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EXHIBIT 10.9
STANDARD INDUSTRIAL LEASE - MULTI-TENANT
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
[LOGO]
1. PARTIES. This Lease, dated, for reference purposes only, April 15,
1996, is made by and between Pacifica 67 Inverness, LLC, a Colorado limited
liability company (herein called "Lessor") and T-NETIX, Inc., a Colorado
corporation (herein called "Lessee").
2. PREMISES, PARKING AND COMMON AREAS.
2.1 PREMISES. Lessor hereby leases to Lessee and Lessee leases
from Lessor for the term, at the rental, and upon all of the conditions set
forth herein, real property situated in the County of Arapahoe, State of
Colorado commonly known as 00 Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx and
described as 37,575 square feet in a 54,280 square foot multi-tenant building
as shown on Exhibit A attached hereto, herein referred to as the "Premises", as
may be outlined on Exhibit A attached hereto, including rights to the Common
Areas as hereinafter specified but not including any rights to the roof of the
Premises or to any Building in the Industrial Center. The Premises are a
portion of a building, herein referred to as the "Building." The Premises, the
Building, the Common Areas, the land upon which the same are located may be
collectively referred to as the "Industrial Center."
2.2 VEHICLE PARKING. Lessee shall be entitled to 100 vehicle
parking spaces, unreserved and unassigned, on those portions of the Common
Areas designated by Lessor for parking. Lessee shall not use more parking
spaces than said number. Said parking spaces shall be used only for parking by
vehicles no larger than full size passenger automobiles or pick-up trucks,
herein called "Permitted Size Vehicles." Vehicles other than Permitted Size
Vehicles are herein referred to as "Oversized Vehicles."
2.2.1 Lessee shall not permit or allow any vehicles that
belong to or are controlled by Lessee or Lessee's employees, suppliers,
shippers, customers, or invitees to be loaded, unloaded, or parked in areas
other than those designated by Lessor for such activities. See Paragraph 1 of
the Addendum.
2.2.2 If Lessee permits or allows any of the prohibited
activities described in paragraph 2.2 of this Lease, then Lessor shall have the
right, without notice, in addition to such other rights and remedies that it
may have, to remove or tow away the vehicle involved and charge the cost to
Lessee, which cost shall be immediately payable upon demand by Lessor.
2.3 COMMON AREAS -- DEFINITION. The term "Common Areas" is defined
as all areas and facilities outside the Premises and within the exterior
boundary line of the Industrial Center that are provided and designated by the
Lessor from time to time for the general non-exclusive use of Lessor, Lessee
and of other lessees of the Industrial Center and their respective employees,
suppliers, shippers, customers and invitees, including parking areas, loading
and unloading areas, trash areas, roadways, sidewalks, parkways, driveways and
landscaped areas and are designated on Exhibit A hereto.
2.4 COMMON AREAS - LESSEE'S RIGHTS. Lessor hereby grants to
Lessee, for the benefit of Lessee and its employees, suppliers, shippers,
customers and invitees, during the term of this Lease, the non-exclusive right
to use, in common with others entitled to such use, the Common Areas as they
exist from time to time, subject to any rights, powers, and privileges reserved
by Lessor under the terms hereof or under the terms of any rules and
regulations or restrictions governing the use of the Industrial Center. Under
no circumstances shall the right herein granted to use the Common Areas be
deemed to include the right to store any property, temporarily or permanently,
in the Common Areas. Any such storage shall be permitted only by the prior
written consent of Lessor or Lessor's designated agent, which consent may be
revoked at any time. In the event that any unauthorized storage shall occur
then Lessor shall have the right, without notice, in addition to such other
rights and remedies that it may have, to remove the property and charge the
cost to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.5 COMMON AREAS -- RULES AND REGULATIONS. Lessor or such other
person(s) as Lessor may appoint shall have the exclusive control and management
of the Common Areas and shall have the right, from time to time, to establish,
modify, amend and enforce reasonable rules and regulations with respect
thereto. Lessee agrees to abide by and conform to all such rules and
regulations, and to cause its employees, suppliers, shippers, customers, and
invitees to so abide and conform. Lessor shall not be responsible to Lessee for
the non-compliance with said rules and regulations by other lessees of the
Industrial Center.
2.6 COMMON AREAS - CHANGES. Lessor shall have the right, in
Lessor's sole discretion, from time to time:
(a) To make changes to the Common Areas, including,
without limitation, changes in the location, size, shape and number of
driveways, entrances, parking spaces, parking areas, loading and unloading
areas, ingress, egress, direction of traffic, landscaped areas and walkways;
(b) To close temporarily any of the Common Areas for maintenance purposes so
long as reasonable access to the Premises remains available; (c) To designate
other land outside the boundaries of the Industrial Center to be a part of the
Common Areas; (d) To add additional buildings and improvements to the Common
Areas; (e) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Industrial Center, or any portion
thereof; (f) To do and perform such other acts and make such other changes in,
to or with respect to the Common Areas and Industrial Center as Lessor may, in
the exercise of sound business judgment, deem to be appropriate.
