meaning and not strictly for or against thek Landlord or Tenant. 27.15 Plurals. The words "Landlord" and "Tenant", as herein used, shall include e plural as well as the singular. The neuter gender shall include the masculine 31 I d . feminine genders. 2 .16 Not Binding Until Signed_ Submission of this instrument to Tenant for e 'amination shall not bind Landlord or Tenant in any manner, until this instrument is executed and delivered by both Landlord and Tenant. 2. 21.17 Quiet Enjoyment. Landlord covenants and agrees that Tenant, upon - paying tl Base Rent and other charges herein provided for and observing and keeping the c 'venants, agreements and conditions of this Lease on its part to be kept and p formed, shall lawfully and quietly hold, occupy and enjoy the Premises during tl Tenn in accordance with and subject to the terms of this Lease. 2' .18 Limitation on Recourse. Tenant specifically agrees to look solely to I- dlord's interest in the project for the recovery of any judgments from Landlord. It is agreed that Landlord (and its shareholders, venturers, and partners, and their $l eholders, venturers, and partners and all of their officers, directors, and el ployees) will not be personally liable for any such judgements. The provisions c - stained in the preceding sentences are not intended to and will not limit any right t t Tenant might otherwise have to obtain injunctive relief against Landlord or re ief in any suit or action in connection with enforcement or collection of arnounts t may become owing or payable under or on account of insurance maintained by 19 Confidentiality. Landlord and Tenant acknowledge that the terms and � ditions of this Lease arc to remain confidential for the benefit of both parties, may not be disclosed by either party to anyone, by any manner or means, � ,A o. indirectly, except to the respective party's attorneys, accountants, isultants, agents or as required by law, without the other party's prior written Lsent. The foregoing shall not apply in the event Tenant desires to assign this 29 6Z'd I 66VZZ96StSS S311IJ 068 Dw-1 V_z:5i 666T- tij -Nn JUN -11 -1$99 17:03 617 621 9525 P.18i11 H ise, or its interest herein, or to sublease all or a portion of the Premises, in which :rat Tarot shall be entitled to disclose the terms of this Lease as necessary in mection with the negotiation of any potential sublease or assignment The isent by a party to any specific disclosures shall not 'be deemed to be a waiver the consenting party of any prohibition against future disclosure. 2 .20 Brokers. The parties represent and warrant to each other that no broker or flader other than PM Realty Group was instrumental in arranging or bringing about this lease transaction and that there are no other claims or rights for brokerage commissions or finder's fees in connection with the transaction contemplated by is Lease. If any person brings a claim for a commission or finder's fee based u on any contact, dealings or communication with Landlord or Tenant, other than e Brokers already identified herein, then the party through whom such person es his claim shall indemnify, hold harmless and defend the other party (the " demnified Party ") fxom any and all costs, damages, claims, liabilities, losses, or e penses, (including without limitation, reasonable attorneys' fees and d sbursements) incurred by the Indemnified Party in defending against the claim. 2 .21 Entire Agreement. This Lease constitutes the entire agreement between L ndlord and Tenant regarding the subject matter hereof and supersedes all oral St: tements and prior writings relating thereto. Except for those sct forth in this L ase. No representations, warranties, or agreements have been made by Landlord U i Tenant to the other with respect to this Lease or the obligations of Landlord or I'Onant in connection therewith. .0 City Council Approval. If City of Pueblo, Colorado City Council has not ted to fund Tenant for its business by June 30, 1999 Tenant may withdraw from Lease without prejudice if notice is furnished to Landlord by July 5, 1999. rant will not have access to the Premises for construction or occupancy Until qtr July 5, 1999. 30 0£'c 66b26LSIS9 S31 i3dcbd :)W-1 bz:ST 6661 -II-wr JUN -11 -1199 17:03 617 621 9525 P.11 /11 Landlord and Tenant have executed this Lease as of the day and year first above written. Lockheed Martin Corporation By its Attorney -in -fact LMC properties, Inc. Signature: �Je/UUI. L zV -�--� By: Terri Beattie Its: Director, Real Estate PTM Tel cations es, Inc. Signature: B S F - V Its: 31 TOTAL P.11