Lease Agreement between Gateway Office Four, LLC and Frontier Airlines, Inc. for Four Gateway Centre, Aurora, Colorado

 FOUR GATEWAY CENTRE AURORA, COLORADO LEASE AGREEMENT between GATEWAY OFFICE FOUR, LLC and FRONTIER AIRLINES, INC. Dated December 15, 2000  GATEWAY OFFICE BUILDING ----------------------- LEASE SUMMARY ------------- 1. Landlord: Gateway Office Four, LLC 2. Tenant: Frontier Airlines, Inc. 3. Guarantor: None 4. Premises: Suite No. (To be determined) 5. Rentable Square Feet: 16,070 6. Commencement Date: See Section 3.3 below 7. Expiration Date: June 30, 2011 8. Term: Ten (10) years following the Rent Commencement Date 9. Rent Commencement Date: July 1, 2001 10. Initial Base Rent: $8.00/sq. ft/year NNN 11. Increase in Base Rent: See Section 1.2 12. Security Deposit: $12,427.47 13. Tenant's Pro Rata Share of the Building 25.70% 14. Broker: Coldwell Banker Commercial American Spectrum 15. Right of First Offer: See Exhibit K Note: This Lease Summary does not in any way modify the terms of the Lease Agreement, but rather is for information purposes only. The Lease Agreement should be consulted for all specific terms and in the event of any conflict between this Lease Summary and the Lease Agreement, the Lease Agreement shall control.  -iii- LEASE AGREEMENT TABLE OF CONTENTS ----------------- ARTICLES PAGE - -------- ---- ARTICLE 1 DEFINITIONS.....................................................................................1 ARTICLE 2 GRANT OF LEASEHOLD ESTATE.......................................................................4 ARTICLE 3 LEASE TERM......................................................................................4 ARTICLE 4 USE OF PREMISES AND COMMON AREAS................................................................5 ARTICLE 5 BASE RENT.......................................................................................6 ARTICLE 6 ADDITIONAL RENT.................................................................................7 ARTICLE 7 BUILDING SERVICES...............................................................................8 ARTICLE 8 IMPROVEMENTS TO BE MADE BY LANDLORD.............................................................9 ARTICLE 9 MAINTENANCE AND REPAIR..........................................................................9 ARTICLE 10 SIGNAGE........................................................................................10 ARTICLE 11 CARE OF THE PREMISES BY TENANT.................................................................10 ARTICLE 12 REPAIRS AND ALTERATIONS BY TENANT..............................................................10 ARTICLE 13 UTILITIES......................................................................................11 ARTICLE 14 LAWS AND REGULATIONS...........................................................................12 ARTICLE 15 BUILDING RULES.................................................................................13 ARTICLE 16 ENTRY BY LANDLORD..............................................................................13 ARTICLE 17 ASSIGNMENT AND SUBLETTING......................................................................13 ARTICLE 18 LIENS..........................................................................................14 ARTICLE 19 INSURANCE......................................................................................15 ARTICLE 20 INDEMNITY......................................................................................16 ARTICLE 21 DAMAGE OR DESTRUCTION TO BUILDING..............................................................17 ARTICLE 22 CONDEMNATION...................................................................................17 ARTICLE 23 DAMAGES FROM CERTAIN CAUSES....................................................................18 ARTICLE 24 EVENTS OF DEFAULT..............................................................................18 ARTICLE 25 LANDLORD'S REMEDIES............................................................................19 ARTICLE 26 LANDLORD'S DEFAULT.............................................................................22 ARTICLE 27 PEACEFUL ENJOYMENT.............................................................................22 ARTICLE 28 HOLDING OVER...................................................................................22 ARTICLE 29 SUBORDINATION TO MORTGAGE......................................................................23 ARTICLE 30 Reserved.......................................................................................23 ARTICLE 31 BANKRUPTCY OR INSOLVENCY.......................................................................23 ARTICLE 32 AMERICANS WITH DISABILITIES ACT................................................................24 ARTICLE 33 ATTORNEY FEES..................................................................................25 ARTICLE 34 NO IMPLIED WAIVER..............................................................................25 ARTICLE 35 LIMITATION OF LANDLORD LIABILITY...............................................................25 ARTICLE 36 SECURITY DEPOSIT...............................................................................26 ARTICLE 37 NOTICE.........................................................................................26 ARTICLE 38 SEVERABILITY...................................................................................27 ARTICLE 39 RECORDATION....................................................................................27 ARTICLE 40 GOVERNING LAW..................................................................................27 ARTICLE 41 FORCE MAJEURE..................................................................................27 ARTICLE 42 TIME OF PERFORMANCE............................................................................27 ARTICLE 43 TRANSFERS BY LANDLORD..........................................................................27 ARTICLE 44 COMMISSIONS....................................................................................27 ARTICLE 45 EFFECT OF DELIVERY OF THIS LEASE...............................................................28 ARTICLE 46 CORPORATE AUTHORITY............................................................................28 ARTICLE 47 JOINT AND SEVERAL LIABILITY....................................................................28 ARTICLE 48 INTERPRETATION.................................................................................28 ARTICLE 49 INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS...............................................28 ARTICLE 50 WAIVER OF JURY TRIAL...........................................................................28 ARTICLE 51 ESTOPPEL CERTIFICATES..........................................................................28 ARTICLE 52 NO MERGER......................................................................................29 ARTICLE 53 COUNTERPARTS...................................................................................29 ARTICLE 54 EQUIPMENT......................................................................................29 ARTICLE 55........PARKING................................................................................................... 30 ARTICLE 56........RESTRICTED USE.......................................................................................31 ARTICLE 57 EXHIBITS.......................................................................................31 3  LIST OF EXHIBITS ---------------- Principal Reference Exhibit Description "In Section/Article" - ------- ----------- -------------------- "A" Legal Description.............................................................................1.4 "B" Floor Plan of Premises.......................................................................1.17 "C" Operating Expenses...........................................................................1.11 Attachment 1 (Schematic Diagram of Parking)...................................................C-1 "D" Work Letter.....................................................................................8 "E" Building Rules and Regulations.................................................................15 "F" Commencement Memorandum.......................................................................1.8 "G" Reserved.....................................................................................31.4 "H" Estoppel Certificate...........................................................................51 "I" Subordination, Non-Disturbance, and Attornment Agreement.......................................51 "J" Reserved .....................................................................................n/a "K" Right of First Offer ........................................................................1.17 Attachment 1 (First Offer Space) .............................................................K-1  -31- Tenant Initials GATEWAY OFFICE FOUR BUILDING LEASE AGREEMENT --------------- THIS LEASE AGREEMENT (the "Lease"), is made and entered into as of the 15th day of December, 2000, between GATEWAY OFFICE FOUR, LLC, a Colorado limited liability company ("Landlord"), and FRONTIER AIRLINES, INC., a Colorado corporation ("Tenant"). NOW, THEREFORE, Landlord and Tenant agree as follows: ARTICLE 1 - ------------------ DEFINITIONS ----------- 1.1 Reserved 1.2 "Base Rent" shall be determined as follows: (i) During months one (1) through thirty-six (36) of the Lease Term, the Base Rent shall be calculated using Eight Dollars ($8.00) per square foot of Rentable Area in the Premises per year. (ii) During months thirty-seven (37) through seventy-two (72) of the Lease Term, the Base Rent shall be calculated using Eight Dollars and Sixty-One Cents ($8.61) per square foot of Rentable Area in the Premises per year. (iii) During months seventy-three (73) through one hundred twenty (120) of the Lease Term, the Base Rent shall be calculated using Nine Dollars and Twenty-Eight Cents ($9.28) per square foot of Rentable Area in the Premises per year. The Base Rent due for the first full calendar month during the Lease Term shall be paid to Landlord by Tenant on the Commencement Date. 1.3 "Building" shall mean (i) the parcel of real property described in Exhibit "A" attached hereto and incorporated herein; (ii) the office building and parking structure built or to be built on such parcel of real property; and (iii) any and all other improvements thereon and appurtenances thereto. The street address of the Building shall be determined prior to the Commencement Date; such street address may be modified by Landlord not more than once during the Lease Term. 1.4 "Building Shell" shall mean the condition of the Building completed in accordance with the Base Building Improvements as defined in the Work Letter attached hereto and incorporated herein. 1.5 "Commencement Date" shall mean the date on which Landlord delivers the Premises to Tenant to enable Tenant to complete its "Tenant Improvements" thereto in accordance with Section 3.3 below and the Work Letter. 1.6 "Commencement Memorandum" shall mean a document similar to Exhibit "F" attached hereto. The Commencement Memorandum, among other things, shall contain a reference to the Rentable Area of the Building and the Rentable Area of the Premises. Tenant agrees that the Rentable Area of the Building and Rentable Area of the Premises stated in the Commencement Memorandum shall be binding throughout the Lease Term. 1.7 Reserved 1.8 "Laws" shall mean all applicable statutes, regulations, ordinances, requirements and orders promulgated by any federal, state, local or regional governmental authority now in force or in force after the Commencement Date. 1.9 "Lease Term" shall mean the term commencing on the Rent Commencement Date and continuing until one hundred twenty (120) months after the first day of the first full calendar month following the Rent Commencement Date; provided, however, that the term of Tenant's and Landlord's rights and obligations hereunder shall be subject to Tenant's early termination right set forth in Section 3.5 hereof. 1.10 "Mortgagee" shall mean the mortgagee under a mortgage or beneficiary under a deed of trust holding a lien encumbering the Building or any holder of a ground leasehold interest in the Building or any part thereof. 1.11 "Operating Expenses" shall mean all costs of any kind required to operate, clean, equip, protect, light, repair, replace, heat, air-condition and maintain the Building "Common Areas" (as hereinafter defined) as a first class office project consistent with standards adopted by landlords of comparable Class A, single-story office projects in the Northeast Denver office market. As used herein, the term "Common Areas" shall mean those portions of the Building which are not leased to and used on an exclusive basis by tenants of the Building (i.e., "Common Areas" excludes the Premises and other premises in the Building leased to tenants). Operating Expenses shall include without limitation, all of the following: (i) all amounts charged to the Building pursuant to any covenants, codes, restrictions, or agreements with respect to the real property; (ii) Real Property Taxes; (iii) all costs, charges and surcharges for janitorial, waste disposal, snow and ice removal and refuse removal and all other utilities and services provided to the Common Areas or which benefit all tenants of the Building; (iv) insurance costs for which Landlord is responsible under this Lease or which Landlord or any Mortgagee deems necessary or prudent; (v) any costs levied, assessed or imposed pursuant to any applicable Laws; (vi) the cost (amortized over such period as Landlord reasonably determines together with interest on the unamortized balance at two percentage points (2%) over the rate of interest announced from time to time by U. S. Bank, as its prime or reference commercial lending rate) of any capital improvements to the Building (excluding tenant improvements) or equipment replacements made by Landlord after the Commencement Date that are intended to reduce other Operating Expenses or are required by any Laws or are necessary in order to operate the Building at the same quality level as prior to such replacement; (vii) costs and expenses of operation, repair and maintenance of all structural and mechanical portions and components of the Building including, without limitation, plumbing, communication, heating, ventilating and air-conditioning ("HVAC"), and electrical and other common Building systems used by all tenants; (viii) all costs incurred in the management and operation of the Building including, without limitation, gardening and landscaping, maintenance of all parking areas, structures and garages, maintenance of signs, resurfacing and repaving, painting, lighting, cleaning, and provision of Building security; (ix) rental or lease payments paid by Landlord for rented or leased personal property used in the operation or maintenance of portions of the Building used by all tenants; (x) wages, salaries and other labor costs incurred in the management and operation of the Building; (xi) fees for required licenses and permits; (xii) reasonable legal, accounting and other professional fees; (xiii) reasonable and appropriate reserves for repair and replacement; and (xiv) a reasonable allowance to Landlord for management of the Building and supervision of all of the foregoing, not to exceed the greater of (1) three and one-half percent (3.5%) of the total gross rental revenues derived from the Building, or (2) the amount charged for by landlords of comparable Class A, single story office projects in the Northeast Denver office market. If the Building is not fully occupied during any portion of the Lease Term, Landlord shall make an appropriate adjustment to Operating Expenses for such period employing sound accounting and management principles, to determine the amount of Operating Expenses that would have been incurred had the Building been fully occupied during such period (collectively referred to as "Grossed-Up"). Notwithstanding the foregoing, Operating Expenses shall not include the items described on Exhibit "C" attached hereto. Landlord's good faith estimate of Operating Expenses for the first year of the Building's operation is included on Exhibit "C". Tenant acknowledges and agrees, however, that the Building has not been constructed as of the date of this Lease and the amounts shown on Exhibit "C" are estimates only and are not binding upon Landlord in the event that actual Operating Expenses differ from such estimate. 1.12 "Premises" shall mean that space outlined on the floor plan attached to this Lease as Exhibit "B" and incorporated herein. The Premises are stipulated for all purposes to contain Sixteen Thousand Seventy (16,070) square feet of Rentable Area; provided that such square footage may be increased pursuant to the Right of First Offer attached hereto as Exhibit "K." 1.13 "Real Property Taxes" shall mean and include any form of tax, assessment, license fee, license tax, business license fee, commercial rental tax, levy, charge, penalty, tax or similar imposition, imposed by any authority having the direct power to tax, including any city, county, state or federal government, or any school, lighting, drainage, transportation, air pollution, environmental or other improvement or special assessment district thereof, as against any legal or equitable interest of Landlord in the Building and/or the Premises, including, but not limited to, the following: (i) any tax on Landlord's "right" to rent or "right" to other income from the Premises or as against Landlord's business of leasing the Premises; (ii) any assessment, tax, fee, levy or charge in substitution, partially or totally, of any assessment, tax, fee, levy or charge previously included within the definition of Real Property Taxes (it is the intention of Tenant and Landlord that all such new and increased assessments, taxes, fees, levies and charges be included within the definition of "Real Property Taxes" for the purposes of this Lease); (iii) any assessment, tax, fee, levy or charge allocable to or measured by the area of the Premises or the rent payable hereunder, including, without limitation, any gross income tax or excise tax levied by the state, county, city or federal government, or any political subdivision thereof, with respect to the receipt of such rent, or upon or with respect to the possession, leasing, operating, management, maintenance, alteration, repair, use or occupancy of the Building, or any portion thereof; (iv) any assessment, tax, fee, levy or charge upon this transaction creating or transferring an interest or an estate in the Premises; (v) any assessment, tax, fee, levy or charge based upon the number of people employed, working at, or using the Premises or the Building, or utilizing public or private transportation to commute to the Premises or the Building; and (vi) reasonable legal and other professional fees, costs and disbursements incurred in connection with proceedings to contest, determine or reduce Real Property Taxes. Real Property Taxes shall not include federal or state income, franchise, inheritance or estate taxes of Landlord or any of the parties which comprise Landlord or tax imposed upon any transfer by Landlord of its interest in this Lease or the Building. 1.14 "Rentable Area" of the Premises shall mean Sixteen Thousand Seventy (16,070) square feet subject to adjustment prior to the Rent Commencement Date, the amount of which adjustment shall be determined by Landlord's architect within a reasonable time after construction of the demising wall, which calculation shall include an add-on factor equal to the Tenant's Share of any common areas within the Building. The Building is stipulated for all purposes to contain Sixty Two Thousand Five Hundred Six (62,556) square feet of Rentable Area. Notwithstanding the foregoing, upon completion of construction of the Building, the Premises and the Building shall be measured and calculated by Landlord, at its sole cost and expense, within ninety (90) days after the Commencement Date, in accordance with BOMA Publication ANSIZ 65.1-1996 (the "Measurement Standard"). Landlord shall provide Tenant with backup documentation evidencing such calculation. Upon the determination of the actual size of the Premises in accordance with the Measurement Standard, Landlord and Tenant shall execute a confirmatory amendment setting forth the actual Rentable Area and Tenant's Share, and the Rent and Tenant's Share shall be adjusted accordingly, if necessary. 1.15 "Rent Commencement Date" shall mean July 1, 2001, as the same may be extended pursuant to the provisions of Section 3.3 below. 1.16 "Security Deposit" shall mean the sum of Twelve Thousand Four Hundred Twenty-seven and 47/100ths Dollars ($12,427.47). 1.17 "Tenant's Share" shall be a fraction of which the numerator is the Rentable Area of the Premises as set forth in Section 1.14 and the denominator is the Rentable Area in the Building as set forth in Section 1.14.  ARTICLE 2 - ------------------ GRANT OF LEASEHOLD ESTATE ------------------------- Subject to and upon the terms and conditions herein set forth, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises. Landlord hereby leases the Premises to Tenant on a "Triple Net" basis. Landlord shall not be obligated to pay any expenses or incur any liabilities of any kind relating to the Premises or Building during the Term, except as specifically assumed by Landlord pursuant to the terms hereof. ARTICLE 3 - ------------------ LEASE TERM ---------- 3.1 Shell Improvements. Landlord will construct or install in the Premises the improvements contemplated by Section 4.2 of the Work Letter (the "Shell Improvements") prior to the Commencement Date, and thereafter shall complete construction of the "Base Building Improvements" (as defined in the Work Letter) prior to the Rent Commencement Date. Landlord will be deemed to have delivered possession of the Premises to Tenant on the Commencement Date, as it may be adjusted pursuant to Section 3.3 and the Work Letter, so that Tenant may then commence construction of its "Tenant Improvements" to the Premises. Tenant acknowledges that neither Landlord nor its agents or employees have made any representations or warranties as to the suitability or fitness of the Premises for the conduct of Tenant's business or for any other purpose, nor has Landlord or its agents or employees agreed to undertake any alterations or construct any tenant improvements to the Premises except as expressly provided in this Lease and the Work Letter. If for any reason Landlord cannot deliver possession of the Premises to Tenant with the Shell Improvements completed or has not completed the Base Building Improvements on or before the dates therefor specified in Section 3.3 below, this Lease will not be void or voidable except as expressly provided pursuant to such Section, and Landlord will not be liable to Tenant for any resultant loss or damage. 3.2 Reserved. 