2.6.1 Lessor shall at all times provide the parking
facilities required by applicable law and in no event shall the number of
parking spaces that Lessee is entitled to under paragraph 2.2 be reduced.
3. TERM.
3.1 TERM. The term of this Lease shall be for Sixty (60) months
commencing on November 1, 1996 and ending on October 31, 2001 (THE "PRIMARY
LEASE TERM") unless sooner terminated pursuant to any provision hereof.
3.2 DELAY IN POSSESSION. Notwithstanding said commencement date,
if for any reason, Lessor cannot deliver possession of the Premises to Lessee
on said date, such failure shall not affect the validity of this Lease or the
obligations of Lessee hereunder, but in such case, Lessee shall not be
obligated to pay rent, except as may be otherwise provided in this Lease, until
possession of the Premises is tendered to Lessee. SEE PARAGRAPH 2 OF THE
ADDENDUM.
3.3 EARLY POSSESSION. If Lessee occupies the Premises prior to
said commencement date, such occupancy shall be subject to all provisions of
this Lease, such occupancy shall not advance the termination date, and Lessee
shall not pay rent for such period at the initial monthly rates set forth
below.
4. RENT.
4.1 BASE RENT. Lessee shall pay to Lessor, as Base Rent for the
Premises, without any offset or deduction, except as may be otherwise expressly
provided in this Lease, on the 1st day of each month of the term hereof,
monthly payments in advance of $34,756.88 ($11.10 psf per year) subject to
adjustments as defined in PARAGRAPH 3 OF the Addendum. Rent for any period
during the term hereof which is for less than one month shall be a pro rata
portion of the Base Rent. Rent shall be payable in lawful money of the United
States to Lessor at the address stated herein or to such other persons or at
such other places as Lessor may designate in writing.
4.2 OPERATING EXPENSES. Lessee shall pay to Lessor during the
term hereof, in addition to the Base Rent, Lessee's Share, as hereinafter
defined, of all Operating Expenses, as hereinafter defined, during each
calendar year of the term of this Lease, in accordance with the following
provisions:
(a) "Lessee's Share" is defined, for purposes of this
Lease, as 69.22 percent.
(b) "Operating Expenses" is defined, for purposes of this
Lease, as all costs incurred by Lessor, if any, related to the Industrial Center
except as may be expressly excluded hereunder, including, without limitation:
(i) The operation, repair and maintenance, in
neat, clean, good order and condition, of the following:
(aa) The Common areas, including parking
areas, loading and unloading areas, trash areas, roadways, sidewalks,
walkways, parkways, driveways, landscaped areas, striping, bumpers, irrigation
systems, Common Area lighting facilities and fences and gates;
(bb) Snow removal services and parking
lot sweeping;
(cc) Tenant directories;
(dd) Fire detection systems including
sprinkler system maintenance and repair;
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(ee) roof and exterior walls, excluding
(i) those items for which Lessor has
a valid warranty; and (ii) roof
replacement.
(ff) professional management fees in any
calendar year, which shall not
exceed the amounts described in
Paragraph 4.A of the Addendum.
(gg) exterior painting shall be part of
Common Area Expenses.
(hh) Security services.
(ii) Any other service to be provided by
Lessor that is elsewhere in this
Lease stated to be an "Operating
Expense."
(ii) Any deductible portion of an insured loss
concerning any of the items or matters described in paragraph
4.2;
(iii) The cost of the premiums for the liability and
property insurance policies to be maintained by Lessor under
paragraph 8 hereof;
(iv) The amount of the real property tax to be
paid by Lessor under paragraph 10.1 hereof;
(v) The cost of water, gas and electricity to
service the Common Areas.
(c) The inclusion of the improvements, facilities and
services set forth in paragraph 4.2(b)(i) of the definition of Operating
Expenses shall not be deemed to impose an obligation upon Lessor to either have
said improvements or facilities or to provide those services unless the
Industrial Center already has the same, Lessor already provides the services,
or Lessor has agreed elsewhere in this Lease to provide the same or some of
them.
(d) Lessee's Share of Operating Expenses shall be payable
by Lessee within ten (10) days after a reasonably detailed statement of actual
expenses is presented to Lessee by Lessor. At Lessor's option, however, an
amount may be estimated by Lessor from time to time of Lessee's Share of annual
Operating Expenses and the same shall be payable monthly or quarterly, as
Lessor shall designate, during each twelve-month period of the Lease term, on
the same day as the Base Rent is due hereunder. In the event that Lessee pays
Lessor's estimate of Lessee's Share of Operating Expenses as aforesaid, Lessor
shall deliver to Lessee within one hundred eighty (180) days after the
expiration of each calendar year a reasonably detailed statement showing
Lessee's Share of the actual Operating Expenses incurred during the preceding
year. If Lessee's payments under this paragraph 4.2(d) during said preceeding
year exceed Lessee's Share as indicated on said statement, Lessee shall be
entitled to credit the amount of such overpayment against Lessee's Share of
Operating Expenses next falling due. If Lessee's payments under this paragraph
during said preceding year were less than Lessee's Share as indicated on said
statement, Lessee shall pay Lessor the amount of the deficiency within ten (10)
days after delivery by Lessor to Lessee of said statement. Lessor's failure to
deliver statement of Lessee's share within 180 days shall be conclusive that
Lessee owes no deficiency for such calendar year. SEE PARAGRAPH 4 OF THE
ADDENDUM.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution
hereof $34,756.88 as security for Lessee's faithful performance of Lessee's
obligations hereunder. If Lessee fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this Lease,
Lessor may use, apply or retain all or any portion of said deposit for the
payment of any rent or other charge in default or for the payment of any other
sum to which Lessor may become obligated by reason of Lessee's default, or to
compensate Lessor for any loss or damage which Lessor may suffer thereby. If
Lessor so uses or applies all or any portion of said deposit, Lessee shall
within ten (10) days after written demand therefor deposit cash with Lessor in
an amount sufficient to restore said deposit to the full amount then required
of Lessee. Lessor shall not be required to keep said security deposit separate
from its general accounts. If Lessee performs all of Lessee's obligations
hereunder, said deposit, or so much thereof as has not theretofore been applied
by Lessor, shall be returned, without payment of interest or other increment
for its use, to Lessee (or, at Lessor's option, to the last assignee, if any,
of Lessee's interest hereunder) at the expiration of the term hereof, and after
Lessee has vacated the Premises. No trust relationship is created herein
between Lessor and Lessee with respect to said Security Deposit. SEE PARAGRAPH
5 OF THE ADDENDUM.
6. USE.
6.1 USE. The Premises shall be used and occupied only for general
office and warehouse use or any other use which is reasonably comparable and
for no other purpose. SEE PARAGRAPH 6 OF THE ADDENDUM.
6.2 COMPLIANCE WITH LAW.
(a) Lessor warrants to Lessee that the Premises, in the
state existing on the date that the Lease term commences, but without regard to
the use for which Lessee will occupy the Premises, does not violate any
covenants or restrictions of record, or any applicable building code,
regulation or ordinance in effect on such Lease term commencement date. In the
event it is determined that this warranty has been violated, then it shall be
the obligation of the Lessor, after written notice from lessee, to promptly, at
Lessor's sole cost and expense, rectify any such violation. In the event Lessee
does not give Lessor written notice of the violation of this warranty within
six months from the date that the Lease term commences, the correction of same
shall be the obligation of the Lessee at Lessee's sole cost. The warranty
contained in this paragraph 6.2(a) shall be of no force or effect if, prior to
the date of this Lease, Lessee was an owner or occupant of the Premises and, in
such event, Lessee shall correct any such violation at Lessee's sole cost.
(b) Except as provide in paragraph 6.2(a) Lessee shall,
at Lessee's expense, promptly comply with all applicable statutes, ordinances,
rules, regulations, orders, covenants and restrictions of record, and
requirements of any fire insurance underwriters or rating bureaus, now in
effect or which may hereafter come into effect, whether or not they reflect a
change in policy from that now existing, during the term or any part of the
term hereof, relating in any manner to the Premises and the occupation and use
by Lessee of the Premises and of the Common Areas. Lessee shall not use nor
permit the use of the Premises or the Common Areas in any manner that will tend
to create waste or a nuisance or shall tend to disturb other occupants of the
Industrial Center.
6.3 CONDITION OF PREMISES.
(a) Lessor shall deliver the Premises to Lessee clean and
free of debris on the Lease commencement date (unless Lessee is already in
possession) and Lessor warrants to Lessee that the plumbing, lighting, air
conditioning, heating, and loading doors in the Premises shall be in good
operating condition on the Lease commencement date. In the event that it is
determined that this warranty has been violated, then it shall be the
obligation of Lessor, after receipt of written notice from Lessee setting forth
with specificity the nature of the violation, to promptly, at Lessor's sole
cost, rectify such violation. Lessee's failure to give such written notice to
Lessor within thirty (30) days after the Lease commencement date shall cause
the conclusive presumption that Lessor has complied with all of Lessor's
obligations hereunder. The warranty contained in this paragraph 6.3(a) shall be
of no force or effect if prior to the date of this Lease, Lessee was an owner
or occupant of the Premises.
(b) Except as otherwise provided in this Lease, Lessee
hereby accepts the Premises in their condition existing as of the Lease
commencement date or the date that Lessee takes possession of the Premises,
whichever is earlier, subject to all applicable zoning, municipal, county and
state laws, ordinances and regulations governing and regulating the use of the
Premises, and any covenants or restrictions of record, and accepts this Lease
subject thereto and to all matters disclosed thereby and by any exhibits
attached hereto. Lessee acknowledges that neither Lessor nor Lessor's agent had
made any representation or warranty as to the present or future suitability of
the Premises for the conduct of Lessee's business.