3.3 Commencement Date. Landlord covenants to use commercially reasonable efforts to cause substantial completion of (i) the Shell Improvements and delivery of the Premises to Tenant for purposes of Tenant's construction of the Tenant Improvements in accordance with the Work Letter on or before April 1, 2001, and (ii) substantial completion of the Base Building Improvements on or before July 1, 2001. If Landlord fails to meet either or both of the foregoing dates due to default on the part of Landlord (as determined in accordance with Article 26 below) or as a result of the occurrence of events of force majeure as described in Article 41 below, then as Tenant's sole remedies for the delay in Tenant's taking possession of the Premises or the completion of the Base Building Improvements, (a) Tenant shall be entitled to one (1) day of free Rent in the Premises for each day that Landlord fails to timely deliver the Shell Improvements and/or the Base Building Improvements as required herein (the "Free Rent Period"); (b) the Rent Commencement Date shall be delayed for the period of delay in substantial completion of the Shell Improvements and/or delivery of the Premises, as applicable, resulting from Landlord's default and for the duration of the Free Rent Period; and (c) the Expiration Date of the Lease Term shall likewise be extended; provided, that in the event that substantial completion of the Shell Improvements and delivery of the Premises and/or substantial completion of the Base Building Improvements has not occurred on or before January 1, 2002 due to default on the part of Landlord (determined in accordance with Article 26 below) or as a result of the occurrence of events of force majeure as described in Article 41 below, then Tenant shall have the right to terminate this Lease upon ten (10) days' prior written notice to Landlord. The date on which Landlord actually delivers possession of the Premises to Tenant in accordance with the foregoing is referred to herein as the "Commencement Date." 3.4 Term. The term of this Lease is the Lease Term. 3.5 Option to Terminate. Provided Tenant is not in default of its obligations under the Lease and Tenant has not assigned its rights under the Lease (except as permitted pursuant to Article 17 below), Tenant shall have the option to terminate this Lease ("Option to Terminate") after completion of the sixtieth (60th) month of the Lease Term upon the following terms and conditions. In order to effectively exercise the Option to Terminate, Tenant shall deliver written notice of its exercise of the Option to Terminate, to be effective twelve (12) months following such exercise, and shall pay a termination fee equal to the sum of (1) three months Rent effective as of the date of such notice, and (2) all unamortized leasing commissions of Landlord due in connection with this Lease, all as reasonably determined by Landlord using an interest rate of 11% per annum. In the event Tenant delivers its notice that it has elected to exercise the Option to Terminate, Landlord shall deliver to Tenant, Landlord's determination of the termination fee. Tenant shall pay the termination fee to Landlord within thirty (30) days after receipt of Landlord's determination of such fee, at which time this Lease shall be deemed terminated with no further obligation on the part of either party to the other except for those obligations which specifically survive the expiration or earlier termination of this Lease. The Option to Terminate shall be null and void if any of the following occur: (i) Tenant fails to pay the termination fee within the time period provided herein, or (ii) Tenant assigns its rights under the Lease. ARTICLE 4 - ------------------ USE OF PREMISES AND COMMON AREAS -------------------------------- 4.1 Premises. The Premises shall be used for general and administrative office purposes with communication support capabilities (i.e. as a reservation call center) and for no other purposes. Tenant will use the Premises in a careful, safe, and proper manner. Tenant agrees not to use or permit the use of the Premises for any purpose which is illegal or prohibited by any applicable law, or which, in Landlord's reasonable opinion, creates a nuisance or would materially increase the cost of insurance coverage with respect to the Building. Tenant shall not use or occupy the Premises in violation of such rules and regulations described in Article 15 below nor in violation of any other laws, recorded covenants, conditions or restrictions affecting the Building. Tenant shall have access to the Premises for the use permitted hereunder twenty-four (24) hours per day, three hundred sixty-five (365) days per year. 4.2 Common Areas of Building. Tenant shall have the nonexclusive right to use in common with other tenants in the Building, and subject to the rules of the Building referred to in Article15 below, the following areas ("Common Areas") appurtenant to the Premises: (i) the common entrances, lobbies, restrooms and accessways, loading docks, ramps, drives and platforms and any passageways and serviceways thereto, and the common pipes, conduits, wires and appurtenant equipment serving the Premises; and (ii) parking areas (subject to such reasonable rules and regulations relating thereto as may be adopted by Landlord from time to time), loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways, driveways and landscaped areas appurtenant to the Building. 4.3 Landlord's Rights in Common Areas. Landlord reserves the right from time to time without unreasonable interference with Tenant's use or Tenant's access to the Premises: (i) to install, use, maintain, repair and replace pipes, ducts, conduits, wires and appurtenant meters and equipment for service to other parts of the Building above the ceiling surfaces, below the floor surfaces, within the walls and in the central core areas, and to relocate any pipes, ducts, conduits, wires and appurtenant meters and equipment included in the Premises which are located in the Premises or located elsewhere outside the Premises, and to expand the Building; (ii) to make changes to the Common Areas, including, without limitation, changes in the location, size, shape and number of driveways, entrances, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas and walkways and, subject to the Parking Agreement, parking spaces and parking areas; (iii) to close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises remains available; (iv) to use the Common Areas while engaged in making additional improvements, repairs or alterations to the Building, or any portion thereof; and (v) to do and perform such other acts and make such other changes in, to or with respect to the Common Areas and Building as Landlord may, in the exercise of sound business judgment, deem to be appropriate. 4.4 Prohibited Use of Common Areas. Tenant may not display or sell merchandise or allow portable signs, devices or any other objects to be stored or to remain outside the defined exterior walls or roof and permanent doorways of the Premises. In addition, Tenant shall not solicit by handbills, bumper stickers or other advertising devises, in any manner, in the parking areas or Common Areas of the Building. No advertising medium may be used by Tenant which can be heard or experienced outside the Premises. 4.5 Affirmative Covenants of Tenant. Without in any way limiting or restricting other covenants of Tenant elsewhere in this Lease contained, the Tenant affirmatively covenants and agrees as follows: a. Tenant shall neither permit or suffer any conduct, noise, odor or other nuisance about the Premises to annoy or disturb any persons occupying adjacent premises or Common Areas; b. Tenant shall keep the Premises including all service and/or loading areas for the Premises free from all litter, dirt and obstructions, and shall not advertise within the Building or Common Areas except as designated by Landlord. c. Tenant shall arrange for and accept deliveries only at such times, in the areas, and through the entrances designated for such purpose by Landlord. d. Tenant shall keep the Premises clean and in the sanitary condition required by ordinance and regulations of any governmental or quasi-governmental unit having jurisdiction; e. Tenant shall neither permit or suffer the Premises, or the walls or floors thereof, to be endangered by overloading; and f. Tenant shall properly maintain the HVAC system in the Premises including, at the option of Landlord, subscribing to a service selected by Landlord for such maintenance and paying the fees therefor. 4.6 Garbage and Refuse Collection. Tenant shall keep all garbage and refuse in the kind of containers designated by Landlord which Tenant shall place outside of the Premises prepared for processing and/or collection in such manner and at such times and places specified by Landlord. Landlord shall use commercially reasonable efforts to contract with a garbage disposal company which implements a refuse recycling program at the Building so long as implementation of such recycling program does not (i) materially increase the cost of providing refuse collection and disposal at the Building, or (ii) conflict with or cause cancellation of Landlord's refuse collection and disposal contracts for other properties within the vicinity of the Building which may include the Building and other properties owned by Landlord on an "umbrella" contract basis. ARTICLE 5 - ------------------ BASE RENT --------- 5.1 Base Rent. Tenant agrees to pay to Landlord during the Lease Term, without any setoff or deduction whatsoever the Base Rent, and all such other sums of money as shall become due hereunder as Additional Rent. Should Tenant fail to pay any Additional Rent in a timely manner, Landlord shall be entitled to exercise all such rights and remedies as are herein provided in the case of the nonpayment of Base Rent. The annual Base Rent for each calendar year or portion thereof during the Lease Term, together with estimated Additional Rent pursuant to Article 6 hereof then in effect, shall be due and payable in advance, in lawful money of the United States of America which shall be legal tender at the time of payment, in twelve (12) equal installments on the first day of each calendar month during the initial Lease Term and any extensions or renewals thereof, and Tenant hereby agrees to pay such Base Rent and Additional Rent to Landlord at Landlord's address provided herein (or such other address as may be designated by Landlord in writing from time to time) monthly, in advance, and without demand. If the Lease Term commences on a day other than the first day of a month or terminates on a day other than the last day of a month, then the installments of Base Rent and Additional Rent for such month or months shall be prorated, based on the number of days in such month. The first monthly installment of Base Rent shall be due and payable on the Commencement Date. 5.2 Additional Rent. All charges payable by Tenant hereunder other than Base Rent (including, without limitation, Taxes, utilities charges, if applicable, and Operating Expenses payable pursuant to Article 6 below) are called "Additional Rent." Unless this Lease provides otherwise, all Additional Rent shall be paid with the next monthly installment of Base Rent. Base Rent and Additional Rent are sometimes referred to collectively as "Rent." 5.3 Interest and Administrative Charges on Late Payments. All installments of Rent not paid when due and payable shall bear interest and incur the administrative charges as set forth hereinbelow. Landlord's acceptance of any late charge or interest shall not constitute a waiver of Tenant's default with respect to the overdue amount nor prevent Landlord from exercising any of the other rights and remedies available to Landlord under this Lease or any law now or hereafter in effect. ARTICLE 6 - ------------------ ADDITIONAL RENT --------------- Commencing on the Commencement Date, Tenant shall pay for Tenant's Share of all expenses related to the Building, except for those expenses specifically excluded from the definition of Operating Expenses in Section 1.11 hereof, including, but not limited to the following: 6.1 Operating Expenses and Taxes. Tenant shall pay to Landlord as Additional Rent in accordance with the payment provision provided herein, Tenant's Share of the total annual Operating Expenses and Real Property Taxes. Such amount shall be paid in advance in monthly installments on the same dates as Base Rent is due and payable hereunder based on Landlord's notice delivered to Tenant from time to time setting forth Landlord's good faith estimate of the Operating Expenses for the current calendar year. Landlord shall have the right to prospectively adjust such amount no more than once a year to reflect any changes in Landlord's estimate of Operating Expenses. 6.2 Annual Statement of Operating Expenses. By April 1 of each calendar year during the Lease Term, or as soon thereafter as practicable but no later than May 1, Landlord shall furnish to Tenant a statement ("Actual Statement") of Landlord's annual Operating Expenses, for the previous calendar year. If for any calendar year the amounts collected from Tenant for the prior year, as a result of Landlord's estimate of Operating Expenses, exceeds the amount of the Operating Expenses actually due during such prior year, then Landlord shall refund to Tenant any overpayment (or at Landlord's option, apply such amount against Rent due or to become due hereunder). Likewise, Tenant shall pay to Landlord, on demand, any underpayment of Operating Expenses with respect to the prior year with the first Base Rent payment payable after receipt of the Actual Statement. 6.3 Audit Right. In the event of any good faith dispute as to the amount of the Operating Expenses as set forth in the Actual Statement of actual Operating Expenses, Tenant shall have the right, no more frequently than once per calendar year, after notice to Landlord and at reasonable times, to inspect and photocopy Landlord's Operating Expenses records at Landlord's offices. If, after such inspection and photocopy, Tenant continues, in good faith, to dispute the amount of Operating Expenses as set forth in the Actual Statement, Tenant shall be entitled not later than ninety (90) days following Tenant's receipt of an Actual Statement to retain a national, independent, certified public accountant who is not contracted on a contingency fee basis and is mutually acceptable to Landlord and Tenant to audit Landlord's Operating Expenses records with respect to the calendar year covered by Actual Statement to determine the proper amount of Operating Expenses. Landlord shall be entitled to review the results of such audit promptly after completion of same. If the results of such audit states that Landlord has overcharged Tenant, then within fifteen (15) days after the results of the audit are made available to Landlord, Landlord shall credit Tenant the amount of such overcharge toward the payments of Base Rent and Additional Rent next coming due under this Lease. If such audit proves that Landlord has undercharged Tenant, then within fifteen (15) days after the results of the audit are made available to Tenant, Tenant shall pay to Landlord the amount of any such undercharge. Tenant agrees to pay the cost of such audit, provided that Landlord shall reimburse Tenant the amount of such cost if the results of such audit states that Landlord's determination of the Operating Expenses (as set forth in the Actual Statement) was in error by more than ten percent (10%). If Tenant does not request an audit in accordance with the provisions of this Section 6.3 within one (1) year after Tenant's receipt of an Actual Statement, such Actual Statement shall be conclusively binding upon Tenant. Landlord shall be required to maintain records of all Operating Expenses for Four (4) years following the issuance of the Operating Expense statement for such Operating Expenses. The payment by Tenant of any amounts pursuant to this Article shall not preclude Tenant from timely questioning the correctness of any such statement. 6.4 Utilities. Tenant shall pay, as and when billed by the applicable utility service, for gas, electricity, heating, air conditioning and ventilating directly to the utility providing such service to the Premises, and shall pay Tenant's Share of all other utility services furnished for use in the Premises or to operate any of Tenant's signs which are not separately metered to the Premises. Tenant agrees to pay to Landlord monthly as a separate charge for any utility services furnished to Tenant or the Premises but not separately metered to the Premises such amount as shall be due in accordance with the rates as established from time to time in the then current schedule of rates of Landlord for supplying said utilities, but in no event shall said rate exceed that for which Tenant would be charged should it obtain any of said services directly from the same third party supplier thereof. 6.5 Confidentiality. Tenant will keep confidential all agreements involving the rights provided in this section and the results of any audits conducted hereunder. Notwithstanding the foregoing, Tenant shall be permitted to furnish the foregoing information to its attorneys, accountants and auditors to the extent necessary for such persons to perform their respective services for Tenant, provided such permitted party agrees in writing to keep all audit information confidential. ARTICLE 7 - ------------------ BUILDING SERVICES ----------------- Landlord agrees to furnish Tenant the following services as an Operating Expense for the Building (except as specifically provided below): 7.1 Gas, Water   Sewer Service. All gas, water and sewer at those points of supply provided for general use of other tenants in the Building. 7.2 Routine Maintenance. Routine maintenance and electric lighting service for all Common Areas and service areas of the Building in the manner and to the extent reasonably deemed by Landlord to be standard for the Building (hereinafter defined as "Building Standard"). 7.3 Reserved. 7.4 Base Electricity. Subject to the provisions of Article 13, facilities to provide all electrical current required by a typical office user, as reasonably determined by Tenant's electrical engineers and by Landlord, in its use and occupancy of the Premises. 7.5 Light Maintenance. All Building Standard fluorescent bulb replacement in the Premises and fluorescent and incandescent bulb replacement in the Common Areas of the Building. 7.6 Access Cards. Tenant, at its sole cost and expense, shall provide a system for access to the Premises. Landlord shall have no liability to Tenant, its employees, agents, invitees or licensees for losses due to theft or burglary, or for damages resulting from the actions of unauthorized persons on the Premises or in the Building and Landlord shall not be required to insure against any such losses. Tenant shall cooperate fully in Landlord's efforts to maintain security in the Building and shall follow all regulations promulgated by Landlord which respect thereto. The failure by Landlord to any extent to furnish, or the interruption or termination of these defined services in whole or part shall not render Landlord liable in any respect nor be construed as an eviction of Tenant, nor work an abatement of Rent, nor relieve Tenant from the obligation to fulfill any covenant or agreement hereof. Should any of the equipment or machinery used in the provision of such services for any cause cease to function properly, Tenant shall have no claim for offset or abatement of Rent or damages on account of an interruption in service resulting therefrom. ARTICLE 8 - ------------------ IMPROVEMENTS TO BE MADE BY LANDLORD ----------------------------------- Except as otherwise provided in the Work Letter attached hereto as Exhibit "D," all installations and improvements now or hereafter placed on the Premises shall be for Tenant's account and at Tenant's cost (and Tenant shall pay ad valorem taxes and the cost of any increased insurance premiums thereon or attributable thereto), which cost shall be payable by Tenant to Landlord upon demand as Additional Rent. In addition, in the event that the improvements to the Premises are of greater cost than of a typical tenant in the Building, as reasonably determined by Landlord, such that the Real Property Taxes for the Building are greater than they would otherwise be, or in the event that any other improvements to the Premises cause assessment of such greater taxes, Tenant shall be required to pay such excess tax amount promptly at such times as Landlord shall from time to time designate. ARTICLE 9 - ------------------ MAINTENANCE AND REPAIR ---------------------- 9.1 Maintenance by Tenant. Tenant shall, at its sole cost and expense, furnish, maintain and replace all electric light bulbs, tubes, ballasts and tube casings in the Premises and keep the Premises in good repair and condition and make all needed repairs and replacements therein or thereto, including without limitation replacement of cracked or broken glass, and maintenance and repair of the heating, ventilating, and air conditioning systems in accordance with Section 9.3 below ("HVAC System") servicing the Premises, except for repairs required to be made by Landlord under Section 9.2 below, keep all plumbing units, pipes and connections in the Premises free from obstruction and protected against ice and freezing, and shall maintain in good order and repair, and in a clean and sanitary condition, and replace, as necessary, all portions of the Premises, including storefronts, window and door frames and cases, security grills, plate glass, wall and floor coverings. Tenant shall also repair, at its sole expense, any damage in connection with any burglary or forcible entry into the Premises. If any repairs required to be made by Tenant are not commenced within ten (10) days after written notice is delivered to Tenant by Landlord (unless the repairs are required as a result of an actual or apparent emergency, in which event no prior notice need be given), and thereafter diligently prosecuted to completion, Landlord may, at its option, make such repairs without liability to Tenant for any reasonable loss or damage which may result to Tenant's stock or business by reason of such repairs, and Tenant shall pay to Landlord immediately upon demand as Additional Rent hereunder the cost of such repairs plus ten percent (10%) of the amount thereof, and failure to do so shall constitute an event of default by Tenant. 9.2 Maintenance by Landlord. Landlord shall, subject to reimbursement as part of the Building's Operating Expenses, keep the foundation, the structural and exterior walls (except store fronts, plate glass windows, doors, door closure devices, window and door frames, molding, locks and hardware and painting or other treatment of interior walls) and the roof of the Premises in good repair, except that Landlord shall not be required to make any repairs caused by the act or negligence of Tenant, its agents, invitees, employees, subtenants, assignees, licensees and concessionaires, or necessitated by any improvements, alterations or additions made by or on behalf of Tenant (whether or not consented to by Landlord), which repairs shall be made by Tenant (or, at Landlord's option, by Landlord at Tenant's expense). In the event that the Premises should become in need of repairs required to be made by Landlord, Tenant shall give immediate written notice to Landlord and Landlord shall not be responsible in any way for failure to make any such repairs until a commercially reasonable time period shall have elapsed after delivery of such written notice. Landlord's obligation hereunder is limited to repairs specified in this Section 9.2 only, and Landlord shall have no liability for any damages or injury arising out of any condition or occurrence causing a need for those repairs, unless otherwise specifically provided for herein. 9.3 HVAC System Contract. Tenant shall, throughout the Lease Term, at Tenant's sole cost and expense, obtain and keep in force a preventative maintenance service contract ("Service Contract"), in form and content and with a contractor reasonably acceptable to Landlord, on the HVAC System and related equipment servicing the Premises. Tenant shall provide a copy of the Service Contract to Landlord within 10 days after the Commencement Date and thereafter upon request. Landlord may, at any time during the Lease Term, elect to obtain a common or master preventative maintenance service contract covering the HVAC systems of more than one tenant premises within the Building, in which event, Tenant shall no longer be required to maintain its own Service Contract and in lieu thereof, Tenant shall pay to Landlord Tenant's Share of the costs of such common or master service contract as part of Operating Expenses. ARTICLE 10 - ------------------ SIGNAGE ------- Landlord shall provide and install, at Tenant's cost, all letters or numerals on doors in the Premises; all such letters and numerals shall be in the standard graphics for the Building and no others shall be used or permitted on the Premises without Landlord's prior written consent. Landlord shall allow, exterior monument signage incorporating Tenant's trade name and logo to be erected by Tenant at Tenant's sole cost and expense, at a reasonable location selected by Landlord, provided, such signage shall comply with Landlord's signage regulations as may be in effect from time to time and Tenant, at its sole cost and expense shall be solely responsible for obtaining any required approvals for its signage, including the approvals of the City and County of Denver and the Gateway Park Design Review Committee. Failure to obtain such approvals shall not render this Lease void or voidable, and Landlord will not be liable to Tenant for any resultant loss or damage. Except as set forth above, Tenant shall not erect any exterior sign or any interior window or door signs visible from the exterior of the Premises without first obtaining the written consent of the Landlord. ARTICLE 11 - ------------------ CARE OF THE PREMISES BY TENANT ------------------------------ Tenant agrees not to commit or allow any waste to be committed on any portion of the Premises, and at the termination of this Lease agrees to deliver up the Premises to Landlord in as good condition as at the Commencement Date of this Lease, ordinary wear and tear excepted. ARTICLE 12 - ------------------ REPAIRS AND ALTERATIONS BY TENANT --------------------------------- 12.1 No Alteration, Additions, or Improvements Without Landlord's Consent. Tenant shall make no alterations, additions, or improvements to the Premises or any part thereof (hereinafter referred to as "Alterations") without obtaining the prior written consent of Landlord, which consent shall not be unreasonably withheld; provided, that Landlord's consent shall not be required where such Alterations (i) do not affect the structural components or equipment systems of the Building, (ii) do not require a building permit to perform, (iii) do not increase the load on the Building systems or structural components, (iv) are completed in accordance with all applicable laws, and (v) do not cost in excess of $32,000 in the aggregate to complete . Tenant shall submit any such request to Landlord at least thirty 30) days prior to the proposed commencement date of such work. Landlord may impose, as a condition to such consent, and at Tenant's sole cost, such requirements as Landlord may deem necessary in its judgement, including without limitation, the manner in which the work is done, a right of approval of the contractor by whom the work is to be performed and the times during which the work is to be accomplished, approval of all plans and specifications and the procurement of all licenses and permits. Landlord shall be entitled to post notices on and about the Premises with respect to Landlord's non-responsibility for mechanics' liens and Tenant shall not permit such notices to be defaced or removed. Tenant further agrees not to connect any apparatus, machinery or device to the Building systems, including electric wires, water pipes, fire safety, heating and mechanical systems, without the prior written consent of Landlord. 12.2 Completion of Lease Term. All Alterations to the Premises, including, by way of illustration but not by limitation, all counters, screens, grilles, special cabinetry work, partitions, paneling, carpeting, drapes or other window coverings and light fixtures, shall be deemed a part of the real estate and the property of Landlord and shall remain upon and be surrendered with the Premises as a part thereof without molestation, disturbance or injury at the end of the Lease Term, whether by lapse of time or otherwise, unless Landlord, at the time any such Alterations are approved by Landlord, notifies Tenant that Tenant shall be required to remove all or any of such Alterations at the end of the Lease Term, and in such event, Tenant shall promptly remove, as its sole cost and expense, such Alterations and restore the Premises to the condition in which the Premises were prior to the making of the same, reasonable wear and tear excepted. Any such removal, whether required or permitted by Landlord, shall be at Tenant's sole cost and expense, and Tenant shall restore the Premises to the condition in which the Premises were prior to the making of the same, reasonable wear and tear excepted. All movable partitions, machines, and equipment which are installed in the Premises by or for Tenant, without expense to Landlord, and can be removed without structural damage to or defacement of the Building or the Premises, and all furniture, furnishings and other articles of personal property owned by Tenant and located in the Premises (all of which are herein called "Tenant's Property") shall be and remain the property of Tenant and may be removed by it at any time during the Lease Term. However, if any of Tenant's Property is removed, Tenant shall repair or pay the cost of repairing any damage to the Building or the Premises resulting from such removal. All additions or improvements which are to be surrendered with the Premises shall be surrendered with the Premises, as a part thereof, at the end of the Lease Term or the earlier termination of this Lease. 12.3 Parties Performing Alteration, Repair, and Modification Work. If Landlord permits persons requested by Tenant to perform any alterations, repairs modifications, or additions to the Premises, then prior to the commencement of any such work, Tenant shall deliver to Landlord certificates issued by insurance companies qualified to do business in the state where the Premises are located evidencing that workmen's compensation, public liability insurance, and property damage insurance, all in amounts, with companies, and on forms satisfactory to Landlord, are in force and maintained by all such contractors and subcontractors engaged by Tenant to perform such work. All such policies shall name Landlord as an additional insured and shall provide that the same may not be canceled or modified without thirty (30) days' prior notice to Landlord. 12.4 Performance of Alteration, Repair, and Modification Work. Tenant, at its sole cost and expense, shall cause any permitted alterations, decorations, installations, additions, or improvements in or about the Premises to be performed in compliance with all applicable requirements of insurance bodies having jurisdiction, and in such manner as not to interfere with, delay, or impose any additional expense upon Landlord in the construction, maintenance, or operation of the Building, and so as to maintain harmonious labor relations in the Building. Prior to commencement of any construction, Tenant shall afford Landlord the opportunity to post a "notice of non-liability" of Landlord with respect to any mechanic's liens which may arise with respect to such work. ARTICLE 13 - ------------------ UTILITIES --------- Tenant, at Tenant's sole cost and expense, shall provide for electric current, heat, gas, ventilation and air conditioning, and janitorial service to the Premises, shall cause the Premises to be separately metered for all utilities contracted for directly by Tenant, and shall pay all charges for such services directly to the utility company or janitorial service providing such utilities or services. ARTICLE 14 - ------------------ LAWS AND REGULATIONS -------------------- 14.1 General. Landlord hereby represents and warrants to Tenant that Landlord shall cause the Building (excluding the Premises other than the Building Shell) to be constructed in accordance with all governmental laws, ordinances and regulations applicable to the Building at the time of the approval of the building permit for the Building by the City and County of Denver. Landlord further represents that it has received no notice from any governmental authority having jurisdiction over the Building of any pending or threatened land use, zoning, condemnation, eminent domain or other proceeding affecting the Building which would preclude Landlord's performance of its obligations under this Lease. Tenant, at its sole cost and expense, will promptly comply with all laws, statutes, ordinances, and governmental rules, regulations, or requirements now in force or in force after the Commencement Date, with the requirements of any board of fire underwriters or other similar body constituted now or after the date, with any direction or occupancy certificate issued pursuant to any law by any public officer or officers, as well as with the provisions of all recorded documents affecting the Premises, insofar as they relate to the condition, use, or occupancy of the Premises. 14.2 Hazardous Materials. a. For purposes of this Lease, "Hazardous Materials" means any explosives, radioactive materials, hazardous wastes, or hazardous substances, including without limitation substances defined as "hazardous substances" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C.ss.ss.9601-9657; the Hazardous Materials Transportation Act of 1975, 49 U.S.C.ss.ss.1801-1812; the Resource Conservation and Recovery Act of 1976, 42 U.S.C.ss.ss.6901-6987; or any other federal, state, or local statute, law, ordinance, code, rule, regulation, order, or decree regulating, relating to, or imposing liability or standards of conduct concerning hazardous materials, waste, or substances now or at any time hereafter in effect (collectively, "Hazardous Materials Laws"). Landlord hereby represents and warrants to Tenant that Landlord (i) shall not knowingly use any Hazardous Materials in the construction of the Building; (ii) has not released any Hazardous Materials on the real estate upon which the Building shall be constructed; and (iii) has received no notice from any governmental authority having jurisdiction over the Building that the Building (including the land included within the definition of "Building" contained in this Lease) is in violation of any Hazardous Materials Laws. b. Tenant will not cause or permit the storage, use, generation, or disposition of any Hazardous Materials in, on, or about the Premises or the project by Tenant, its agents, employees, or contractors; provided, however, that the consent of Landlord shall not be required for the use at the Premises by Tenant of the "Supplemental Equipment" described in Article 54 below or the standard cleaning supplies, toner for photocopying machines and other similar materials, in containers and quantities reasonably necessary for and consistent with normal and ordinary use by Tenant in the routine operation or maintenance of Tenant's office equipment or in the routine janitorial service, cleaning and maintenance of the Premises or as required for the normal use and operation of the Supplemental Equipment, provided that such Supplemental Equipment and any and all such Hazardous Materials are used, kept and maintained in strict compliance with all Hazardous Materials Laws. Tenant will not permit the Premises to be used or operated in a manner that may cause the Premises or the project to be contaminated by any Hazardous Materials in violation of any Hazardous Materials Laws. Tenant will immediately advise Landlord in writing of (1) any and all enforcement, cleanup, remedial, removal, or other governmental or regulatory actions instituted, completed, or threatened pursuant to any Hazardous Materials Laws relating to any Hazardous Materials affecting the Premises; and (2) all claims made or threatened by any third party against Tenant, Landlord, or the Premises relating to damage, contribution, cost recovery, compensation, loss, or injury resulting from any Hazardous Materials on or about the Premises. Without Landlord's prior written consent, Tenant will not take any remedial action or enter into any agreements or settlements in response to the presence or remediation of any Hazardous Materials in, on, or about the Premises. c. Tenant will be solely responsible for and will defend, indemnify and hold Landlord, its agents, and employees harmless from and against all claims, costs, and liabilities, including attorney fees and costs, arising out of or in connection with Tenant's breach of its obligations in this Article 14. Tenant will be solely responsible for and will defend, indemnify, and hold Landlord, its agents, and employees harmless from and against any and all claims, costs, and liabilities, including attorney fees and costs, arising out of or in connection with the removal, cleanup, and restoration work and materials necessary to return the Premises and any other property of whatever nature located in, on, or about the Building, to their condition existing prior to the introduction of Hazardous Materials by Tenant, its agents, employees or contractors. Tenant's obligations under this Article 14 will survive the expiration or other termination of this Lease. Without limiting the generality of the foregoing, Landlord agrees that Tenant shall not be liable for any Hazardous Materials introduced into, on or about the Building prior to the date Tenant first takes possession of the Premises. 14.3 Certain Insurance Risks. Tenant will not do or permit to be done any act or thing upon the Premises or the Building which would (i) jeopardize or be in conflict with fire insurance policies covering the Building or covering any fixtures and property in the Building; (ii) increase the rate of fire insurance applicable to the Building to an amount higher than it otherwise would be for general office use of the Building; or (iii) subject Landlord to any liability or responsibility for injury to any person or persons or to property by reason of any business or operation being carried on upon the Premises. ARTICLE 15 - ------------------ BUILDING RULES --------------- Tenant will comply with the rules of the Building adopted and altered by Landlord from time to time and will cause all of its agents, employees, invitees and visitors to do so; all changes to such rules will be sent by Landlord to Tenant in writing. The current Building Rules and Regulations, which may be modified from time to time by the Landlord in its sole but reasonable discretion, are attached hereto as Exhibit "E." Any rules and regulations imposed by Landlord after the date of this Lease shall be (i) reasonable, (ii) subject to the other provisions of this Lease, (iii) uniformly enforced, and (iv) unless related to the safety or welfare of tenants of the Building, effective only after Tenant has had at least thirty (30) days prior written notice of their enactment. ARTICLE 16 - ------------------ ENTRY BY LANDLORD ----------------- Tenant agrees to permit Landlord or its agents or representatives to enter into and upon any part of the Premises at all reasonable hours (and in emergencies at all times) to inspect the same, or to show the Premises to prospective purchasers, Mortgagees, tenants or insurers, to clean or make repairs, alterations or additions thereto, and Tenant shall not be entitled to any abatement or reduction of rent by reason thereof. ARTICLE 17 - ------------------ ASSIGNMENT AND SUBLETTING ------------------------- 17.1 Prohibition. Tenant shall not assign, sublease, transfer or encumber this Lease or any interest therein, without the consent of Landlord first being obtained, which consent will not be unreasonably withheld or delayed provided that: (1) Tenant provides written notice to Landlord at least 30 days prior to such assignment or subletting setting forth the details of the proposed assignment or sublease; (2) Landlord declines to exercise its rights under Section 17.2; (3) the proposed transferee (a "Transferee") is engaged in a business and the portion of the Premises will be used for the use permitted under Article 4 of this Lease and in a manner which is in keeping with the then standards of the Building and does not conflict with any exclusive use rights granted to any other tenant of the Building, and such use will not, in Landlord's reasonable opinion, materially increase parking or occupancy loads; (4) the Transferee has reasonable financial worth in light of the responsibilities involved; (5) Tenant is not in default at the time it makes its request; (6) the Transferee is not a tenant or currently negotiating a lease with Landlord in any building owned by Landlord adjacent to the Building; and (7) the rent to be paid by the Transferee is not less than 85% of the rental rate then being offered by Landlord for similar space in the Building. Any one or more (in the aggregate) transfers of more than a twenty percent (20%) interest in the Tenant shall be deemed to be an assignment under this Lease. Any attempted assignment or sublease by Tenant in violation of the terms and covenants of this Article 17 shall be void. Notwithstanding anything contained in this Lease to the contrary, Tenant may, without the prior consent of Landlord, assign this Lease or sublease all or any part of the Premises to an affiliate of Tenant or to any company into which Tenant may be merged or consolidated or that acquires substantially all of the assets of Tenant (an "Affiliated Transferee"). Any such Affiliated Transferee shall have a similar right to assign this Lease without the prior consent of Landlord; provided, that in the event of any assignment or sublease to or from an Affiliated Transferee, Tenant shall remain liable for the full and timely performance of the obligations of Tenant hereunder as contemplated by Section 17.4 below. An "affiliate" of Tenant shall mean any corporation which, directly or indirectly, controls, is controlled by or is under common control with Tenant or a successor corporation to Tenant by merger, consolidation or non-bankruptcy reorganization. The word "control" in this context, including in the context of "controlled by" or "under common control with," with respect to any corporation, partnership or association shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policy of a particular corporation, partnership or association, whether through the ownership of voting securities or by contract or otherwise. 17.2 Recapture. If Tenant requests Landlord's consent to an assignment of this Lease or subletting of all or part of the Premises, Landlord shall have the option (without limiting Landlord's other rights hereunder) of terminating this Lease upon thirty (30) days' notice. Landlord may then, at Landlord's option, lease space to the prospective assignee or subtenant. If Landlord should fail to notify Tenant in writing of its decision within a thirty (30) day period after Landlord is notified in writing of the proposed assignment or sublease, Landlord shall be deemed to have elected to keep this Lease in full force and effect. Notwithstanding the foregoing, not later than fifteen (15) days after Tenant's receipt of Landlord's recapture notice, Tenant shall have the right to withdraw Tenant's request for assignment or subletting by notifying Landlord in writing of Tenant's intent to withdraw such request, and this Lease shall remain in full force and effect as though Tenant had never submitted such request. 17.3 Reserved. 17.4 Tenant Remains Liable. No assignment, sublease or other transfer consented to by Landlord, shall release Tenant or change Tenant's primary liability to pay the Rent and to perform all other obligations of Tenant under this Lease. Upon the occurrence of any default under this Lease, Landlord may proceed directly against Tenant without the necessity of exhausting any remedies against any subtenant or assignee. Upon termination of this Lease, any permitted subtenant shall, at Landlord's option, attorn to Landlord and shall pay all Rent directly to Landlord. Landlord's acceptance of Rent from any other person shall not constitute a waiver of any provision of this Article 17. Consent to one transfer shall not constitute consent to any subsequent transfer. Landlord may consent to subsequent assignments or modifications of this Lease by Tenant's transferee, without notifying Tenant or obtaining its consent. Such action shall not relieve Tenant of its liability under this Lease. 17.5 No Merger. No merger shall result from Tenant's sublease of the Premises under this Article 17, Tenant's surrender of this Lease or the termination of this Lease in any other manner. In any such event, Landlord may terminate any or all subtenancies or succeed to the interest of Tenant as sublandlord thereunder. ARTICLE 18 - ------------------ LIENS ----- Tenant will not permit any mechanic's lien(s) or other liens to be placed upon the Premises or the Building and nothing in this Lease shall be deemed or construed in any way as constituting the consent or request of Landlord, express or implied, by inference or otherwise, to any person for the performance of any labor or the furnishing of any materials to the Premises, or any part thereof, nor as giving Tenant any right, power, or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to any mechanics' or other liens against the Premises. If, in connection with any work being performed by Tenant or any subtenant, any mechanic's lien or other lien or charge shall be filed or made against the Premises, the Building or any improvements therein or any part thereof, or if any such lien or charge shall be filed or made against Landlord, as owner, then Tenant, at Tenant's cost and expense, shall cause the same to be canceled and discharged of record not later than thirty (30) days after such lien or charge shall have been filed or made (but in any event prior to foreclosure) by payment thereof, by filing a bond or otherwise, and shall also defend any action, suit or proceeding which may be brought for the enforcement of such lien or charge. Tenant shall also pay any damages, costs and expenses, including reasonable attorney's fees, suffered or incurred by Landlord in connection with such action, suit or proceeding, and shall satisfy and discharge any judgment entered therein within thirty (30) days from the entering of such judgment by payment thereof or filing of a bond or otherwise, unless Tenant elects to contest the judgment, in which event Tenant shall (i) within such thirty (30) day period, provide Landlord with a bond in an amount equal to 125% of the amount of such lien or claim, (ii) contest such lien or claim in good faith by appropriate proceedings, and (iii) pay promptly any final adverse judgment entered in any such proceeding. In the event that a lien is attached to the Premises and not removed by Tenant in accordance with the foregoing, then, in addition to any other right or remedy of Landlord, Landlord may, but shall not be obligated to, discharge the same. Any amount paid by Landlord for any of the aforesaid purposes and any expenses incurred by Landlord in connection with any such lien shall be paid by Tenant to Landlord on demand as Additional Rent. ARTICLE 19 - ------------------ INSURANCE --------- 19.1 Property Insurance. Landlord shall maintain property coverage insurance on the Building Shell and appurtenant structures in the Common Areas in such amounts as Landlord and any Mortgagees may deem necessary or appropriate, but in no event less than the full replacement cost of the Building. Such insurance shall be maintained at the expense of Landlord (as a part of Operating Expenses), and payments for losses thereunder shall be made solely to Landlord or the Mortgagees as their respective interests shall appear. Tenant shall obtain and keep in force at all times during the Lease Term, a policy or policies of insurance covering loss or damage to all of the improvements, betterments, income and business contents located within the Premises other than the Building Shell (including all improvements constructed pursuant to Exhibit "D") in the amount of the full replacement value thereof as ascertained by the Tenant's insurance carrier, as the same may exist from time to time, against all perils normally covered in an "all risk" policy (including the perils of flood and surface waters), as such term is used in the insurance industry. 19.2 Liability Insurance. Tenant shall, at Tenant's expense, maintain a policy of Commercial General Liability insurance insuring Landlord and Tenant against liability arising out of the ownership, use, occupancy or maintenance of the Premises. Such insurance shall be on an occurrence basis providing single-limit coverage in an amount not less than One Million Dollars ($1,000,000) per occurrence. The initial amount of such insurance shall be subject to periodic increase upon reasonable demand by Landlord based upon inflation, increased liability awards, recommendation of professional insurance advisers, and other relevant factors. However, the limits of such insurance shall not limit Tenant's liability nor relieve Tenant of any obligation hereunder. Landlord shall be named as an additional insured on said policies and the policies shall contain the following provision: "Such insurance as afforded by this policy for the benefit of Landlord shall be primary as respects any claims, losses or liabilities arising out of the use of Premises by the Tenant or by Tenant's operation and any insurance carried by Landlord shall be excess and non-contributing." The policy shall insure Tenant's performance of the indemnity provisions of Articles 14 and 20. 