7. MAINTENANCE, REPAIRS, ALTERATIONS AND COMMON AREA SERVICES.
7.1 LESSOR'S OBLIGATIONS. Subject to the provisions of paragraphs
4.2 (Operating Expenses), 6 (Use), 7.2 (Lessee's Obligations) and 9 (Damage or
Destruction) and except for damage caused by any negligent or intentional act
or omission of Lessee, Lessee's employees, suppliers, shippers, customers, or
invitees, in which event Lessee shall repair the damage, Lessor, at Lessor's
expense, subject to reimbursement pursuant to paragraph 4.2, shall keep in good
condition and repair the foundations, exterior walls, structural condition of
interior bearing walls, and roof of the Premises, as well as the parking lots,
walkways, driveways, landscaping, fences, signs and utility installations of
the Common Areas and all parts thereof, as well as providing the services for
which there is an operating Expense pursuant to paragraph 4.2. Lessor shall
not, however, be obligated to paint the exterior or interior surface of
exterior walls, nor shall Lessor be required to maintain, repair or replace
windows, doors or plate glass of the Premises. Lessor shall have no obligation
to make repairs under this paragraph 7.1 until a reasonable time after receipt
of written notice from Lessee of the need for such repairs. Lessee expressly
waives the benefits of any statute now or hereafter in effect which would
otherwise afford Lessee the right to make repairs at Lessor's expense or to
terminate this Lease because of Lessor's failure to keep the Premises in good
order, condition and repair. Lessor shall not be liable for damages or loss of
any kind or nature by reason of Lessor's failure to furnish any Common Area
Services when such failure is caused by accident, breakage, repairs, strikes,
lockout, or other labor disturbances or disputes of any character, or by any
other cause beyond the reasonable control of Lessor.
7.2 LESSEE'S OBLIGATIONS. LESSEE SHALL BE RESPONSIBLE FOR TRASH
REMOVAL.
(a) Subject to the provisions of paragraphs 6 (Use). 7.1
(Lessor's Obligations), and 9 (Damage or Destruction). Lessee, at Lessee's
expense, shall keep in good order, condition and repair the Premises and every
part thereof (whether or not the damaged portion of the Premises or the means
of repairing the same are reasonably or readily accessable to Lessee)
including, without limiting the generality of the foregoing, all plumbing,
heating, ventilating and air conditioning, systems (Lessee shall procure and
maintain, at Lessee's expense, a ventilating and air conditioning system
maintenance contract), electrical and lighting facilities and equipment within
the Premises, fixtures, interior walls and interior surfaces of exterior walls,
ceilings, windows, doors, plate glass and skylights located within the
Premises. Lessor reserves the right to procure and maintain the ventilating and
air conditioning system maintenance contract and the trash removal contract and
if Lessor so elects, Lessee shall reimburse Lessor, upon demand, for the cost
thereof.
(b) If Lessee fails to perform Lessee's obligations under
this paragraph 7.2 or under any other paragraph of this Lease, Lessor may enter
upon the Premises after ten (10) days' prior written notice to Lessee (except
in the case of emergency, in which no notice shall be required), perform such
obligations on Lessee's behalf and put the Premises in good order, condition
and repair, and the cost thereof together with interest thereon at the maximum
rate then allowable by law shall be due and payable as additional rent to
Lessor together with Lessee's next Base Rent installment.
(c) On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same
condition as received, ordinary wear and tear excepted, clean and free of
debris. Any damage or deterioration of the Premises shall not be deemed
ordinary by the installation or removal of Lessee's trade, fixtures,
alterations, furnishings and equipment. Notwithstanding anything to the
contrary otherwise stated in this Lease, Lessee shall leave the air lines,
power panels, electrical distribution systems, lighting fixtures, space
heaters, air conditioning, plumbing and fencing on the Premises in good
operating condition. See Paragraph 7 of the Addendum.
7.3 ALTERATIONS AND ADDITIONS.
(a) Lessee shall not, without Lessor's prior written
consent make any alterations, improvements, additions, or Utility Installations
in, on or about the Premises, or the Industrial Center, except for
nonstructural interior alterations to the Premises not exceeding $25,000.00 in
cumulative costs, during the term of this Lease. In any event, whether or not
in excess of $25,000.00 in cumulative cost, Lessee shall make no change or
alteration to the
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exterior of the Premises nor the exterior of the Building nor the Industrial
Center without Lessor's prior written consent. As used in this paragraph 7.3
the term "Utility Installation" shall mean carpeting, window coverings, air
lines, power panels, electrical distribution systems, lighting fixtures, space
heaters, air conditioning, plumbing, and fencing. Lessor may require that
Lessee remove any or all of said alterations, improvements, additions or
Utility Installations at the expiration of the term, and restore the Premises
and the Industrial Center to their prior condition. Lessor may require Lessee
to provide Lessor, at Lessee's sole cost and expense, a lien and completion
bond in an amount equal to one and one-half times the estimated cost of such
improvements, to insure Lessor against any liability for mechanic's and
materialmen's liens and to insure completion of the work. Should Lessee make
any alterations, improvements, additions or Utility Installations without the
prior approval of Lessor. Lessor may, at any time during the term of this
Lease, require that Lessee remove any or all of the same.