19.3 Requirements for Insurance Policies. Insurance required to be maintained by Tenant hereunder shall be in companies holding a "General Policyholders' Rating" of A or better and a "financial rating" of 10 or better, as set forth in the most current issue of "Best's Insurance Guide." Tenant shall promptly deliver to Landlord, within thirty (30) days of the Commencement Date, original certificates evidencing the existence and amounts of such insurance. No such policy shall be cancelable or subject to reduction of coverage with respect to the Premises except after thirty (30) days prior written notice to Landlord. Tenant shall, within fifteen (15) days prior to the expiration, cancellation or reduction of such policies, furnish Landlord with renewals or "binders" thereof. Tenant shall not do or permit to be done anything which shall invalidate the insurance policies required under this Lease. 19.4 Waiver of Subrogation Rights. Tenant and Landlord shall obtain from the issuer of the insurance policies referred to in Section 19.1 a waiver of subrogation provision in said policies and Tenant and Landlord hereby release, relieve and waive any and all rights of recovery against Landlord or Tenant, or against the employees, officers, agents and representatives of Landlord or Tenant, for loss or damage arising out of or incident to the perils insured against under Section 19.1 which perils occur in, on or about the Premises or the Building, whether due to the negligence of Landlord or Tenant or their agents, employees, contractors or invitees. The extent of the waiver described in the immediately preceding sentence is limited to the extent of insurance carried by Landlord and Tenant pursuant to Section 19.1 of this Lease. ARTICLE 20 - ------------------ INDEMNITY --------- 20.1 Indemnity by Tenant. Tenant shall indemnify and hold harmless Landlord and all agents, servants and employees of Landlord from and against all claims, losses, damages, liabilities, expenses (including reasonable attorney fees), penalties and charges arising from or in connection with (i) Tenant's use of the Premises during the Lease Term, or (ii) the conduct of Tenant's business, or (iii) any activity, work or things done, permitted or suffered by Tenant in or about the Premises during the Lease Term. Tenant shall further indemnify and hold harmless Landlord from and against any and all claims, loss, damage, liability, expense (including reasonable attorney fees), penalty or charge arising from any default in the performance of any obligation on Tenant's part to be performed under the terms of this Lease, or arising from any negligence of Tenant, or any of Tenant's agents, contractors, or employees, and from and against all costs, attorney fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon. If any action or proceeding be brought against Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall defend the same at Tenant's expense by legal counsel reasonably satisfactory to Landlord. Tenant, as a material part of its consideration to Landlord, hereby assumes all risk of damage to property or injury to persons in or upon the Premises arising from any cause and Tenant hereby waives all claims in respect thereof against Landlord. Notwithstanding the foregoing, Tenant shall not be required to defend, save harmless or indemnify Landlord from any liability for injury, loss, accident or damage to any person or property resulting from Landlord's negligence or willful acts or omissions, or those of Landlord's officers, agents, contractors or employees. Tenant's indemnity is not intended to nor shall it relieve any insurance carrier of its obligations under policies required to be carried by Tenant pursuant to the provisions of this Lease to the extent that such policies cover the results of negligent acts or omissions of Landlord, its officers, agents, contractors or employees, or the failure of Landlord to perform any of its obligations under this Lease. 20.2 Indemnity by Landlord. Landlord shall indemnify and hold harmless Tenant and all agents, servants and employees of Tenant from and against all claims, losses, damages, liabilities, expenses (including reasonable attorney fees), penalties and charges arising from or in connection with any damage to any person or property resulting solely from the gross negligence or intentional acts of Landlord or from Landlord's failure to comply with any governmental laws, ordinances or regulations applicable to the Building (but excluding the Premises) which Landlord is required to comply with under this Lease, and from and against all costs, reasonable attorney fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon. If any action or proceeding be brought against Tenant by reason of any such claim, Landlord, upon notice from Tenant, shall defend the same at Landlord's expense by legal counsel reasonably satisfactory to Tenant. Notwithstanding the foregoing, Landlord shall not be required to defend, save harmless or indemnify Tenant from any liability for injury, loss, accident or damage to any person or property resulting from Tenant's negligence or willful acts or omissions, or those of Tenant's officers, agents, contractors or employees. ARTICLE 21 - ------------------ DAMAGE OR DESTRUCTION TO BUILDING --------------------------------- 21.1 Partial Destruction. In the event that the Premises or the Building are damaged by fire or other insured casualty and the insurance proceeds have been made available therefor by the holder or holders of any mortgages or deeds of trust covering the Building, the damage shall be repaired by and at the expense of Landlord to the extent of such insurance proceeds available therefor, provided such repairs and restoration can, in Landlord's reasonable opinion, be made within one hundred eighty (180) days after the occurrence of such damage without the payment of overtime or other premiums, and until such repairs and restoration are completed, the Base Rent shall be abated in proportion to the part of the Premises which is unusable by Tenant in the conduct of its business, as may be reasonably determined by Landlord (but there shall be no abatement of Base Rent by reason of any portion of the Premises being unusable for a period equal to five (5) business days or less). Landlord agrees to notify Tenant within sixty (60) days after such casualty if it estimates that it will be unable to repair and restore the Premises within said one hundred eighty (180) day period. Such notice shall set forth the approximate length of time Landlord estimates will be required to complete such repairs and restoration. Notwithstanding anything to the contrary contained herein, if Landlord cannot or estimates it cannot make such repairs and restoration within said one hundred eighty (180) day period, then Tenant may, by written notice to Landlord, cancel this Lease, provided such notice is given to Landlord within fifteen (15) days after Landlord notifies Tenant of the estimated time for completion of such repairs and restoration. Notwithstanding the preceding sentence, Tenant may not cancel this Lease as hereinabove stated if the damage to the Premises or the Building is in whole or in part the result of the act, omission, fault, or negligence of Tenant, its agents, contractors, employees, licensees, or invitees. Except as provided in this Article 21, there shall be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenant's business or property arising from the making of any such repairs, alterations, or improvements in or to the Building, Premises, or fixtures, appurtenances, and equipment. Tenant understands that Landlord will not carry insurance of any kind on Tenant's property, including furniture and furnishings, or on any fixtures or equipment removable by Tenant under the provisions of this Lease, or any improvement installed in the Premises by or on behalf of Tenant, and that Landlord shall not be obligated to repair any damage thereto or replace the same. 21.2 Total Destruction. In case the Building throughout shall be so injured or damaged, whether by fire or otherwise (though the Premises may not be affected, or if affected, can be repaired within said one hundred eighty (180) day period) that Landlord, within sixty (60) days after the happening of such injury, shall decide not to reconstruct or rebuild the Building, then notwithstanding anything contained herein to the contrary, upon notice in writing to that effect given by Landlord to Tenant within said sixty (60) days, Tenant shall pay the rent, properly apportioned up to date of such casualty, this Lease shall terminate from the date of delivery of said written notice, and both parties hereto shall be released and discharged from all further obligations hereunder (except those obligations which expressly survive termination of the Lease term). A total destruction of the Building shall automatically terminate this Lease. ARTICLE 22 - ------------------ CONDEMNATION ------------ If the whole or substantially the whole of the Building or the Premises shall be taken for any public or quasi-public use, by right of eminent domain or otherwise or shall be sold in lieu of condemnation, then this Lease shall terminate as of the date when physical possession of the Building or the Premises is taken by the condemning authority. If less than the whole or substantially the whole of the Building or the Premises is thus taken or sold, Landlord (whether or not the Premises are affected thereby) or Tenant (if the Premises are materially affected thereby) may terminate this Lease by giving written notice thereof to the other party, in which event this Lease shall terminate as of the date when physical possession of such portion of the Building or Premises is taken by the condemning authority. If the Lease is not so terminated upon any such taking or sale, the Base Rent payable hereunder shall be diminished by an equitable amount, and Landlord shall, to the extent Landlord deems feasible, restore the Building and the Premises to substantially their former condition, but such work shall not exceed the scope of the work done by Landlord in originally constructing the Building and installing Building Standard Improvements in the Premises, nor shall Landlord in any event be required to spend for such work an amount in excess of the amount received by Landlord as compensation for such taking. All amounts awarded upon a taking of any part or all of the Building or the Premises shall belong to Landlord, and Tenant shall not be entitled to and expressly waives all claims to any such compensation. Notwithstanding anything contained herein Tenant may bring separate action against the condemning authority to recover relocation and business interruption expenses incurred, and for the value personal property, fixtures and other improvements lost, by Tenant as a result of the condemning authority's actions. ARTICLE 23 - ------------------ DAMAGES FROM CERTAIN CAUSES --------------------------- Landlord shall not be liable to Tenant for any loss or damage to any property or person occasioned by theft, fire, earthquake, any other act of God, public enemy, injunction, riot, strike, insurrection, war, court order, requisition, or order of governmental body or authority or by any other cause beyond the control of Landlord. In addition, Landlord shall not be liable for any damage or inconvenience which may arise through repair or alteration of any part of the Building or Premises. ARTICLE 24 - ------------------ EVENTS OF DEFAULT ----------------- The following events (each an "Event of Default") shall constitute a default by Tenant hereunder: a. If Tenant shall fail to pay when due any installment of Base Rent, Additional Rent, or any other amounts payable hereunder within five (5) days after the due date therefor; b. If this Lease or the estate of Tenant hereunder shall be transferred to or shall pass to or devolve upon any other person or party in violation of the provisions of this Lease, except as permitted herein; c. If this Lease or the Premises or any part thereof shall be taken upon execution or by other process of law directed against Tenant, or shall be taken upon or subject to any attachment at the instance of any creditor or claimant against Tenant, and said attachment shall not be discharged or disposed of within fifteen (15) days after the levy thereof; d. If Tenant shall file a petition in bankruptcy or insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or under any insolvency act of any state, or shall voluntarily take advantage of any such law or act by answer or otherwise, or shall be dissolved or shall make an assignment for the benefit of creditors; e. If involuntary proceedings under any such bankruptcy law or insolvency act or for the dissolution of Tenant shall be instituted against Tenant, or a receiver or trustee shall be appointed of all or substantially all of the property of Tenant, and such proceedings shall not be dismissed or such receivership or trusteeship vacated within ninety (90) days after such institution or appointment; f. If Tenant shall fail to take possession of the Premises within thirty (30) days of the Commencement Date; g. If Tenant shall abandon the Premises; h. If Tenant shall fail to perform any of the other agreements, terms, covenants, or conditions hereof on Tenant's part to be performed (other than the obligation to pay Rent or any other charges payable hereunder), and such nonperformance shall continue for a period of fifteen (15) days after notice thereof by Landlord to Tenant; provided, however, that if Tenant cannot reasonably cure such nonperformance within fifteen (15) days, Tenant shall not be in default if it commences cure within said fifteen (15) days and diligently pursues the same to completion; i. If Tenant shall fail to obtain a release of any mechanic's lien, as required herein; j. If a guarantor of this Lease, if any, or a general partner of Tenant (if Tenant is a general or limited partnership), becomes a debtor under any state or federal bankruptcy proceedings, or becomes subject to receivership or trusteeship proceedings, whether voluntary or involuntary; except in the case of a guarantor, Tenant shall not be in default if a substitute guarantor, with creditworthiness and financial abilities acceptable to Landlord in light of the responsibilities of Tenant hereunder, and otherwise acceptable to Landlord, is provided to Landlord within fifteen (15) days; k. If fifty percent (50%) or more of the personal property of Tenant is seized, subject to levy or attachment, or similarly repossessed or removed from the Premises; or l. Tenant shall fail to deliver an Estoppel Certificate or Subordination Agreement within the time periods set forth in this Lease. ARTICLE 25 - ------------------ LANDLORD'S REMEDIES ------------------- 25.1 Landlord's Remedies. Upon the occurrence of any Event of Default, Landlord shall have the right, at its election, then or at any time thereafter either: (i) to give Tenant written notice of Landlord's intention to terminate this Lease on the date such notice is given or on any later date specified therein, whereupon, on the date specified in such notice, Tenant's right to possession of the Premises shall cease and this Lease shall thereupon be terminated; provided, however, that all of Tenant's obligations, including, but not limited to, payment of the amount of Rent and other obligations reserved in this Lease for the balance of the term hereof, shall immediately be accelerated and due and payable (subject to Landlord's obligation pursuant to Section 25.10 below to mitigate its damages); or (ii) to re-enter and take possession of the Premises or any part thereof and repossess the same as Landlord's former estate and expel Tenant and those claiming through or under Tenant, and remove the effects of both or either, using such force for such purposes as may be reasonably necessary, without being liable for prosecution thereof, without being deemed guilty of any manner of trespass, and without prejudice to any remedies for arrears of rent or preceding breach of covenants or conditions, all in accordance with and subject to applicable Laws. Should Landlord elect to re-enter the Premises as provided in this Paragraph, Landlord shall provide Tenant 3 days prior notice as required by Colorado Law. Should Landlord elect to re-enter the Premises as provided in this Paragraph 25.1(ii) or should Landlord take possession pursuant to legal proceedings or pursuant to any notice provided for by law, Landlord may, from time to time, without terminating this Lease, relet the Premises or any part thereof in Landlord's or Tenant's name, but for the account of Tenant, for such term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the term of this Lease) and on such conditions and upon such other terms (which may include concessions of free rent and alteration and repair of the Premises) as Landlord, in its reasonable discretion, may determine, and Landlord may collect and receive the rents therefor. Landlord shall in no way be responsible or liable for any failure to relet the Premises or any part thereof or for any failure to collect any rent due upon such reletting. No such re-entry or taking possession of the Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a written notice of such intention be given to Tenant. No notice from Landlord hereunder or under a forcible entry and detainer statute or similar law shall constitute an election by Landlord to terminate this Lease unless such notice specifically so states. Landlord reserves the right following any such re-entry and/or reletting, to exercise its right to terminate this Lease by giving Tenant such written notice, in which event, this Lease will terminate as specified in said notice. 25.2 Effects of Landlord's Election to Take Possession of Premises. In the event that Landlord does not elect to terminate this Lease as permitted in Section 25.1(i) hereof, but on the contrary, elects to take possession as provided in Section 25.1(ii), Tenant shall pay to Landlord (i) the Rent and other sums as herein provided, which would be payable hereunder if such repossession had not occurred, less (ii) the net proceeds, if any, of any reletting of the Premises after deducting all Landlord's expenses in connection with such reletting, including, without limitation, all repossession costs, brokerage commissions, legal expenses, attorney's fees, expenses of employees, alteration and repair costs, and expenses of preparation for such reletting. If, in connection with any reletting, the new lease term extends beyond the existing Lease Term, or the premises covered thereby include other premises not part of the Premises, a fair apportionment of the rent received from such reletting and the expenses incurred in connection therewith as provided aforesaid will be made in determining the net proceeds from such reletting. Tenant shall pay such rent and other sums to Landlord monthly on the days on which the Rent would have been payable hereunder if possession had not been taken. 25.3 Effect of Landlord's Election to Terminate the Lease. In the event this Lease is terminated, Landlord shall be entitled to recover forthwith against Tenant, as damages for loss of the bargain and not as a penalty, an aggregate sum which, at the time of such termination of this Lease, represents the excess, if any, of the aggregate of the Rent and all other sums payable by Tenant hereunder that would have accrued for the balance of the Lease Term over the aggregate rental value of the Premises (such rental value to be computed on the basis of a tenant paying not only a rent to Landlord for the use and occupation of the Premises, but also such other charges as are required to be paid by Tenant under the terms of this Lease) for the balance of such Lease Term, both discounted to present worth at the rate of eight percent (8%) per annum. Alternatively, at Landlord's option, Tenant shall remain liable to Landlord for damages in an amount equal to the rent and other sums arising under the Lease for the balance of the Lease Term had the Lease not been terminated, less the net proceeds, if any, from any subsequent reletting, after deducting all expenses associated therewith and as enumerated above. Landlord shall be entitled to receipt of such amounts from Tenant monthly on the days on which such sums would have otherwise been payable. Landlord's rights pursuant to the foregoing provisions shall be subject to Landlord's obligation pursuant to Section 25.10 below to mitigate its damages. 25.4 Suits for Recovery by Landlord. Suit or suits for the recovery of the amounts and damages set forth above may be brought by Landlord, from time to time, at Landlord's election, and nothing herein shall be deemed to require Landlord to await the date whereon this Lease or the Lease Term would have expired had there been no such default by Tenant or no such termination, as the case may be. 25.5 Rents, Issues, and Profits from Subleases. After an Event of Default by Tenant, Landlord may sue for or otherwise collect all Rents, issues, and profits payable under all subleases on the Premises, including those past due and unpaid. 25.6 Landlord's Entry Upon the Premises and Other Remedies. After an Event of Default by Tenant, Landlord may, without terminating this Lease, enter upon the Premises without being liable for prosecution of any claim for damages, without being deemed guilty of any manner of trespass, and without prejudice to any other remedies, and do whatever Tenant is obligated to do under the terms of this Lease. Tenant agrees to reimburse Landlord on demand for any expenses which Landlord may incur in effecting compliance with the Tenant's obligations under this Lease. Further, Tenant agrees that Landlord shall not be liable for any damages resulting to Tenant from effecting compliance with Tenant's obligations under this subparagraph unless caused by the gross negligence or willful misconduct of Landlord. 25.7 No Waivers Unless Express. No failure by Landlord to insist upon the strict performance of any agreement, term, covenant, or condition hereof or to exercise any right or remedy consequent upon a breach thereof, and no acceptance of full or partial rent during the continuance of any such breach, shall constitute a waiver of any such breach of such agreement, term, covenant, or condition. No agreement, term, covenant, or condition hereof to be performed or complied with by Tenant, and no breach thereof, shall be waived, altered, or modified except by written instrument executed by Landlord. No waiver of any breach shall affect or alter this Lease, but each and every agreement, term, covenant, and condition hereof shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. Notwithstanding any unilateral termination of this Lease, this Lease shall continue in full force and effect as to any provisions hereof which, by the express terms contained herein, require observance or performance of Landlord or Tenant subsequent to termination. 25.8 Lease Not a Limitation of Remedies. Nothing contained in this Section shall limit or prejudice the right of Landlord to prove and obtain as liquidated damages in any bankruptcy, insolvency, receivership, reorganization, or dissolution proceeding, an amount equal to the maximum allowed by any statute or rule of law governing such proceeding and in effect at the time when such damages are to be proved, whether or not such amount be greater, equal to, or less than the amounts recoverable, either as damages or Rent, referred to in any of the provisions of this Section. 25.9 Default Interest Rate, Administrative Charge, and Other Matters. Any Rent or other amounts owing to Landlord hereunder which are not paid within five (5) days of the date they are due, shall thereafter bear interest from the due date at the rate of eighteen percent (18%) per annum ("Default Interest Rate") until paid. Similarly, any amounts paid by Landlord to cure any default of Tenant or to perform any obligation of Tenant, shall, if not repaid by the Tenant within five (5) days of demand by Landlord, thereafter bear interest from the date paid by Landlord at the Default Interest Rate until paid. In addition to the foregoing, Tenant shall pay to Landlord whenever any Base Rent, Additional Rent, or any other sums due hereunder remain unpaid more than five (5) days after the due date thereof, an administrative charge to compensate Landlord for the costs and expenses associated with handling a delinquent account equal to five percent (5%) of the amount due. Further, upon an Event of Default by Tenant, in addition to all other rights and remedies, Landlord shall be entitled to receive from Tenant all sums, the payment of which may previously have been waived or abated by Landlord, or which may have been paid by Landlord pursuant to any agreement to grant Tenant a rental abatement or other monetary inducement or concession, including, but not limited to, any tenant finish allowance, together with interest thereon from the date or dates such amounts were paid by Landlord or would have been due from Tenant but for the abatement, at the Default Interest Rate, until paid; it being understood and agreed that such concession or abatement was made on the condition and basis that Tenant fully perform all obligations and covenants under the Lease for the entire term. Landlord's acceptance of any late charge or interest shall not constitute a waiver of Tenant's default with respect to the overdue amount nor prevent Landlord from exercising any of the other rights and remedies available to Landlord under this Lease or any law now or hereafter in effect. 25.10 Remedies Cumulative, Costs of Collection; Waiver of Jury Trial. Each right and remedy provided for in this Lease shall be cumulative and shall be in addition to every other right or remedy provided for in this Lease nor or hereafter existing at law or in equity or by statute or otherwise, including, but not limited to, suits for injunctive or declaratory relief and specific performance. The exercise or commencement of the exercise by Landlord of any one or more of the rights or remedies provided for in this Lease now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or subsequent exercise by Landlord of any or all other rights or remedies provided for in this Lease, or now or hereafter existing at law or in equity or by statute or otherwise. Without limitation of the foregoing, Landlord agrees to use commercially reasonable efforts to mitigate its damages arising as a result of a default by Tenant under this Lease. All costs incurred by Landlord in connection with collecting any amounts and damages owing by Tenant pursuant to the provisions of this Lease or by either party to enforce any provision of this Lease, including, by way of example, but not limitation, reasonable attorneys' fees from the date any such matter is turned over to an attorney, shall also be recoverable by the prevailing party in any such enforcement action. Landlord from Tenant. Landlord and Tenant agree that any action or proceeding arising out of this Lease shall be heard by a court sitting without a jury and thus hereby waive all rights to a trial by jury. ARTICLE 26 - ------------------ LANDLORD'S DEFAULT ------------------ Landlord shall be in default hereunder in the event Landlord has not begun and pursued with reasonable diligence the cure of any failure of Landlord to meet its obligations hereunder within thirty (30) days' of receipt by Landlord of written notice from Tenant of the alleged failure to perform. Such notice shall be ineffective unless a copy is simultaneously also delivered in the manner required in this Lease to any Mortgagee, provided that prior to such notice Tenant has been notified (by way of notice of Assignment of Rents and Leases, or otherwise), of the address of a Mortgagee. If Landlord fails to cure such default within the time provided, then Mortgagee shall have an additional 30 days following a second notice from Tenant or, if such default cannot be cured within that time, such additional time as may be necessary provided within such 30 days, Mortgagee commences and diligently pursues a cure (including commencement of foreclosure proceedings if necessary to effect such cure). Tenant's sole remedy will be equitable relief or actual damages as described below, but in no event is Landlord or any Mortgagee responsible for consequential damages or lost profit incurred by Tenant as a result of any default by Landlord. In no event shall Tenant have the right to terminate or rescind this Lease as a result of Landlord's default as to any covenant or agreement contained in this Lease or as a result of the breach of any promise or inducement hereof, whether in the Lease or elsewhere. If Landlord fails to (i) discharge fully any of its obligations imposed by a mortgage that is superior to this Lease, or (ii) pay an Real Property Taxes affecting the Premises, or (iii) make any repairs required under this Lease or under applicable Laws, then Tenant may (but will not be required to), after written notice to Landlord of its intent to do so, discharge such obligations, as the case may be. If Tenant elects to discharge such obligations, Landlord shall reimburse Tenant for all out-of-pocket, third party costs incurred by Tenant to satisfy such obligations within thirty (30) days after Landlord's receipt of an itemized invoice therefore. In the event Landlord does not timely reimburse Tenant for such costs, Tenant shall not have any right to offset Rent unless and until it has received a judgment from a court of competent jurisdiction which determines that Landlord was obligated to discharge such obligations, pay such Real Property Taxes or make such repairs and Landlord does not, within thirty (30) days after the issuance of the court's order, either (1) post the required bond for appeal, or (2) pay the total damages awarded by the court (or otherwise remedy the default, as applicable); provided, that if Landlord fails to take either such action, Tenant shall have the right to an abatement of Rent only to the extent necessary to satisfy such judgment. Tenant hereby covenants that, prior to the exercise of any such remedies, it will give any Mortgagee notice and a reasonable time to cure any default by Landlord. ARTICLE 27 - ------------------ PEACEFUL ENJOYMENT ------------------ Tenant shall, and may peacefully have, hold, and enjoy the Premises, subject to the other terms hereof, provided that Tenant pays the Rent and other sums herein recited to be paid by Tenant and performs all of Tenant's covenants and agreements herein contained. This covenant and any and all other covenants of Landlord shall be binding upon Landlord and its successors only with respect to breaches occurring during its or their respective periods of ownership of Landlord's interest hereunder. ARTICLE 28 - ------------------ HOLDING OVER ------------ In the event of holding over by Tenant after the expiration or other termination of this Lease or in the event Tenant continues to occupy the Premises after the termination of Tenant's right of possession pursuant to Article 25 above, Tenant shall, throughout the entire holdover period, pay rent equal to one hundred fifty percent (150%) the Base Rent and Additional Rent which would have been applicable had the term of this Lease continued through the period of such holding over by Tenant. If Tenant remains in possession of all or any part of the Premises after the expiration of the Lease Term, with the express written consent of Landlord: (i) such tenancy will be deemed to be a periodic tenancy from month-to-month only; (ii) such tenancy will not constitute a renewal or extension of this Lease for any further term; and (iii) such tenancy may be terminated by Landlord upon the earlier of thirty (30) days' prior written notice or the earliest date permitted by law. Such month-to-month tenancy will be subject to every other term, condition, and covenant contained in this Lease including the Base Rent and Additional Rent provisions. Nothing contained in this Article 28 shall be construed as consent by Landlord to any holding over of the Premises by Tenant, and Landlord expressly reserves the right to require Tenant to surrender possession of the Premises to Landlord upon the expiration or earlier termination of this Lease. If Tenant fails to surrender the Premises upon the expiration or earlier termination of this Lease despite demand to do so by Landlord, Tenant shall indemnify and hold Landlord harmless from all loss or liability, including, without limitation, any claim made by any succeeding tenant founded on or resulting from such failure to surrender. ARTICLE 29 - ------------------ SUBORDINATION TO MORTGAGE ------------------------- Tenant accepts this Lease subject and subordinate to any mortgage, deed of trust or other lien presently existing or hereafter arising upon the Premises, upon the Building as a whole, and to any renewals, refinancing and extensions thereof, but Tenant agrees that any such Mortgagee shall have the right at any time to subordinate such mortgage, deed of trust or other lien to this Lease on such terms and subject to such conditions as such Mortgagee may deem appropriate in its discretion. Tenant agrees within fifteen (15) days after request therefore to execute a subordination and non-disturbance agreement in the form of agreement attached hereto as Exhibit I or such similar agreement as Landlord may reasonably request. In the --------- event that any mortgage or deed of trust is foreclosed or conveyance in lieu of foreclosure is made for any reason, Tenant shall, if requested by the Mortgagee, attorn to and become the Tenant of the successor-in-interest to Landlord and in such event Tenant hereby waives its right under any current or future law which gives or purports to give Tenant any right to terminate or otherwise adversely affect this Lease and the obligations of Tenant hereunder. If in connection with obtaining construction, interim or permanent financing for the Building, the lender shall request modifications to this Lease as a condition to such financing, Tenant will not withhold or delay its consent thereto, provided that such modifications do not increase the obligations of Tenant hereunder and do not otherwise materially adversely affect Tenant's rights hereunder. Tenant's failure to timely comply with the foregoing requirements shall constitute a default under this Lease for which Tenant shall not be entitled to any cure period, and in addition to all other remedies to which Landlord may be entitled under this Lease with respect to a Tenant default, Tenant shall be liable to Landlord for all damages, consequential or otherwise, incurred by Landlord as a result of such default. Notwithstanding the foregoing, any subordination by Tenant shall be made only on the condition that the Mortgagee agrees in writing that Tenant's rights under this Lease shall not be disturbed by such Mortgagee as long has Tenant has paid all Rent and other sums then due and payable by Tenant and is otherwise not in default under this Lease beyond any applicable cure period. ARTICLE 30 - ------------------ Reserved ARTICLE 31 - ------------------ BANKRUPTCY OR INSOLVENCY ------------------------ 31.1 Deemed Rejection of Lease. Subject to the provisions of Section 24 (d) and (e) above, if Tenant becomes a debtor under Chapter 7 of the United States Bankruptcy Code (the "Bankruptcy Code"), or in the event that a petition for reorganization or adjustment of debts is filed concerning the Tenant under Chapter 11 or Chapter 13 of the Bankruptcy Code, or a proceeding filed under Chapter 7 is transferred to Chapter 11 or 13, the "Trustee" or the Tenant, as "Debtor-in-Possession," shall be deemed to have rejected this Lease. No election by the Trustee or Debtor-in-Possession to assume this Lease shall be effective unless each of the following conditions, which Landlord and Tenant hereby acknowledge to be commercially reasonable in the context of a bankruptcy proceeding, has been satisfied, and the Landlord has so acknowledged in writing: (i) the Trustee or Debtor-in-Possession has cured, or has provided the Landlord "adequate assurance" (as hereinafter defined) that from the date of such assumption the Trustee or Debtor-In-Possession will promptly cure, all monetary and non-monetary defaults under the Lease; (ii) the Trustee or Debtor-in-Possession has compensated, or has provided to the Landlord adequate assurance that within ten (10) days of the date of assumption the Landlord will be compensated, for any pecuniary loss incurred by the Landlord arising from default of the Tenant, the Trustee, or the Debtor-in-Possession as recited in the Landlord's written statement of pecuniary loss sent to the Trustee or Debtor-in-Possession; and (iii) the Trustee or Debtor-in-Possession has provided the Landlord with adequate assurance of future performance of each of the Tenant's, the Trustee's, or the Debtor-in-Possession's obligations under this Lease; provided, however, that: (x) the Trustee or Debtor-in-Possession shall also deposit with the Landlord, as security for the timely payment of rent and other sums due hereunder, an amount equal to four (4) months Base Rent, Additional Rent, and other monetary charges accruing under this Lease; and (y) the obligations imposed upon the Trustee or Debtor-in-Possession shall continue with respect to the Tenant or any assignee of this Lease after the completion of the bankruptcy proceedings. 31.2 Adequate Assurance. For purposes of this Section, Landlord and Tenant acknowledge that, in the context of the bankruptcy proceedings of the Tenant, at a minimum, "adequate assurance" shall mean: (i) the Trustee or Debtor-in-Possession will continue to have sufficient unencumbered assets after the payment of all secured obligations and administrative expenses to assure the Landlord that the Trustee or Debtor-in-Possession will have sufficient funds to fulfill all of the obligations of Tenant under this Lease; or (ii) the Bankruptcy Court shall have entered an order segregating sufficient cash payable to the Landlord, and the Trustee or Debtor-in-Possession shall have granted to the Landlord a valid and perfected first lien and security interest or mortgage in property of the Tenant, the Trustee, or the Debtor-in-Possession, acceptable as to value and kind to the Landlord, in order to secure to the Landlord the obligation of the Tenant, Trustee, or Debtor-in-Possession to cure the monetary or non-monetary defaults under the Lease within the time period set forth above. 31.3 Lease Assignments in Bankruptcy Proceedings. The following conditions shall apply to any assignments of this Lease in bankruptcy proceedings if the Trustee or Debtor-in-Possession has assumed this Lease and elects to assign the Lease to any other person, such interest or estate of Tenant in this Lease may be so assigned only if the Landlord has acknowledged in writing that the intended assignee can provide to the Landlord "adequate assurance of future performance" (as herein defined) of all of the terms, covenants and conditions of this Lease to be performed by the Tenant. For the purposes of this provision, Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding, at a minimum, "adequate assurance of future performance" shall mean that each of the following conditions has been satisfied, and the Landlord has so acknowledged in writing: (i) the proposed assignee has submitted a current financial statement audited by a Certified Public Accountant which shows the net worth and working capital and amounts determined by Landlord to be sufficient to assure the future performance by such assignee of all of Tenant's obligations under this Lease; (ii) the proposed assignee, if requested by the Landlord, has obtained guarantys in form and substance satisfactory to the Landlord from one or more persons who satisfy the Landlord's standards of creditworthiness; and (iii) the Landlord has obtained all consents or waivers from any third party required under any lease, mortgage, financing arrangement, or other agreement by which the Landlord is bound, in order to permit the Landlord to consent to such assignment. ARTICLE 32 - ------------------ AMERICANS WITH DISABILITIES ACT ------------------------------- 32.1 Alterations to Common Areas. Landlord shall, subject to reimbursement as part of the Building's Operating Expenses, be responsible for any alterations, modifications or improvements to the Common Areas which are required under Title III of the Americans With Disabilities Act ("ADA"). Landlord represents and warrants that Landlord shall cause the Building Shell, as approved by the City and County of Denver, to fully meet with ADA requirements within the local jurisdiction guidelines, as these guidelines were written and enforced at the time of the approval of the building permit for the Building Shell by the City and County of Denver, including access from parking lots, location of parking spaces, and emergency lighting. In addition, Landlord represents and warrants that Landlord shall cause the Building Shell to be constructed in accordance with all other applicable building codes and ordinances in existence as of the date of approval of the building permit for construction of the Building Shell. 32.2 Alterations to Premises. Tenant shall, at Tenant's sole cost and expense, be responsible for any alterations, modifications or improvements to the Premises, and the acquisitions of any auxiliary aids, required under the ADA, including all alterations, modifications, or improvements required: (i) as a result of Tenant (or any subtenant, assignee, or concessionaire) being a "Public Accommodation" (as defined in the ADA); (ii) as a result of the Premises being a "Commercial Facility" (as defined in the ADA); (iii) as a result of any leasehold improvements made to the Premises by, or on behalf of, Tenant or any subtenant, assignee, or concessionaire (whether or not Landlord's consent to such leasehold improvements was obtained); or (iv) as a result of the employment by Tenant (or any subtenant, assignee, or concessionaire) of any individual with a disability. 32.3 "Use Clause" Implications. With respect to the use restrictions set forth in Section 4.1 of this Lease, and the restrictions on assignments and subletting set forth in Article 17 of this Lease, it is hereby specifically understood and agreed that Landlord shall have no obligation to consent to, or permit, a use of the Premises, or an assignment of the Lease, or a sublease of the Premises (collectively herein a "Use Change") if such Use Change would require the making of any alterations, modifications, or improvements to the Premises or the Common Areas, or the acquisition of any auxiliary aids, required under the ADA, unless Tenant performs all such acts and satisfies Landlord's requirements for financial responsibility for the costs of such compliance (which may include, by way of example, posting of a completion bond), Tenant shall be responsible for compliance with ADA in the design and layout of the Leasehold Improvements and Landlord shall have no responsibility therefor. ARTICLE 33 - ------------------ ATTORNEY FEES ------------- In the event either party defaults in the performance of any of the terms of this Lease and the other party employs an attorney in connection therewith, the prevailing party in any action or proceeding instituted to enforce this Lease shall be entitled to recover, in addition to any other remedy or damages to which the prevailing party may be entitled to recover pursuant to the terms of this Lease, its reasonable attorneys' fees and court costs incurred in connection with such action or proceeding. ARTICLE 34 - ------------------ NO IMPLIED WAIVER ----------------- The failure of Landlord to insist at any time upon the strict performance of any covenant or agreement herein, or to exercise any option, right, power or remedy contained in this Lease, shall not be construed as a waiver or a relinquishment thereof for the future. No payment by Tenant or receipt by Landlord of a lesser amount than the monthly installment of Rent due under this Lease shall be deemed to be other than on account of the earliest Rent due hereunder, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such rent or pursue any other remedy in this Lease provided. ARTICLE 35 - ------------------ LIMITATION OF LANDLORD LIABILITY -------------------------------- Redress for any claim against Landlord under this Lease shall be limited to and enforceable only against and to the extent of Landlord's interest in the Building or any rent or insurance or condemnation proceeds therefrom. The obligations of Landlord under this Lease are not intended to be and shall not be personally binding on, nor shall any resort be had to, the private properties of any of its members, or its or their trustees or board of directors or officers, as the case may be, its manager, the partners or members thereof, or any beneficiaries, shareholders, employees or agents of Landlord, the manager or any of the members of Landlord except to the extent of losses caused directly and proximately by Landlord's failure to maintain insurance coverage as required pursuant to the terms of this Lease. ARTICLE 36 - ------------------ SECURITY DEPOSIT ---------------- The Security Deposit shall be paid by Tenant to Landlord on the Commencement Date. The Security Deposit shall be held by Landlord without liability for interest and as security for the performance by Tenant of Tenant's covenants and obligations under this Lease, it being expressly understood that the Security Deposit shall not be considered an advance payment of rental or a measure of damages caused by Tenant in case of default by Tenant. Landlord may commingle the Security Deposit with Landlord's other funds. Landlord may, from time to time, without prejudice to any other remedy, use the Security Deposit to the extent necessary to make good any arrearage of rent or to satisfy any other covenant or obligation of Tenant hereunder. Following any such application of the Security Deposit, Tenant shall pay to Landlord on demand the amount so applied in order to restore the Security Deposit to its original amount. If Tenant is not in default at the termination of this Lease, the balance of the Security Deposit remaining after any such application shall be returned by Landlord to Tenant. If Landlord transfers its interest in the Premises during the term of this Lease, Landlord may assign the Security Deposit to the transferee and thereafter shall have no further liability for the return of such Security Deposit to Tenant. ARTICLE 37 - ------------------ NOTICE ------ Any notice in this Lease provided for must, unless otherwise expressly provided herein, be in writing, and may, unless otherwise in this Lease expressly provided, be given or be served by depositing the same in the United States mail, postage paid and certified and addressed to the party to be notified, with return receipt requested, or by delivering the same in person to an officer of such party, or by prepaid nationally recognized overnight courier service, addressed to the party to be notified at the address stated below or such other address, notice of which has been given to the other party. Notice deposited in the mail in the manner hereinabove described shall be effective from and after the expiration of three (3) calendar days after it is so deposited. Notice deposited with an overnight courier service shall be deemed effective the day after such deposit. Notices to Landlord: Gateway Office Four, LLC c/o Paul Powers 3950 Lewiston Street, Suite 100 Aurora, Colorado 80011 With a copy to: J. Kevin Ray, Esq. Campbell Bohn Killin Brittan   Ray, LLC 270 St Paul, Suite 200 Denver, Colorado 80206 Notices to Tenant: Frontier Airlines, Inc. 12015 East 46th Avenue, Suite 200 Denver, Colorado 80239-3116 Attention: Director of Properties and Facilities With a copy to: Randall G. Alt, Esq. Otten, Johnson, Robinson, Neff   Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 ARTICLE 38 - ------------------ SEVERABILITY ------------ If any term or provision of this Lease, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and enforced to the fullest extent permitted by law notwithstanding the invalidity of any other term or provision hereof. ARTICLE 39 - ------------------ RECORDATION ----------- Tenant agrees not to record this Lease or any memorandum hereof. ARTICLE 40 - ------------------ GOVERNING LAW ------------- This Lease and the rights and obligations of the parties hereto shall be interpreted, construed, and enforced in accordance with the laws of the State of Colorado. ARTICLE 41 - ------------------ FORCE MAJEURE ------------- Whenever a period of time is herein prescribed for the taking of any action by either party, the affected party shall not be liable or responsible for, and there shall be excluded from the computation of such period of time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, governmental laws, regulations or restrictions, or any other cause whatsoever beyond the control of that party. The foregoing provisions shall not apply to the payment of Rent or other amounts due from Tenant. ARTICLE 42 - ------------------ TIME OF PERFORMANCE ------------------- Except as expressly otherwise herein provided, with respect to all required acts of the parties hereto, time is of the essence of this Lease. ARTICLE 43 - ------------------ TRANSFERS BY LANDLORD --------------------- Landlord shall have the right to transfer and assign, in whole or in part, all its rights and obligations