(b) Any alterations, improvements, additions or Utility
Installations in or about the Premises or the Industrial Center that Lessee
shall desire to make and which requires the consent of the Lessor shall be
presented to Lessor in written form, with proposed detailed plans. If Lessor
shall be presented to Lessor in written form, with proposed detailed plans. If
Lessor shall give its consent, the consent shall be deemed conditioned upon
Lessee acquiring a permit to do so from appropriate governmental agencies, the
furnishing of a copy thereof to Lessor prior to the commencement of the work
and the compliance by Lessee of all conditions of said permit in a prompt and
expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or
materials furnished or alleged to have been furnished to or for Lessee at or
for use in the Premises, which claims are or may be secured by any mechanic's
or materialmen's lien against the Premises, or the Industrial Center, or any
interest therein. Lessee shall give Lessor not less than ten (10) days' notice
prior to the commencement of any work in the Premises, and Lessor shall have
the right to post notices of non-responsibility in or on the Premises or the
Buildings as provided by law. If Lessee shall, in good faith, contest the
validity of any such lien, claim or demand, then Lessee shall, at its sole
expense defend itself and Lessor against the same and shall pay and satisfy any
such adverse judgment that may be rendered thereon before the enforcement
thereof against the Lessor or the Premises or the Industrial Center, upon the
condition that if Lessor shall require, Lessee shall furnish to Lessor a surety
bond satisfactory to Lessor in an amount equal to such contested lien claim or
demand indemnifying Lessor against liability for the same and holding the
Premises and the Industrial Center free from the effect of such lien or claim.
In addition, Lessor may require Lessee to pay Lessor's attorneys fees and costs
in participating in such action if Lessor shall decide it is to Lessor's best
interest to do so.
(d) All alterations, improvements, additions and Utility
Installations (whether or not such Utility Installations constitute trade
fixtures of Lessee), which may be made on the Premises, shall be the property
of Lessor and shall remain upon and be surrendered with the Premises at the
expiration of the Lease term, unless Lessor requires their removal pursuant to
paragraph 7.3(a). Notwithstanding the provisions of this paragraph 7.3(d),
Lessee's machinery and equipment, other than that which is affixed to the
Premises so that it cannot be removed without material damage to the Premises,
and other than Utility Installations, shall remain the property of Lessee and
may be removed by Lessee subject to the provisions of paragraph 7.2, except as
expressly provided to the contrary in this Lease.
7.4 UTILITY ADDITIONS. Lessor reserves the right to install new or
additional utility facilities throughout the Building and the Common Areas for
the benefit of Lessor or Lessee, or any other lessee of the Industrial Center,
including, but not by way of limitation, such utilities as plumbing, electrical
systems, security systems, communication systems, and fire protection and
detection systems, so long as such installations do not unreasonably interfere
with Lessee's use of the Premises.
8. INSURANCE; INDEMNITY.
8.1 LIABILITY INSURANCE -- LESSEE. Lessee shall, at Lessee's
expense, obtain and keep in force during the term of this Lease a policy of
Combined Single Limit Bodily Injury and Property Damage insurance insuring
Lessee and Lessor against any liability arising out of the use, occupancy or
maintenance of the Premises and the Industrial Center. Such insurance shall be
in an amount not less than $1,000,000 per occurrence. The policy shall insure
performance by Lessee of the indemnity provisions of this paragraph 8. The
limits of said insurance shall not, however, limit the liability of Lessee
hereunder. The policy shall name Lessor as an additional insured.
8.2 LIABILITY INSURANCE -- LESSOR. Lessor shall obtain and keep in
force during the term of this Lease a policy of Combined Single Limit Bodily
Injury and Property Damage Insurance, insuring Lessor, but not Lessee, against
any liability arising out of the ownership, use, occupancy or maintenance of
the Industrial Center in an amount not less than $1,000,000 per occurrence.
8.3 PROPERTY INSURANCE. Lessor shall obtain and keep in force
during the term of this Lease a policy or policies of insurance covering loss
or damage to the Industrial Center improvements, but not Lessee's personal
property, fixtures, equipment or tenant improvements paid for by Lessee in an
amount not to exceed the full replacement value thereof, as the same may exist
from time to time, providing protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief, flood
(in the event same is required by a lender having a lien on the Premises)
special extended perils ("all risk", as such term is used in the insurance
industry), plate glass insurance and such other insurance as Lessor deems
advisable. In addition, Lessor shall obtain and keep in force, during the term
of this Lease, a policy of rental value insurance covering a period of one
year, with loss payable to Lessor, which insurance shall also cover all
Operating Expenses for said period. In the event that the Premises shall suffer
an insured loss as defined in paragraph 9.1(g) hereof, the deductible amounts
under the casualty insurance policies relating to the Premises shall be paid by
Lessee. See Paragraph 8 of the Addendum.
8.4 PAYMENT OF PREMIUM INCREASE.
(a) After the term of this Lease has commenced, Lessee
shall not be responsible for paying Lessee's Share of any increase in the
property insurance premium for the Industrial Center specified by Lessor's
insurance carrier as being caused by the use, acts or omissions of any other
lessee of the Industrial Center, or by the nature of such other lessee's
occupancy which create an extraordinary or unusual risk.
(b) Lessee, however, shall pay the entirety of any
increase in the property insurance premium for the Industrial Center over what
it was immediately prior to the commencement of the term of this Lease if the
increase is specified by Lessor's insurance carrier as being caused by the
nature of Lessee's occupancy or any act or omission of Lessee.