hereunder and in the Building and property referred to herein, and in such event and upon the transfer of all of such rights and obligations hereunder and in the Building and property referred to herein, Landlord shall be released from any further obligations hereunder, and Tenant agrees to look solely to such successor in interest of Landlord for the performance of such obligations. ARTICLE 44 - ------------------ COMMISSIONS ----------- Landlord and Tenant hereby indemnify and hold each other harmless against any loss, claim, expense or liability with respect to any commissions or brokerage fees claimed on account of the execution and/or renewal of this Lease due to any action of the indemnifying party. Landlord and Tenant each represent and warrant to each other that no broker has been used in connection with this Lease except for the broker(s) set forth on the Lease Summary hereof, which broker(s) shall be compensated by Landlord absent an agreement to the contrary. ARTICLE 45 - ------------------ EFFECT OF DELIVERY OF THIS LEASE -------------------------------- Landlord has delivered a copy of this Lease to Tenant for Tenant's review only, and the delivery hereof does not constitute an offer to Tenant or option. This Lease shall not be effective until a copy executed by both Landlord and Tenant is delivered to and accepted by Landlord. ARTICLE 46 - ------------------ CORPORATE AUTHORITY ------------------- Each person signing this Lease on behalf of Tenant represents and warrants that he or she has full authority to do so and that this Lease binds the corporation. Not later than thirty (30) days after Landlord's written request therefore, Tenant shall deliver to Landlord a certified copy of a resolution of Tenant's Board of Directors authorizing the execution of this Lease or other evidence of Tenant's authority to execute this Lease reasonably acceptable to Landlord. ARTICLE 47 - ------------------ JOINT AND SEVERAL LIABILITY --------------------------- All parties signing this Lease as Tenant shall be jointly and severally liable for all obligations of Tenant. ARTICLE 48 - ------------------ INTERPRETATION -------------- The captions of the Articles of this Lease, and each specific Section or paragraph within the respective Articles, are to assist the parties in reading this Lease and are not a part of the terms or provisions of this Lease. Whenever required by the context of this Lease, the singular shall include the plural and the plural shall include the singular. The masculine, feminine and neuter genders shall each include the other. In any provision relating to the conduct, acts or omissions of Tenant, the term "Tenant" shall include Tenant's agents, employees, contractors, successors or others using the Premises with Tenant's expressed or implied permission or acting on behalf of Tenant. ARTICLE 49 - ------------------ INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS ------------------------------------------------ This Lease is the only agreement between the parties pertaining to the lease of the Premises and no other agreements are effective. All amendments to this Lease shall be in writing and signed by all parties. Any other attempted amendment shall be void. ARTICLE 50 - ------------------ WAIVER OF JURY TRIAL -------------------- Landlord and Tenant by this Article 50 waive trial by jury in any action, proceeding, or counterclaim brought by either of the parties to this Lease against the other on any matters whatsoever arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises, or any other claims (except claims for personal injury or property damage), and any emergency statutory or any other statutory remedy. ARTICLE 51 - ------------------ ESTOPPEL CERTIFICATES --------------------- Within fifteen (15) days after written request from Landlord, Tenant shall execute and deliver to Landlord or Landlord's designee, a written certificate in the form of Exhibit H, attached hereto and incorporated herein by this reference or such other certificate that certifies that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as so modified), states the dates to which Rent and other charges payable under the Lease have been paid, states that Landlord is not in default hereunder (or if Tenant alleges a default stating the nature of such alleged default) and further states such other matters as Landlord shall reasonably require. Tenant acknowledges that any such statement may be relied upon by any Mortgagee, prospective Mortgagee, purchaser or prospective purchaser of the Building or any interest therein. Tenant's failure to execute and deliver any certificate or agreement hereunder within the time required shall be Tenant's consent that all information contained therein is true and correct and at Landlord's election be a default under this Lease. Any certificate, instrument, and/or agreement referred to in this Article 51 may at Landlord's election be in recordable form and may at Landlord's election be duly recorded. ARTICLE 52 - ------------------ NO MERGER --------- The voluntary or other surrender of this Lease by Tenant or the cancellation of this Lease by mutual agreement of Tenant and Landlord or the termination of this Lease on account of Tenant's default will not work a merger, and will, at Landlord's option, (i) terminate all or any subleases and subtenancies or (ii) operate as an assignment to Landlord of all or any subleases or subtenancies. Landlord's option under this Article 52 will be exercised by written notice to Tenant and all known sublessees or subtenants in the Premises or any part of the Premises. ARTICLE 53 - ------------------ COUNTERPARTS ------------ This Lease may be executed in counterparts, and, when all counterpart documents are executed, the counterparts shall constitute a single binding instrument. ARTICLE 54 - ------------------ EQUIPMENT --------- 55.1 Supplemental Equipment. Tenant shall have the nonexclusive right, at Tenant's sole cost and expense, to install and maintain, at its sole expense certain supplemental equipment adjacent to the building which contains the Premises in accordance with the provisions of this Article 54 and the other provisions of this Lease. Such supplemental equipment shall be limited to an emergency generator with fuel tank, an uninterruptible power supply system with batteries, a supplemental air conditioning system with condensing units, and one 6 foot diameter satellite dish for use in connection with Tenant's business operations, together with cables extending from such satellite dish to the Premises to be located on the roof of the Building behind the parapet at a location reasonably designated by Landlord and reasonably approved by Tenant (collectively, the "Supplemental Equipment"). All such Supplemental Equipment shall be placed in a location reasonably approved by Landlord and Tenant. Tenant shall have sole responsibility and liability with respect to any Supplemental Equipment's compliance with: (i) any declaration of covenants conditions or restrictions applicable to the Building, (ii) the roof warranty and (iii) any law, regulation, ordinance or zoning imposed by any governmental body having authority over the Building. Tenant's inability to obtain such approvals shall not render this Lease void or voidable, and Landlord will not be liable to Tenant for any resultant loss or damage. Tenant's installation of any Supplemental Equipment shall comply with the provisions of Article 12 of this Lease. Supplemental Equipment shall be considered as part of the Premises and subject to all applicable terms of the Lease. The installation of Supplemental Equipment shall be by a contractor approved by Landlord and in accordance with plans and specifications approved by the Landlord and all applicable governmental authorities. Tenant shall be solely responsible for maintaining all insurance, licenses and permits for any Supplemental Equipment and its operation. Tenant, at its sole cost and expense shall cause all Supplemental Equipment to be screened from view by the public with screening processes and materials reasonably approved by Landlord. Tenant shall have the right at its sole risk and expenses of access to the Building rooftop in order to perform maintenance on any rooftop Supplemental Equipment ; provided that such access to the Building rooftop shall, except in the case of emergency, be upon prior written notice to Landlord and the Landlord shall have the right to have a representative present. Upon termination of the Lease for any reason, Tenant shall at Tenant's expense promptly remove all Supplemental Equipment and restore the Building and the Premises to their condition prior to the installation of the Supplemental Equipment. Tenant hereby agrees to indemnify Landlord against any damage caused to the Building including any damage to other tenants in the Building or to the Common Area which result from Tenant's installation or removal of any Supplemental Equipment. This provision shall survive termination of the Lease. 55.2 Landlord Waiver. Landlord hereby acknowledges that Tenant has acquired equipment, and will acquire additional equipment (collectively, the "Equipment"), under the terms of one or more credit agreements with lenders, pursuant to which the lenders have financed Tenant's purchase of all or a portion of the Equipment. A portion of the Equipment will be installed in the Premises. Landlord hereby disclaims any interest in the Equipment. In addition, Landlord hereby (a) waives, disclaims and releases any claim of ownership of or lien on or security interest in all or any part of the Equipment, whether consensual, statutory or otherwise, including without limitation any mechanics', artisans' or materialmen's lien; (b) to the fullest extent permitted by law, waives all rights granted by or under any present or future law to levy or distraint on the Equipment, for any sums due to Landlord; (c) acknowledges that, regardless of the manner or mode of installation of the Equipment, the Equipment is and shall continue to be the personal property of Tenant or the vendor of the Equipment, as the case may be; (d) acknowledges that the lenders under the credit agreements have (or may have) financed Tenant's purchase of all or a part of the Equipment, and, to the extent that any of the Equipment has been so financed, the lenders have a security interest in such Equipment; (e) agrees that the lenders and their agents may, from time to time in accordance with the credit agreement and, with Landlord's prior consent, which consent shall not be unreasonably withheld or delayed and if accompanied by Landlord, enter upon the Premises where the Equipment is located for the purposes of inspecting, repairing, removing and/or conducting a sale or sales of the Equipment, and that Landlord shall not hinder or prevent the lender or its agents from taking any such action; and (f) agrees that the lenders and its agents are third-party beneficiaries of this section and that this section may not be terminated, amended, or modified without the prior written consent of such lenders. The right of such lender to enter onto the Premises shall be conditioned on the lender giving notice to the Landlord of its planned entry, and the agreement of such lender to repair any damage caused by such entry. ARTICLE 55 ---------- PARKING ------- Throughout the Lease Term, Landlord agrees to make available for Tenant's use, at no cost to Tenant, not less than ten (10) parking spaces in the outdoor parking lot to be constructed at the Building (collectively, the "Parking Spaces") for each one thousand (1,000) square feet of Rentable Area of the Premises, or approximately one hundred sixty (160) Parking Spaces. Approximately thirty percent (30%), or approximately forty-eight (48) of such Parking Spaces shall be designated for suitable use by "compact" vehicles only, with the remainder suitable for use by standard sized vehicles. Tenant's use of the Parking Spaces shall be subject to such reasonable rules and regulations as may be imposed by Landlord from time to time so long as such rules and regulations are applicable to and uniformly enforced against all tenants of the Building. Landlord shall make the Parking Spaces available for use by Tenant at all times during the Lease Term, provided, that Landlord's inability to make such spaces available at any time for reasons beyond Landlord's reasonable control shall not constitute a material breach by Landlord of its obligations hereunder so long as Landlord makes suitable substitute parking facilities available for Tenant's use in the vicinity of the Building during any period of unavailability of parking at the Building . All vehicles parked in the parking areas and the personal property therein shall be at the sole risk of Tenant, Tenant's agents, employees and invitees and the users of such Parking Spaces, and Landlord shall have no liability for loss or damage thereto for whatever cause. ARTICLE 56 ---------- RESTRICTED USE -------------- Landlord agrees that during the Lease Term, Landlord shall not lease any other premises in the Building to another tenant for use as an airline or travel related call center. ARTICLE 57 ---------- EXHIBITS -------- All Exhibits as listed on the "List of Agreements" preceding or attached hereto, are incorporated herein and made a part of this Lease for all purposes. IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease (which may be in multiple original counterparts) as of the day and year first above written. LANDLORD: TENANT: GATEWAY OFFICE FOUR, LLC, FRONTIER AIRLINES, INC., a Colorado limited liability company a Colorado corporation By: GATEWAY BUSINESS PARK, LLC, a By: ----------------------------------------- Colorado limited liability company, Print Name: --------------------------------- its sole member Print Title: -------------------------------- By: ----------------------------------------- Paul Powers, President and Authorized Signatory  A-1 Tenant Initials EXHIBIT "A" ----------- GATEWAY OFFICE FOUR LEGAL DESCRIPTION Landlord, from time to time, shall have the right to amend this legal description to accurately reflect the legal parcel if and when it becomes necessary to adjust the legal description to accommodate the development of other adjacent buildings.  B-1 Tenant Initials EXHIBIT "B" ----------- GATEWAY OFFICE FOUR FLOOR PLAN OF PREMISES [To be prepared by Landlord and Tenant and inserted upon execution and delivery of Lease.]  C-1 Tenant Initials EXHIBIT "C" ----------- GATEWAY OFFICE FOUR  D-2 Tenant Initials OPERATING EXPENSES ------------------  C-3 Tenant Initials For purposes of this Lease, "Operating Expenses" shall not include: (1) costs related to electricity and other utilities, janitorial services, and HVAC service (including, without limitation, costs to repair, maintain and replace systems used in connection with the provision of those services) supplied to any areas of the Building which are leased to tenants; (2) depreciation on the Building; (3) costs of alterations of space or other improvements made for tenants of the Building; (4) finders' fees and real estate brokers' commissions; (5) ground lease payments, mortgage principal or interest; (6) costs of excess or additional services provided to any tenant in the Building which are billed directly to such tenants; (7) any cost due to Landlord's breach of any contract, or any tort liability of Landlord; (8) all costs, including legal fees, relating to activities for the solicitation and execution of leases of space in the Building; (9) any legal fees incurred by Landlord in enforcing its rights under other leases for premises in the Building; (10) wages (including fringe benefits) of executives above the grade of building manager; (11) the portion of costs incurred in performing work or furnishing services for any tenant, whether at such tenant's or Landlord's expense, to the extent that such work or service is in excess of any work or service that Landlord is obliged to furnish to Tenant pursuant to this Lease without additional payment by Tenant; (12) costs or expenses for which Landlord has received or is to receive reimbursement from the proceeds of insurance, condemnation awards, guarantee, or any other source (other than reimbursement of Operating Expenses); (13) costs incurred in relocating tenants in the Building; (14) costs incurred in connection with the transfer or disposition of the Building, or any portion thereof, or any interest therein, including, without limitation, brokerage commissions, attorneys' fees and disbursements, transfer taxes, gains taxes and recording charges; (15) the cost of works of art of the quality and nature of "fine art"; (16) rent paid under superior leases; and (17) the portion of any fee or expenditure for any purpose whatsoever paid to Landlord or to an entity affiliated with Landlord which exceeds the amount which would be paid in the absence of such relationship; (18) Landlord's general corporate overhead and general and administrative expenses, except to the extent included in Landlord's management fee; (19) Advertising and promotional expenditures, excluding the cost of signs in or on the Building or project identifying the owner of the Building or project or other tenants' signs; (20) Costs arising from the negligence or fault of other tenants or Landlord or its agents, or any vendors, contractors, or providers of materials or services selected, hired or engaged by Landlord or its agents including, without limitation, the selection of building materials; (21) any and all costs arising from the presence of Hazardous Materials in or about the Premises or the Building including, without limitation, hazardous substances in the ground water or soil, not placed in the Premises or the Building by Tenant; (22) Landlord's charitable or political contributions; (23) Costs associated with the operation of the business of the partnership or entity which constitutes Landlord or its principals, as the same are distinguished from the costs of operation of the project, including partnership accounting and legal matters, costs of defending any lawsuits with any mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord's interest in the project, costs of any disputes between Landlord and its employees (if any) not engaged in project operation, disputes of Landlord with building management, or outside fees paid in connection with disputes with other tenants; (24) Costs of any tap fees, or any sewer water connection fees for the benefit of any particular tenant in the project; (25) Any flowers, gifts, balloons, etc. provided to any entity whatsoever, including but not limited to Tenant, other tenants, employees, vendors, contractors, prospective tenants and agents; (26) Any "validated" parking for any entity; or (27) "In-house" legal and/or accounting fees except to the extent included in the management fee payable to Landlord. Landlord further agrees that since one of the purposes of Operating Expenses and the gross up provision herein is to allow Landlord to require Tenant to pay for the costs attributable to its Premises, Landlord agrees that (i) Landlord will not collect or be entitled to collect Operating Expenses from all of its tenants in an amount which is in excess of one hundred percent (100%) of the Operating Expenses actually paid by Landlord in connection with the operation of the Building, and (ii) Landlord shall make no profit from Landlord's collections of Operating Expenses. Landlord estimates that Operating Expenses for the first year of the Building's operation shall be as follows: ITEM: PRICE PER SQUARE FOOT - ----- --------------------- Irrigation Water/Exterior Lighting $0.12 Snow Removal $0.06 Landscaping $0.09 Management Fee $0.29 Engineer $0.03 Taxes $2.50 Insurance $0.08 Security/Life $0.01 Sweeping $0.01 ESTIMATED TOTAL PER SQUARE FOOT: $3.19 The foregoing is an estimate only. Actual Operating Expenses may vary. Operating Expenses exclude utilities and janitorial services, which Tenant shall be responsible for providing to the Premises.  D-10 Tenant Initials EXHIBIT "D" ----------- GATEWAY OFFICE FOUR WORK LETTER This Work Letter supplements the Lease Agreement (the "Lease") dated concurrently herewith, by and between GATEWAY OFFICE FOUR, LLC, a Colorado limited liability company, as Landlord, and FRONTIER AIRLINES, INC., a Colorado corporation, as Tenant, covering the Premises. All terms not defined herein shall have the same meaning as set forth in the Lease. 1. Construction of Building. 1.1 Base Building Improvements. Landlord has constructed, or shall construct, through its contractor, at Landlord's sole cost, a building shell, including the (the "Base Building Improvements") listed on the Revised Scope of Work dated as of December 8, 2000 and attached hereto:: 1.2 Tenant Improvements Descriptions. Tenant shall, at its sole cost and expense, complete all improvements to the Premises (the "Tenant Improvements"), other than the Base Building Improvements. Without limiting the generality of the foregoing description of Base Building Improvements, Tenant Improvements shall include the following items: a. ceiling and lighting in the Premises; b. floor finishes in the Premises, including carpet as selected by Tenant; c. interior finishes of any kind within the Premises; d. interior partitions, demising walls (provided that Landlord and Tenant shall each pay fifty percent (50%) of the cost of such demising walls), doors and hardware within the Premises; e. all heating, ventilating and air conditioning equipment and other air distribution devices, including distribution systems and controls or supplemental systems; f. electrical and plumbing services from the core of the Building as provided in the Scope of Base Building Improvements; g. modifications to the automatic fire sprinkler system as required for Tenant's layout as set forth on "Tenant's Schematic Space Plans" (as hereinafter defined); h. fire and life safety systems throughout the Premises, including without limitation exit signs, horn/strobe or intercoms and extinguishers; i. window coverings, consisting of Levelor, Riviera or Newport one inch, eight gauge horizontal mini-blinds in a color approved by Landlord; j. architectural and engineering preparation of plans and specifications for the Tenant Improvements to conform to Building standards; k. permits and fees to local jurisdictions; l. signage; m. men's and women's restroom facilities; and n. such other costs as are described in Section 3.2 hereinbelow. 2. Plans and Specifications for Tenant Improvements. 2.1 Tenant has retained Reddy   Reddy as its licensed architect to prepare the plans and specifications for the Tenant Improvements. All such plans and specifications shall be submitted to Landlord for its approval prior to commencement of construction of any Tenant Improvements. Notwithstanding anything to the contrary, Tenant has or will engage and utilize Priest Engineering as its mechanical and electrical engineers, which has been approved by Landlord. 2.2 Tenant shall cause its architect to furnish to Landlord for Landlord's approval space plans sufficient to convey the architectural design of Tenant Improvements to be constructed by Tenant in the Premises, including, without limitation, the location of doors, partitions, electrical and telephone outlets, plumbing fixtures, heavy floor loads and other special requirements, together with reflective ceiling plans ("Tenant's Schematic Space Plans"). If Landlord shall disapprove of any portion of Tenant's Schematic Space Plans, Landlord shall advise Tenant of such revisions, and reasons therefor, as are reasonably required by Landlord for the purpose of obtaining approval. Tenant shall then submit to Landlord, for Landlord's approval, a redesign of Tenant's Schematic Space Plans, incorporating the revisions required by Landlord and such modifications thereof as are suggested by Tenant, said modifications to be subsequently approved by Landlord prior to Tenant's submission of Final Plans (as hereinafter defined). Landlord acknowledges that construction of the Tenant Improvements is a "fast-track" project, and agrees to expeditiously review and cooperate with Tenant to approve Tenant's Schematic Space Plans and Final Plans. 