8.5 INSURANCE POLICIES. Insurance required hereunder shall be in
companies holding a "General Policyholders Rating" of at least B plus, or such
other rating as may be required by a lender having a lien on the Premises, as
set forth in the most current issue of "Best's Insurance Guide." Lessee shall
not do or permit to be done anything which shall invalidate the insurance
policies carried by Lessor. Lessee shall deliver to Lessor copies of liability
insurance policies required under paragraph 8.1 or certificates evidencing the
existence and amounts of such insurance within seven (7) days after the
commencement date of this Lease. No such policy shall be cancellable or subject
to reduction of coverage or other modification except after thirty (30) days
prior written notice to Lessor. Lessee shall, at least thirty (30) days prior
to the expiration of such policies, furnish Lessor with renewals or "binders"
thereof.
8.6 WAIVER OF SUBROGATION. Lessee and Lessor each hereby release
and relieve the other, and waive their entire right of recovery against the
other for loss or damage arising out of or incident to the perils insured
against which perils occur in, on or about the Premises, whether due to the
negligence of Lessor or Lessee or their agents, employees, contractors and/or
invitees. Lessee and Lessor shall, upon obtaining the policies of insurance
required give notice to the insurance carrier or carriers that the foregoing
mutual waiver of subrogation is contained in this Lease.
8.7 INDEMNITY. Lessee shall indemnify and hold harmless Lessor,
its agents, employees and affiliates from and against any and all claims
arising from Lessee's use of the Industrial Center, or from the conduct of
Lessee's business or from any activity, work or things done, permitted or
suffered by Lessee in or about the Premises or elsewhere and shall further
indemnify and hold harmless Lessor, its agents, employees and affiliates from
and against any and all claims arising from any breach or default in the
performance of any obligaiton on Lessee's part to be performed under the terms
of this Lease, or arising from any act or omission of Lessee, or any of
Lessee's agents, contractors, or employees, and from and against all costs,
attorney's fees, judgments, claims, liens, penalties, consultants' fees,
expenses and liabilities incurred in the defense of any such claim or any
action or proceeding brought thereon; and in case any action or proceeding be
brought against Lessor, its agents, employees and affiliates, by reason of any
such claim. Lessee upon notice from Lessor shall defend the same at Lessee's
expense by counsel reasonably satisfactory to Lessor and Lessor shall cooperate
with Lessee in such defense. Lessee, as a material part of the consideration to
Lessor, hereby assumes all risk of damage to property of Lessee or injury to
persons, in, upon or about the Industrial Center arising from any cause and
Lessee hereby waives all claims in respect thereof against Lessor, its agents,
employees and affiliates. See Paragraph 9 of the Addendum.
8.8 EXEMPTION OF LESSOR FROM LIABILITY. Lessee hereby agrees that
Lessor shall not be liable for injury to Lessee's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other
property of Lessee, Lessee's employees, invitees, customers, or any other
person in or about the Premises or the Industrial Center, nor shall Lessor be
liable for injury to the person of Lessee, Lessee's employees, agents or
contractors, whether such damage or injury is caused by or results from fire,
steam, electricity, gas, water or rain, or from the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures, or from any other cause, whether said
damage or injury results from conditions arising upon the Premises or upon
other portions of the Industrial Center, or from other sources or places and
regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Lessee. Lessor shall not be liable for
any damages arising from any act or neglect of any other lessee, occupant or
user of the Industrial Center, nor from the failure of Lessor to enforce the
provisions of any other lease of the Industrial Center.
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "Premises Partial Damage" shall mean if the Premises
are damaged or destroyed to the extent that the cost of repair is less than
fifty percent of the then replacement cost of the Premises.
(b) "Premises Total Destruction" shall mean if the
Premises are damaged or destroyed to the extent that the cost of repair is
fifty percent or more of the then replacement cost of the Premises.
(c) "Premises Building Partial Damage" shall mean if the
Building of which the Premises are a part is damaged or destroyed to the extent
that the cost to repair is less than fifty percent of then replacement cost of
the Building.
(d) "Premises Building Total Destruction" shall mean if
the Building of which the Premises are a part is damaged or destroyed to the
extent that the cost to repair is fifty percent or more of the then replacement
cost of the Building.
(e) "Industrial Center Buildings" shall mean the building
on the Industrial Center site.
(f) "Industrial Center Buildings Total Destruction" shall
mean if the Industrial Center Buildings are damaged or destroyed to the extent
that the cost of repair is fifty percent or more of then replacement cost of
the Industrial Center Buildings.
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(g) "Insured Loss" shall mean damage or destruction which
was covered by an event required to be covered by the insurance described in
paragraph 8. The fact that an Insured Loss has a deductible amount shall not
make the loss an uninsured loss.
(h) "Replacement Cost" shall mean the amount of money
necessary to be spent in order to repair or rebuild the damaged area to the
condition that existed immediately prior to the damage occurring excluding all
improvements made by lessees.