2.3 Tenant shall cause its architect to prepare from Tenant's Schematic Space Plans (approved by Landlord in accordance with Section 2.2 above) complete architectural plans, drawings and specifications and, utilizing Landlord's approved mechanical, electrical and structural engineers, complete engineered and cross coordinated mechanical, electrical and structural working drawings for (i) all of the Premises, showing the subdivision, layout, finish and decoration work (including carpeting and other floor coverings) desired by Tenant therefor, and (ii) any internal or external communications or special utility facilities which will require conduiting or other improvements outside premises, all in such form and in such detail as may be reasonably required by Landlord. Such complete plans, drawings and specifications are referred to herein as the "Final Plans". Tenant's Final Plans shall (i) be compatible with the Base Building Improvements, (ii) comply with all applicable laws and ordinances, and the rules and regulations of all governmental authorities having jurisdiction, and (iii) comply with all applicable insurance regulations for the Building. Tenant shall submit the Final Plans for the approval of Landlord in the same manner as provided in Section 2.2 above for approval by Landlord of Tenant's Schematic Space Plans. 2.4 Tenant acknowledges that, unless specifically shown as Landlord's responsibility on the Final Plans, the Tenant Improvements shall not include, nor shall Landlord be responsible for, the design, construction or installation of various nonstructural items which Tenant may find desirable for the Premises including, without limitation, furniture, trade fixtures, office equipment, telephone, telecommunications and data equipment and systems, plantscaping, artwork or cabling required in connection with any of these items. Notwithstanding the fact that Landlord's architects and engineers shall have the right to review Tenant's Schematic Space Plans and Tenant's Final Plans, Tenant shall be solely responsible for the design and function of such plans, including, without limitation, their integration with all of the Building's systems. 2.5 Landlord shall cooperate with Tenant in obtaining approval of the Final Plans by all governmental agencies having jurisdiction. 2.6 Tenant shall cause its architect to provide documentation for all changes to the Final Plans at the time each change is authorized by Landlord for construction. Within thirty (30) days after the date of substantial completion of the Tenant Improvements, Tenant's architect shall submit to Landlord a set of conformed plans on mylar incorporating all field changes made and all changes and/or revisions that have been made subsequent to Landlord's approval of the Final Plans. 3. Tenant Improvements. 3.1 Tenant shall be solely responsible for the payment of all costs to construct the Tenant Improvements, including all "Work Costs" (as hereinafter defined). 3.2 As used herein, "Work Costs" mean (i) all fees and expenses incurred by Tenant in connection with the design and construction of the Tenant Improvements; (ii) the actual contractor costs and charges for material and labor, contractor's profit, overhead and general conditions incurred by Tenant in having the Tenant Improvements constructed in accordance with the Final Plans; (iii) governmental agency plan check, permit and other fees and sales and use taxes; (iv) testing and inspection costs; and (v) any paint touch-up or repair work necessary due to Tenant's move into the Premises. Tenant hereby agrees to pay a fee to be paid to Landlord equal to two percent (2%) of all Tenant Work Costs for administration by Landlord of construction of the Tenant Improvements. 3.3 Work Costs shall also include all costs incurred by Landlord in performing work for Tenant during construction of the Building Shell or work performed by Landlord at Tenant's request and approved by Tenant in connection with the completion of the Tenant Improvements ("Additional Work"). In the event that Tenant requests Landlord to perform Additional Work associated with the Building Shell or Tenant Improvements, the following procedure will apply: a. Tenant will provide a written request for the Additional Work to be performed. Tenant will provide drawings as required for a clear and accurate determination of the Additional Work to be performed by Landlord. b. Landlord will estimate the cost of the Additional Work requested and will provide a written cost response for such work, including the management fee described in Section 3.2 above. c. Tenant shall approve the cost of the Additional Work and shall sign off on the cost estimate prior to Landlord's commencement of the Additional Work. d. Landlord shall submit an invoice for such Additional Work to Tenant upon Tenant's approval of the cost estimate authorizing such Additional Work. Tenant will pay Landlord for Additional Work within ten (10) days following its receipt of such invoice. 3.4 If the Final Plans or any amendment thereof or supplement thereto shall require changes in the Base Building Improvements, the increased cost of the Base Building Improvements caused by such changes shall be charged to Tenant as Additional Work. The cost thereof shall include all direct architectural and/or engineering fees and expenses in connection therewith. 3.5 Landlord's written estimate of the cost of Additional Work shall include a reasonable contingency of 10% to allow for changes in the Tenant Improvements and/or other unforeseen costs and expenses arising after Tenant's approval thereof. 3.6 Any changes to the approved Final Plans ("Changes") which are requested by Tenant or required by any governmental agency shall be forwarded to Landlord for approval. Tenant shall pay the cost of the Changes in accordance with the provisions of Section 3.1 above. Any delay in the construction of Tenant Improvements as a result of Changes or payment of the cost thereof shall be a Tenant Delay (as defined in Section 7 below). 4. Construction. 4.1 In connection with the construction of the Tenant Improvements, each party shall be entitled to rely upon the other party's construction representative who shall be as follows: Landlord's construction representative ("Landlord's Construction Representative"):Richard E. Quinn, Tenant's construction representative ("Tenant's Construction Representative"):Cornelius "Casey" Baas. Each respective construction representative shall have the authority to make binding commitments relative to the Tenant Improvements on behalf of the party appointing such construction representative. All inquiries of Tenant pertaining to construction of the Building Shell shall be directed in writing to Landlord's Construction Representative. A party may designate a substitute construction representative by giving written notice to the other party at any time. Any representatives of Tenant who desires to visit the Premises during construction of the Tenant Improvements must obtain the prior consent of Landlord and the General Contractor. 4.2 Early Access: In the event Tenant wishes to begin the Tenant Improvements prior to the completion of the Building Shell by Landlord, Landlord will permit such access so long as the following (the "Shell Improvements") have been completed: a. All required insurance and permits for Tenant Improvements are in place and have been issued; b. All perimeter concrete pour back strips have been poured; c. Structural roof deck and the roof substantially weather tight; d. Perimeter walls have been erected and welded into place; e. Sprinkler mains and laterals and perimeter glass and glazing installation work shall be ongoing (provided, that if glazing has not been completed, Landlord shall hang plastic sheeting in all window openings in the Premises; and f. A punchlist for the Building Shell has been established as described in Section 5. Tenant acknowledges that the foregoing requirements are for the primary benefit of Tenant and Tenant will be working in cooperation with Landlord's General Contractor. In the event disputes arise between Landlord's General Contractor and Tenant's Contractor, Tenant's right to early access to the Premises may be terminated by Landlord without notice with respect to the disputed work area. Any delays caused by Tenant shall be considered a "Tenant Delay" (as hereinafter defined). 5. Base Building Punch List. On or before the date Tenant begins construction of the Tenant Improvements, Landlord shall cause its General Contractor to inspect the Premises with Landlord's Construction Representative and Tenant's Construction Representative and to complete a written punch list of unfinished items of Base Building Improvements prior to Tenant's construction mobilization in the Premises. Landlord, Landlords General Contractor and Tenant's Construction Representative shall execute said written punch list to indicate approval thereof, and Landlord shall cause its General Contractor to correct all such punch list items with reasonable diligence. 6. Schedule. Preparation and approval of Tenant's Schematic Space Plans, Final Plans and the Work Cost Estimate, if any, shall proceed as indicated below and each action shall be completed on or before the date herein specified. Time is of the essence. Action Responsibility Due Date ------ -------------- -------- (i) Submission of Tenant's Tenant Ten (10) days following Schematic Space Plans mutual execution of the to Landlord Lease (ii) Delivery of written Landlord Five (5) days following approval of Tenant's submittal of Tenant's Schematic Space Plans to Schematic Space Plans Tenant (including any to Landlord necessary design revision comments) (iii) Submission of Final Tenant Twenty-one (21) days Plans to Landlord for following Landlord's approval approval of the Tenant's Schematic Space Plans (iv) Delivery of written Landlord Five (5) days following approval of Final Plans submittal of Final Plans to Tenant including to Landlord any necessary design revision comments 7. Delays. If Landlord shall be materially delayed in substantially completing the Base Building Improvements as a result of any of the following ("Tenant Delays"): a. Tenant's failure to complete any action item which is the responsibility of Tenant on or before the due date specified in Section 6 above to the extent that such failure is not caused by failure of Landlord to timely perform its obligations in accordance with the schedule in Section 6, or b. Any delay of Tenant in making payment to Landlord of the Additional Work performed by Tenant as provided in Section 3.3 above, or c. Any other delay requested or caused by Tenant, then the Lease Term shall nevertheless commence and the Commencement Date shall be the date it would have been had the delay not occurred. 8. Final Acceptance of Tenants Premises by Landlord. Landlord's acceptance of the Premises with all Tenant Improvements shall be subject to Tenant's delivery to Landlord of the following: a. Building Permit; b. Certificate of Occupancy; c. Air Balance Report; d. List of Subcontractors; e. Subcontractors' Warranties/Guaranties; f. Ownership and Maintenance Manuals; g. "As-Built" plans and specifications; h. General Contractor's Warranty; i. Confirmation that punchlist items have been completed; and j. Final Lien Releases 9. Miscellaneous. Any default by Tenant under the terms of this Work Letter shall constitute a default under the Lease and shall entitle Landlord to exercise all remedies set forth therein. Both Landlord and Tenant agree to use reasonable diligence in performing all of their respective obligations and duties under this Work Letter and in proceeding with the construction and completion of the Building and all Tenant Improvements in the Premises. LANDLORD: TENANT: GATEWAY OFFICE FOUR, LLC, FRONTIER AIRLINES, INC., a a Colorado limited liability company Colorado corporation By: GATEWAY BUSINESS PARK, LLC, a By: ----------------------------------------- Colorado limited liability company, Print Name: --------------------------------- its sole member Print Title: -------------------------------- By: ----------------------------------------- Paul Powers, President and Authorized Signatory ATTACHMENT 1 ------------ TO EXHIBIT "D" -------------- GATEWAY OFFICE FOUR REVISED SCOPE OF WORK GATEWAY PARK OFFICE CAMPUS SINGLE STORY, MULTI-TENANT OFFICE BUILDING 4400 Kittredge Street Denver, Colorado December 8, 2000 GENERAL BUILDING SPECIFICATIONS: - -------------------------------- Building Size: Approximately 62,556 SF ------ Site Description: Lot 1, Block 1 Clear Height: 12' Parking Spaces Provided: 10:1,000 s.f. (per Frontier's lease of 16,070 ------------- s.f.) Bay Sizes Per Layout: 36' x 43' Automatic Fire Sprinkler System: V-N, fully sprinkled One Story Tilt-Up Concrete Wall Construction Roof Insulation: R-12.5 Wall Insulation: None Electrical Service: 1600 amps, 3-phase, 480 volt Asphalt Paving: 6 " in parking area, 7"-fire lane Slab on Grade: 5" Foundation System: Spread Footings Utilities: 2" water 6" sewer Roof Slope: 1/4" : 12" NOTE: The proposed Building does not have a designed HVAC system. DIVISION 1 - GENERAL REQUIREMENTS 1. On-site project superintendent 2. Project management 3. Field engineering and layout 4. Concrete, soil compaction, steel, and soil observation/testing 5. Project office, telephone, and sanitary facilities 6. Clean-up and close-out 7. Building permit and plan check fee 8. State and local taxes 9. Contractor's general liability 10. Job site safety provisions 11. Sewer and water and drainage fees 12. Design: Architectural, Structural, Civil Engineering, Plumbing, Electrical, Landscape DIVISION 2 - SITEWORK - --------------------- 1. Clear and grub site 2. Structural excavation and backfill 3. Rough and fine grading as required 4. Exterior sidewalks and handicap ramps. Perimeter sidewalks adjacent to building will have positive drainage away from building 5. 6" full-depth asphalt paving in the parking lot and 7 " full-depth asphalt in the life safety access areas (subject to soils engineer approval) 6. Parking lot striping and handicap markings 7. Four (4) new curb cuts as shown on the site plan and all on-site curb and gutter is included 8. Landscaping including seeding, irrigation, sodding, deciduous and evergreen trees and shrubs per landscape plan 9. Site utilities including 6" sewer and 2" water service to building from Kittredge Street, Contractor to field verify underground utilities and curbs at perimeter of site 10. No underslab gravel is included 11. Fire hydrants are included per Denver Fire Department requirements DIVISION 3 - CONCRETE - --------------------- 1. Foundations to consist of spread footings. Actual design will be per the soils investigation prepared by Ground Engineering, Project Number 00-00271, dated September 5, 2000. 2. Slab-on-grade for each area of the facility shall be as follows: a. Office area: 5" thick, 3,500 psi reinforced with 6/6 x 6/6 wwf on chairs and pumped b. Concrete accessories as required (i.e. control joints, expansion joint material, anchor bolts, sawcut, etc.) 3. Sawcut shall be caulked in all exterior concrete paving 4. Exterior walls shall be site-cast tilt-up panels. Panels shall have smooth painted finish. 5. All interior slabs will be soft cut appropriately after placement 6. During construction, exposed earth at perimeter floor slab shall be protected from erosion DIVISION 5 - METALS - ------------------- 1. Structural steel columns, truss girders, bar joists, "B" roof deck 2. Miscellaneous steel as required including lintels, angles, bearing plates, handrails, stairs, etc. DIVISION 6 - CARPENTRY - ---------------------- 1. Rough framing material and labor (i.e. window openings, parapet walls, and miscellaneous blocking) 2. Material and labor for carpentry, patching, hanging of doors/hardware and other miscellaneous finish carpentry DIVISION 7 - THERMAL AND MOISTURE PROTECTION - -------------------------------------------- 1. Roof: Ballasted 45 ML EPDM over 1.9" Isocyanurate roof insulation, R-12.5, tapered EPS insulation crickets at low wall, 10' wide perimeter high wind ballast, 10-year roof warranty 2. No interior wall insulation is included 3. Caulking and flashings as required 4. Rigid insulation at perimeter foundation walls 5. Open faced downspouts with conductor heads located to direct water away from office and door locations and not direct water under pavement areas or onto sidewalk 6. No skylights 7. Bilco roof scuttle with safety extension posts DIVISION 8 - DOORS, WINDOWS, GLAZING - ------------------------------------ 1. Exterior window system by Southwest Aluminum of 50% Kynar anodized bronze aluminum with 1" tinted gray I-6 insulated glazing. 3' x 7' storefront doors with mail slots 2. Exterior storefront doors to match exterior glazing system, with panic bars if required by code 3. Glazing to be light gray I-6 in color 4. Hollow metal frames and doors at exterior as shown and doors to mechanical and electrical closets 5. Hardware assumes 11/2" pair of hinges per door leaf with commercial-grade lever sets DIVISION 9 - FINISHES - --------------------- 1. All exterior walls, metal doors and frames, exposed flashings, and other ferrous metals shall be painted 2. Drywall and metal stud framed electrical and fire sprinkler room 3. Knox box DIVISION 15 - MECHANICAL - ------------------------ 1. Plumbing system a. Utilities to building include: Floor drain (sprinkler room) Clean outs Site clean out 11/2" water line meter 11/2" reduce pressure backflow preventor 2" water line to building and domestic line Sprinkler backflow preventor 6" sewer line to building and running through building as shown 8" fire protection water line with 8" backflow preventor 2. Complete Automatic Fire Sprinkler System: NFPA 13 Ordinary Hazard Group II Assumed water flow data: Static: 85 psi Residual: 80 psi Flow: 1250 gpm 3. Gas to a central manifold to be designed at 2lbs throughout 4. HVAC: Complete HVAC System and associated rooftop unit screening (per approved RTU screen detail) responsibility of Tenant. DIVISION 16 - ELECTRICAL - ------------------------ 1. Service1600 amp, 120/208/480 volt, 3-phase with laterals at a common electrical room 2. One (1) 1600 amp, 480 volt, 3-phase bussed gutter One (1) 100 amp, 480 volt, 3-phase disconnect 30 KVA Transformer 3. Lighting design: a. No interior lighting is included b. 4" Telephone conduit from property line to building telephone room. c. Sign circuits/hook up to monument sign d. Flow/tamper switch hook up e. Outside horn/strobe hook up and Fire Alarm Panel f. 4" PVC for future power underslab g. 2" PVC for future phones underslab h. Plug phone board i. Plug by electrical room j. Plug by sprinkler clock k. Building perimeter and parking lot lighting 4. Emergency Power - by Tenant - will require screening of unit at Tenant's cost  E-3 Tenant Initials EXHIBIT "E" ----------- GATEWAY OFFICE FOUR BUILDING RULES AND REGULATIONS 1. Tenant, or its officers, agents, employees, contractors or vendors, shall not obstruct sidewalks, doorways, vestibules, halls, corridors, stairways, lobbies and other common areas (the "Common Areas") with refuse, furniture, boxes, or other items. The Common Areas shall not be used for any purpose other than ingress and egress to and from the Premises, or for going from one part of the Building to another part of the Building. Tenant's doors to the Premises shall not be blocked open and shall remain closed at all times unless first approved in writing by Landlord in its sole discretion. 2. Plumbing, fixtures and appliances shall be used only for the purposes for which constructed, and no unsuitable material shall be placed therein. 3. No signs, directories, posters, advertisements, or notices shall be painted on or affixed to any portion of the Building or Premises or other parts of the Building or within Tenant's Premises which are visible from any Common Areas or the Building exterior, except in such color, size, and style, and in such places, as shall be first approved in writing by Landlord, which consent shall not be unreasonably withheld or delayed. The Premises shall be identified by a standard suite sign which Landlord shall order at Tenant's expense. Landlord shall have the right to remove all unapproved signs upon prior reasonable notice to Tenant, at Tenant's expense. Landlord shall include one listing (or more at Landlord's sole discretion) for Tenant on its directory of Tenants. 4. Except as otherwise expressly permitted pursuant to the Lease, Tenant shall not do, or permit anything to be done in or about the Building, or bring or keep anything therein, that will in any way increase the possibility of fire or other hazard or increase rate of fire or other insurance on the Building. Tenant shall not use or keep in the Building any inflammable or explosive fluid or substance or any illuminating materials. No space heaters or portable fans shall be operated in the Building. Tenant must submit to Landlord a certificate of Fire Retardancy for any fresh evergreens (i.e. Christmas tree, wreaths) to be brought onto the Premises. 5. Tenant shall cooperate with Landlord in keeping the Premises neat and clean. 6. Tenant shall not interfere, injure or annoy in any way other tenants in the Building, or persons having business with them. 7. No animals shall be brought into or kept in or about the Building, with the exception of seeing eye dogs. 8. When conditions are such that Tenant must dispose of small shipping crates or boxes, it will be the responsibility of Tenant to break down and dispose of same in the refuse container designated by Landlord. The disposal of large shipping crates or boxes (or other large objects or quantities), which in Landlord's sole determination could overload the designated refuse container, must be accommodated through Tenant's mover or vendor or may otherwise be prearranged through Landlord at an additional charge to Tenant's account. 9. No machinery of any kind, other than ordinary office machines such as typewriters, calculators, facsimile equipment, personal computer equipment, telephone PBX equipment, servers and cleaning equipment shall be operated on the Premises unless first approved in writing by Landlord in its sole discretion. 10. No bicycles, motorcycles or similar vehicles will be allowed in the Building. 11. After Normal Business Hours, Landlord reserves the right to exclude from the Building any person who does not possess an authorized means of access such as a key, card key, or a prearranged written authorization and who is otherwise not an employee or guest of Tenant. In no event shall Tenant allow access to the Premises or the Building to anyone other than its officers, agents, employees, guests or vendors. 12. Canvassing, soliciting and peddling in Common Areas, or otherwise within the Building, are strictly prohibited. Unless otherwise approved by Landlord in writing, Tenant shall not use the Premises for the sale of newspapers, magazines, periodicals or theater tickets to other tenants in the Building or the general public. Tenant shall not use the Premises for any business or activity other than that specifically provided for in Tenant's lease. Tenant shall not make door-to-door solicitation of business from other tenants in the Building. 13. Tenant shall initially be given fifteen (15) keys to the Premises by Landlord. No duplicates of such keys shall be made by Tenant. Additional keys shall be obtained only from Landlord, at a fee to be determined by Landlord. No additional locks shall be placed upon any doors unless first approved by Landlord in writing. Upon termination of Tenant's lease, Tenant shall surrender all keys to the Premises (and, if applicable, card keys) to Landlord and shall otherwise give Landlord the combination of all locks on the Premises. 14. Tenant will not locate furnishings or cabinets adjacent to mechanical or electrical access panels or over air conditioning outlets so as to prevent operating personnel from servicing such units as routine or emergency access may require. Cost of moving such furnishings for Landlord's access will be billed to Tenant. 15. Subject to rights granted to Tenant under the Lease, Tenant shall comply with all parking rules and regulations as posted and distributed by Landlord from time to time. 16. No portion of the Building shall be used for the purpose of lodging rooms. 17. Tenant shall not waste electricity, water or other utilities. Tenant will comply with any governmental energy-saving rules, laws or regulations of which Tenant has received notice. Tenant agrees to cooperate fully with Landlord to assure the effective operation of the Building's heating and air conditioning. 18. Vending machines or dispensing machines of any kind shall not be placed in the Premises by Tenant other than for the sole use of Tenant and its employees, unless first approved in writing by Landlord in its sole discretion. 