9.2 PREMISES PARTIAL DAMAGE; PREMISES BUILDING PARTIAL DAMAGE.
(a) Insured Loss: Subject to the provisions of paragraphs
9.4 and 9.5, if at any time during the term of this Lease there is damage which
is an Insured Loss and which falls into the classification of either Premises
Partial Damage or Premises Building Partial Damage, then Lessor shall, at
Lessor's expense, repair such damage to the Premises, but not Lessee's
fixtures, equipment or tenant improvements, as soon as reasonably possible and
this Lease shall continue in full force and effect.
(b) Uninsured Loss: Subject to the provisions of
paragraphs 9.4 and 9.5, if at any time during the term of this Lease there is
damage which is not an Insured Loss and which falls within the classification
of Premises Partial Damage or Premises Building Partial Damage, unless caused by
a negligent or willful act of Lessee (in which event Lessee shall make the
repairs at Lessee's expense), which damage prevents Lessee from using the
Premises, Lessor may at Lessor's option either (i) repair such damage as soon
as reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or (ii) give written notice to Lessee within
thirty (30) days after the date of the occurrence of such damage of Lessor's
intention to cancel and terminate this Lease as of the date of the occurrence
of such damage. In the event Lessor elects to give such notice of Lessor's
intention to cancel and terminate this Lease, Lessee shall have the right
within ten (10) days after the receipt of such notice to give written notice to
Lessor of Lessee's intention to repair such damage at Lessee's expense, without
reimbursement from Lessor, in which event this Lease shall continue in full
force and effect, and Lessee shall proceed to make such repairs as soon as
reasonably possible. If Lessee does not give such notice within such 10-day
period this Lease shall be cancelled and terminated as of the date of the
occurrence of such damage.
9.3 PREMISES TOTAL DESTRUCTION; PREMISES BUILDING TOTAL
DESTRUCTION; INDUSTRIAL CENTER BUILDINGS TOTAL DESTRUCTION.
(a) Subject to the provisions of paragraphs 9.4 and 9.5,
if at any time during the term of this Lease there is damage, whether or not it
is an Insured Loss, and which falls into the classifications of either (i)
Premises Total Destruction, or (ii) Premises Building Total Destruction, or
(iii) Industrial Center Buildings Total Destruction, then Lessor may at
Lessor's option either (i) repair such damage or destruction, but not Lessee's
fixtures, equipment or tenant improvements, as soon as reasonably possible at
Lessor's expense, and this Lease shall continue in full force and effect, or
(ii) give written notice to Lessee within thirty (30) after the date of
occurrence of such damage of Lessor's intention to cancel and terminate this
Lease, in which case this Lease shall be cancelled and terminated as of the
date of the occurrence of such damage.
9.4 DAMAGE NEAR END OF TERM.
(a) Subject to paragraph 9.4(b), if at any time during
the last six months of the term of this Lease there is substantial damage,
whether or not an Insured Loss; which falls within the classification of
Premises Partial Damage, Lessor may at Lessor's option cancel and terminate
this Lease as of the date of occurrence of such damage by giving written notice
to Lessee of Lessor's election to do so within 30 days after the date of
occurrence of such damage.
(b) Notwithstanding paragraph 9.4(a), in the event that
Lessee has an option to extend or renew this Lease, and the time within which
said option may be exercised has not yet expired, Lessee shall exercise such
option, if it is to be exercised at all, no later than twenty (20) days after
the occurrence of an Insured Loss falling within the classification of Premises
Partial Damage during the last six months of the term of this Lease. If Lessee
duly exercises such option during said twenty (20) day period, Lessor shall, at
Lessor's expense, repair such damage, but not Lessee's fixtures, equipment or
tenant improvements, as soon as reasonably possible and this Lease shall
continue in full force and effect. If Lessee fails to exercise such option
during said twenty (20) day period, then Lessor may at Lessor's option
terminate and cancel this Lease as of the expiration of said twenty (20) day
period by giving written notice to Lessee of Lessor's election to do so within
ten (10) days after the expiration of said twenty (20) day period,
notwithstanding any term or provision in the grant of option to the contrary.
9.5 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) In the event Lessor repairs or restores the Premises
pursuant to the provisions of this paragraph 9, the rent payable hereunder for
the period during which such damage, repair or restoration continues shall be
abated from the date of such damage, in proportion to the degree to which
Lessee's use of the Premises is impaired. Except for abatement of rent, if
any, Lessee shall have no claim against Lessor for any damage suffered by
reason of any such damage, destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the
Premises under the provisions of this paragraph 9 and shall not commence such
repair or restoration within ninety (90) days after such obligation shall
accrue. Lessee may at Lessee's option cancel and terminate this Lease by giving
Lessor written notice of Lessee's election to do so at any time prior to the
commencement of such repair or restoration. In such event this Lease shall
terminate as of the date of such notice.
9.6 TERMINATION -- ADVANCE PAYMENTS. Upon termination of this
Lease pursuant to this paragraph 9, an equitable adjustment shall be made
concerning advance rent and any advance payments made by Lessee to Lessor.
Lessor shall, in addition, return to Lessee so much of Lessee's security
deposit as has not theretofore been applied by Lessor.
9.7 WAIVER. Lessor and Lessee waive the provisions of any statute
which relate to termination of leases when leased property is destroyed and
agree that such event shall be governed by the terms of this Lease.