19. Landlord's written approval, which shall be at Landlord's reasonable discretion, must be obtained prior to changing from the standard blinds. Landlord will control all blinds and internal lighting that may be visible from the exterior or Common Areas of the Building and shall have the right to change any unapproved blinds and lighting at Tenant's expense. 20. Except as provided in the Lease, Tenant shall not make any changes or alterations to any portion of the Building without Landlord's prior written approval, which may be given on such conditions as Landlord may require in its sole discretion. 21. Tenant shall not use the name of the Building in connection with or in promoting or advertising the business of Tenant except as Tenant's address, without Landlord's prior written approval, which may be given on such conditions as Landlord may require in its sole discretion. 22. Tenant shall comply with all safety, fire protection, and evacuation procedures and regulations established by Landlord or any governmental agency. Landlord has the right to evacuate the Building in the event of an emergency or catastrophe. Landlord reserves the right to prevent access to the Building in cases of invasion, mob, riot, bomb threat, public excitement or other commotion by closing the doors or by taking other appropriate action. 23. Tenant assumes any and all responsibility for protecting the Premises from theft, robbery and pilferage, which includes keeping doors locked when the Premises are not fully inhabited. 24. Smoking shall not be permitted in the building. Smoking is permitted outside the building; however, smokers must utilize the ash urns which are located outside the building. 25. Landlord has the right to designate a property management company to, among other things, monitor and enforce the Rules and Regulations. 26. Tenant is solely responsible for the cost to maintain and repair any and all "Above Standard" items installed within their Premises (i.e., computer room air conditioning unit, sinks, garbage disposals, dishwashers, custom locking devices, specialty lighting, private restroom fixtures, etc.). 27. Landlord reserves the right to rescind any of these rules and regulations and to make such other and further rules and regulations as in its sole judgment shall from time to time be required for the successful and professional operation of the Building, which rules shall be binding upon each tenant and its officers, agents, employees, guests and vendors upon delivery to tenant.  F-2 Tenant Initials EXHIBIT "F" ----------- GATEWAY OFFICE FOUR COMMENCEMENT MEMORANDUM Frontier Airlines, Inc. Re: Commencement Memorandum Dear : -------------------------- With reference to that certain lease (the "Lease"), dated December 15, 2000, between GATEWAY OFFICE FOUR, LLC, a Colorado limited liability company ("Landlord"), and Frontier Airlines, Inc., a Colorado corporation ("Tenant"), you are hereby notified of the following. All capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Lease. 1. By execution hereof, you acknowledge and agree that all improvements or other work required of us has been satisfactorily performed and you hereby accept the Premises in full compliance with the terms and conditions of the Lease. 2. The Commencement Date of the Lease was , and the Lease will expire at midnight --------------- ------------ , 20 , if not extended or renewed or terminated earlier pursuant to the Lease. ------ 3. The Premises consist of ( ) square feet of Rentable Area. -------------- ---------- 4. The prorated amount of Base Rent and Additional Rent for Operating Expenses for the partial month of is $ and $ , respectively. - ------------------------ -------------- ------------------ 5. The amount of Base Rent and Additional Rent for Operating Expenses for the first full month is $ and $ , respectively. - ----------------------- -------------------- 6. On , 20 , you deposited with us a security deposit in the amount of ------------- --- -------------------------------- Dollars ($ ). ------------ 7. Pursuant to Exhibit "K" of the Lease, you have under certain conditions a restricted right to expand the Rentable Area of the Premises to thousand ( ) square feet of contiguous --- rentable area adjacent to the Premises located on the ( th) floor of the Building. --------------- --------- Except as may be amended herein, all terms and conditions of the Lease shall continue in full force and effect and are hereby republished, ratified, and reaffirmed in their entirety. This Commencement Memorandum shall be binding upon and may be relied upon by the parties hereto and their respective legal representatives, successors, and assigns. Very truly yours, GATEWAY OFFICE FOUR, LLC, a Colorado limited liability company By: GATEWAY BUSINESS PARK, LLC, a Colorado limited liability company, its sole member By: ----------------------------------------- Paul Powers, President and Authorized Signatory Acknowledged and agreed to this day of , 20 , by ------- ---------------------- ---- company, Member Frontier Airlines, Inc., a Colorado corporation By: -------------------------------------------------- Print Name: ------------------------------------------ Print Title: -----------------------------------------  G-1 Tenant Initials EXHIBIT "G" ----------- GATEWAY OFFICE FOUR Reserved  H-3 Tenant Initials EXHIBIT "H" ----------- GATEWAY OFFICE FOUR ESTOPPEL CERTIFICATE With reference to that certain lease (the "Lease") dated December 15, 2000, between GATEWAY OFFICE FOUR, LLC, a Colorado limited liability company ("Landlord") and Frontier Airlines, Inc., a Colorado corporation ("Tenant"), you are hereby notified of the following. All capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Lease. The undersigned Tenant certifies as follows to Landlord, its actual and prospective assignees and lenders, and all actual and prospective purchasers of the Building (each of whom is irrevocably entitled to rely on this Estoppel Certificate): 1. A true, correct, and complete copy of the Lease (including all riders, attachments, amendments, and/or exhibits thereto) is attached to this instrument as Attachment 1 and represents the entire agreement between the Landlord and Tenant relating to the Premises. There are no oral or other written agreements between Landlord and Tenant relating to the Premises or the transaction contemplated by the Lease. 2. Tenant has accepted possession of the Demised Premises under the Lease, and the term of the Lease commenced on , 20 and will expire on , . ------------------------ ------ ------------------ ------ 3. By the terms of the Lease, Tenant is presently obligated to pay, without present right of defense or offset, monthly base rent of $ . Additionally, Tenant is to reimburse Landlord for --- ______________________. Tenant has no claim against Landlord for any rent paid more than thirty (30) days in advance or any deposits or other sums other than . ------------------ 4. Any improvements contemplated by the Lease have been completed in their entirety in accordance with the terms of the Lease, except for . ------------------------ 5. The address for notice to Tenant under the Lease is correct as of the date hereof. 6. Tenant has no right of first refusal, option, or other right to purchase the Premises or any part thereof, including, without limitation, the Premises. 7. The execution of the Lease was duly authorized by Tenant, is in full force and effect, and is valid, binding, and enforceable against Tenant in accordance with its terms. There exists no default, nor state of facts which with notice, the passage of time, or both, could mature into a default on the part of either Tenant or Landlord, except for . ---------------------------------------------------------------------------- 8. There has not been filed by or against nor, to Tenant's best knowledge and belief, is there threatened against or contemplated by Tenant, a petition in bankruptcy, voluntary or otherwise, any assignment for the benefit of creditors, any petition seeking reorganization or arrangement under the bankruptcy laws of the United States or any state thereof, or any other action brought under said bankruptcy laws. 9. Tenant has obtained all necessary governmental licenses and permits required to lawfully conduct its business at the Premises, including, but not limited to, business, department of health, and safety licenses or permits. 10. Tenant has not assigned or otherwise transferred its interest in the Lease to any party or sublet any portion of the Premises. 11. Pursuant to the Lease, Tenant has deposited with Landlord a security deposit in the amount of Dollars ($ ). - ------------------------------------------ ------------- 12. By the terms of the Lease, Tenant has under certain conditions a restricted right of opportunity to expand the Rentable Area of the Premises to thousand ( ) square feet of contiguous rentable area adjacent to the Premises located on the ( th) floor of the Building. Except as may be amended herein, all terms and conditions of the Lease shall continue in full force and effect and are hereby republished, ratified, and reaffirmed in their entirety. This Certificate shall be binding upon and may be relied upon by the parties hereto and their respective legal representatives, successors, and assigns. IN WITNESS WHEREOF, the parties have executed this Certificate as of the day and year first above written. LANDLORD: TENANT: GATEWAY OFFICE FOUR, LLC, FRONTIER AIRLINES, INC., a Colorado limited liability company a Colorado corporation By: GATEWAY BUSINESS PARK, LLC, a By: ----------------------------------------- Colorado limited liability company, Print Name: --------------------------------- its sole member Print Title: -------------------------------- By: ----------------------------------------- Paul Powers, President and Authorized Signatory STATE OF ) --------------------------- ) ss. COUNTY OF ) -------------------------- This instrument was acknowledged before me on , 20 by PAUL POWERS, ---- Authorized Signatory for GATEWAY OFFICE FOUR, LLC, a Colorado limited liability company. (Signature of Notarial Officer) (Seal, if any) (My Commission Expires ) ---------------------- STATE OF ) --------------------------- ) ss. COUNTY OF ) -------------------------- This instrument was acknowledged before me on , 20 by ------------------------- ---- ---------------------------------------- as of . ---------------------------------------- ------------------------------------------------- (Signature of Notarial Officer) (Seal, if any) (My Commission Expires ) ----------------------  ATTACHMENT 1 ------------ TO EXHIBIT "H" -------------- GATEWAY OFFICE FOUR LEASE AGREEMENT  I-3 Tenant Initials EXHIBIT "I" ----------- GATEWAY OFFICE FOUR SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT THIS SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT (this "Agreement") is made this day of , 20 , by and among - ---------------- ----------------------------- ------- ------------------------------------ (collectively with its assignee(s), "Lender"), GATEWAY OFFICE FOUR, LLC, a Colorado limited liability - - company ("Landlord"), and FRONTIER AIRLINES, INC., a Colorado corporation ("Tenant") with respect to (i) that certain Lease Agreement dated December 15, 2000 (the "Lease," and the premises subject thereto, the "Premises") made by and between Landlord and Tenant; and (ii) the loan or proposed loan (the "Loan") made or to be made by Lender and secured or to be secured by a deed of trust and/or other security instrument(s) (the "Deed of Trust") upon the real property which the Premises is situated on (the "Real Property"). NOW, THEREFORE, the parties agree as follows: 1. Subordination. The Lease, all renewals or modifications thereto, and all of Tenant's rights thereunder, shall be subordinate to the rights of the Lender under the Deed of Trust. 2. Attornment. Tenant shall attorn to and recognize any purchaser at a foreclosure sale under the Deed of Trust, any transferee who acquired the Real Property by deed in lieu of foreclosure, and the successors and assigns of such purchaser, as its landlord for the unexpired balance (and any extensions, if exercised) of the Lease, on the same terms and conditions as are set forth in the Lease. 3. Non-Disturbance. If it becomes necessary to foreclose the Deed of Trust, or if a purchaser or other transferee acquires the Real Property in accordance with Paragraph 2, the Lease shall remain in full force and effect and neither Lender nor such other transferee shall terminate the Lease, nor interfere with, abridge, or limit Tenant's use, possession, or enjoyment of the Premises or any of Tenant's rights and privileges under the Lease, nor join Tenant in summary or foreclosure proceedings. The preceding sentence shall apply only so long as Tenant is not in material default under any of the terms, covenants, or conditions of the Lease beyond any applicable grace or cure period. 4. Effects of Succession of Lender to Landlord's Interest in the Real Property. If Lender succeeds to the interest of Landlord under the Lease, Lender shall not be: (i) liable for any act or omission of any prior landlord (including Landlord); (ii) liable for the return of any security deposit unless such deposit has been delivered to Lender by Landlord or is in an escrow fund available to Lender; (iii) subject to any offsets or defenses that Tenant might have against any prior landlord (including Landlord); (iv) bound by any rent or additional rent that Tenant might have paid for more than the current month to any prior landlord (including Landlord); (v) bound by any amendment, modification, or termination of the Lease made without Lender's consent; or (vi) bound by any termination of the Lease given by Landlord to Tenant without Lender's prior written consent, except for any option originally granted to Tenant in the Lease to terminate all or any portion of the Lease. 5. Payments by Tenant Upon Landlord Default. Landlord has agreed under the Deed of Trust and other documents pertaining to the Loan that rentals payable under the Lease shall be paid directly by Tenant to Lender upon default by Landlord under the Deed of Trust. After receipt of notice from Lender to Tenant that rentals under the Lease shall be paid to Lender, Tenant shall pay to Lender, or at the direction of Lender, all monies due or to become due to Landlord under the Lease. Tenant shall have no responsibility to ascertain whether such demand by Lender is permitted under the Deed of Trust, or to inquire into the existence of a default. Landlord hereby waives any right, claim, or demand it may now have or hereafter have against Tenant by reason of such payment to Lender, and any such payment shall discharge the obligation of Tenant to make such payment to Landlord, and Tenant shall make such payment notwithstanding any claim from Landlord that no default by Landlord exists. Lender shall defend, indemnify, and save Tenant harmless from any claims, losses, expenses, or liabilities (including reasonable attorney fees and other costs of defense) asserted by Landlord arising out of Tenant's complying with Lender's instructions under this Paragraph. 6. Notice and Right to Cure to Lender of Defaults by Landlord Under Lease. Tenant shall give Lender, by certified mail, return receipt requested, or by commercial overnight delivery service, a copy of any notice of default Tenant serves on Landlord. If Landlord shall have failed to cure such default within the time provided for in the Lease, then Lender shall have an additional ten (10) days within which to cure any default capable to being cured by the payment of money and an additional thirty (30) days within which to cure any other default. If such default cannot be cured within that time, then Lender shall have such additional time as may be reasonably and commercially necessary to cure such default if within such thirty (30) days Lender has commenced and is diligently pursuing remedies necessary to cure such default (including, but not limited to, commencement of foreclosure proceedings, if necessary), in which event the Lease shall not be terminated while such remedies are being diligently pursued. 7. Successors and Assigns. This Agreement shall be binding on and shall inure to the benefit of the parties hereto and their successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. LENDER: By: -------------------------------------------------- Its: ------------------------------------------------- LANDLORD: TENANT: GATEWAY OFFICE FOUR, LLC, FRONTIER AIRLINES, INC., a Colorado limited liability company a Colorado corporation By: GATEWAY BUSINESS PARK, LLC, a By: ----------------------------------------- Colorado limited liability company, Print Name: --------------------------------- its sole member Print Title: -------------------------------- By: ----------------------------------------- Paul Powers, President and Authorized Signatory STATE OF ) --------------------------- ) ss. COUNTY OF ) -------------------------- This instrument was acknowledged before me on by --------------------------- ---------------------------------------------- as of . -------------------------------- --------------------------------- (Signature of Notarial Officer) (Seal, if any) (My Commission Expires ) ---------------------- STATE OF ) --------------------------- ) ss. COUNTY OF ) -------------------------- This instrument was acknowledged before me on , 20 by PAUL POWERS, ---- Authorized Signatory of GATEWAY OFFICE FOUR, LLC, a Colorado limited liability company. (Signature of Notarial Officer) (Seal, if any) (My Commission Expires ) ---------------------- STATE OF ) --------------------------- ) ss. COUNTY OF ) -------------------------- This instrument was acknowledged before me on by ------------------------ ---------------------------------------- as of . --------------------------------- ---------------------------------------- (Signature of Notarial Officer) (Seal, if any) (My Commission Expires ) ---------------------  J-1 Tenant Initials EXHIBIT "J" ----------- GATEWAY OFFICE FOUR Reserved  K-3 Tenant Initials EXHIBIT "K" ----------- GATEWAY OFFICE FOUR RIGHT OF FIRST OFFER THIS RIGHT OF FIRST OFFER is attached to the Lease between GATEWAY OFFICE FOUR, LLC, a Colorado limited liability company ("Landlord") and FRONTIER AIRLINES, INC., a Colorado corporation ("Tenant"). 1. Provided at least one year remains on the Lease Term, Tenant shall have a right of first offer with respect to any contiguous Rentable Area adjacent to the Premises which become vacant during the Lease Term (the "First Offer Space") as outlined on Attachment 1 to this Exhibit of the Lease. Notwithstanding the foregoing (i) such first offer right of Tenant shall commence only following the expiration or earlier termination of any existing lease pertaining to each such particular First Offer Space, and the first lease pertaining to each such First Offer Space entered into by Landlord after the date of this Lease (collectively, the "Superior Leases"), including any renewal of such existing or future lease, whether or not such renewal is pursuant to an express written provision in such lease, and regardless of whether any such renewal is consummated pursuant to a lease amendment or a new lease, and (ii) such first offer right shall be subordinate and secondary to all rights of expansion, first refusal, first offer or similar rights granted to (1) other tenants of the Building leasing more Rentable Area in the Building than that leased to Tenant hereunder, or (2) the tenants of the Superior Leases (the rights described in items (i) and (ii), above to be known collectively as "Superior Rights"). Tenant's right of first offer shall be on the terms and conditions set forth in this Exhibit "K." 2. Landlord shall notify Tenant from time to time when Landlord determines that Landlord shall commence the marketing of any First Offer Space because such space shall become available for lease to third parties, where no holder of a Superior Right desires to lease such space. Landlord shall notify Tenant of the availability of and offer to lease to Tenant First Offer Space by delivery to Tenant of a notice (the "First Offer Space Option Notice"), which shall (i) describe the specific First Offer Space, (ii) contain Landlord's its determination of the amount of the fair market rent for such First Offer Space, which determination shall be in the discretion of Landlord and shall be final, (iii) disclose the then existing state of improvements and condition of such space, (iv) specify the length of the term which Landlord is willing to lease such First Offer Space, and (v) set forth the approximate date Tenant would be entitled to take possession of such space. Tenant shall have ten (10) business days from receipt of the First Offer Space Option Notice to accept or reject the offer for all of such space. Tenant may exercise its right only as to all of any First Offer Space offered to Tenant and only on the terms and conditions set forth in the First Offer Space Option Notice. Any attempt to exercise its offer to less than all of any First Offer Space offered to Tenant or on terms or conditions other than as set forth in the First Offer Space Expansion Notice shall be null and void. If Tenant accepts the offer, such space shall become part of the Premises and Tenant shall be bound with respect to such space by the terms and conditions of this Lease, as modified by the First Offer Space Option Notice. If Tenant does not notify Landlord within such ten (10) business days of Tenant's acceptance of the offer for all of such space, then Landlord shall thereafter have the right to lease such space not taken by Tenant to other persons on such terms and conditions as Landlord may elect; provided, that in the event any of the financial terms set forth in the First Offer Space Option Notice are modified by more than ten (10%) percent within a period of one hundred twenty (120) days subsequent to the delivery of the First Offer Space Option Notice to Tenant, or in the event that Landlord has not entered into a lease with a third party during such one hundred twenty (120) day period, then before entering into a lease with a third party, Landlord shall deliver a First Offer Space Option Notice to Tenant to afford Tenant another opportunity to evaluate such revised terms or to reconsider its desire to lease the First Offer Space on the terms and conditions previously offered by Landlord to Tenant. 3. If Tenant timely exercises Tenant's right to lease the First Offer Space as set forth herein, Landlord and Tenant shall execute an amendment adding such First Offer Space to this Lease upon the same non-economic terms and conditions as applicable to the initial Premises (other than Tenant's Option to Terminate, which shall not apply to Tenant's lease of the First Offer Space), and the economic terms and conditions as provided in this Exhibit "K." Thereafter, the total Base Rent payable under this Lease shall be the sum of the Base Rent for all First Offer Space added to the Premises plus the Base Rent already payable under the Lease. Tenant shall commence payment of Base Rent for the First Offer Space and the Lease Term of the First Offer Space shall commence upon the date of delivery of such space to Tenant. 4. Tenant shall accept all First Offer Space in its then "as-is" condition as disclosed in the First Offer Space Option Notice and Landlord shall not be required to perform any work or furnish any materials in order to prepare such First Offer Space for Tenant's occupancy. Tenant shall be entitled to construct improvements in the First Offer Space in accordance with the provisions of this Lease including, without limitation, Exhibit "D" hereof. 5. The rights set forth in this Exhibit "K," and Landlord's obligations with respect thereto, shall be personal to the original Tenant and any assignee to which the original Tenant's entire interest in this Lease has been assigned pursuant to the Lease and may only be exercised by the original Tenant or such assignee (but not any subtenant or other person or entity). The right of first offer granted herein shall terminate as to a particular First Offer Space upon the failure by Tenant to exercise its right of first offer with respect to such First Offer Space as offered by Landlord. Tenant shall not have the right to lease First Offer Space if, as of the date of the attempted exercise of any right of first offer by Tenant, or, at Landlord's option, as of the scheduled date of delivery of such First Offer Space to Tenant, Tenant is in default under this Lease after any applicable notice and cure periods.  ATTACHMENT 1 ------------ TO EXHIBIT "K" -------------- GATEWAY OFFICE FOUR FIRST OFFER SPACE