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Lessor shall pay the real property tax, as
defined in paragraph 10.3, applicable to the Industrial Center subject to
reimbursement by Lessee of Lessee's Share of such taxes in accordance with the
provisions of paragraph 4.2, except as otherwise provided in paragraph 10.2
10.2 ADDITIONAL IMPROVEMENTS. Lessee shall not be responsible for
paying Lessee's Share of any increase in real property tax specified in the tax
assessor's records and work sheets as being caused by additional improvements
placed upon the Industrial Center by other lessees or by Lessor for the
exclusive enjoyment of such other lessees. Lessee shall, however, pay to Lessor
at the time that Operating Expenses are payable under paragraph 4.2(c) the
entirety of any increase in real property tax if assessed solely by reason of
additional improvements placed upon the Premises by Lessee or at Lessee's
request.
10.3 DEFINITION OF "REAL PROPERTY TAX." As used herein, the term
"real property tax" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed on the Industrial Center or any
portion thereof by any authority having the direct or indirect power to tax,
including any city, county, state or federal government, or any school,
agricultural, sanitary, fire, street, drainage or other improvement district
thereof, as against any legal or equitable interest of Lessor in the Industrial
Center or in any portion thereof, as against Lessor's right to rent or other
income therefrom, and as against Lessor's business of leasing the Industrial
Center. The term "real property tax" shall also include any tax, fee, levy,
assessment or charge (i) in substitution of, partially or totally, any tax,
fee, levy, assessment or charge hereinabove included within the definition of
"real property tax," or (ii) the nature of which was hereinbefore included
within the definition of "real property tax," or (v) which is imposed by reason
of this transaction, any modifications or changes hereto, or any transfers
hereof.
10.4 JOINT ASSESSMENT. If the Industrial Center is not separately
assessed, Lessee's Share of the real property tax liability shall be an
equitable proportion of the real property taxes for all of the land and
improvements included within the tax parcel assessed, such proportion to be
determined by Lessor from the respective valuations assigned in the assessor's
work sheets or such other information as may be reasonably available. Lessor's
reasonable determination thereof, in good faith, shall be conclusive.
10.5 PERSONAL PROPERTY TAXES.
(a) Lessee shall pay prior to delinquency all taxes
assessed against and levied upon trade fixtures, furnishings, equipment
and all other personal property of Lessee contained in the Premises or
elsewhere. When possible, Lessee shall cause said trade fixtures, furnishings,
equipment and all other personal property to be assessed and billed separately
from the real property of Lessor.
(b) If any of Lessee's said personal property shall be
assessed with Lessor's real property, Lessee shall pay to Lessor the taxes
attributable to Lessee within ten (10) days after receipt of a written
statement setting forth the taxes applicable to Lessee's property.
11. UTILITIES. Lessee shall pay for all water, gas, heat, light,
power, telephone and other utilities and services supplied to the Premises,
together with any taxes thereon. If any such services are not separately
metered to the Premises. Lessee shall pay at Lessor's option, either Lessee's
Share or a reasonable proportion to be determined by Lessor of all charges
jointly metered with other premises in the Building.
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interest in the Lease or in the Premises,
without Lessor's prior written consent, which Lessor shall not unreasonably
withhold. Lessor shall respond to Lessee's request for consent hereunder in a
timely manner and any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void, and shall constitute a breach of
this Lease without the need for notice to Lessee under paragraph 13.1.
12.2 LESSEE AFFILIATE. Notwithstanding the provisions of paragraph
12.1 hereof, Lessee may assign or sublet the Premises, or any portion thereof,
without Lessor's consent, to any corporation which controls, is controlled by
or is under common control with Lessee, or to any corporation resulting from
the merger or consolidation with Lessee, or to any person or entity which
acquires all the assets of Lessee as a going concern of the business that is
being conducted on the Premises, all of which are referred to as "Lessee
Affiliate," provided that before such assignment shall be effective said
assignee shall assume, in full, the obligations of Lessee under this Lease. Any
such assignment shall not, in any
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way, affect or limit the liability of Lessee under the terms of this Lease even
if after such assignment or subletting the terms of this Lease are materially
changed or altered without the consent of Lessee, the consent of whom shall not
be necessary.
12.3 TERMS AND CONDITIONS OF ASSIGNMENT. Regardless of Lessor's
consent, no assignment shall release Lessee of Lessee's obligations hereunder
or alter the primary liability of Lessee to pay the Base Rent and Lessee's
Share of Operating Expenses, and to perform all other obligations to be
performed by Lessee hereunder. Lessor may accept rent from any person other
than Lessee pending approval or disapproval of such assignment. Neither a delay
in the approval or disapproval of such assignment nor the acceptance of rent
shall constitute a waiver or estoppel assignment shall not be deemed consent to
any subsequent assignment. In the event of default by any assignee of Lessee or
any successor of Lessee, in the performance of any of the terms hereof. Lessor
may proceed directly against Lessee without the necessity of exhausting
remedies against said assignee. Lessor may consent to subsequent assignments of
this Lease or amendments or modifications to this Lease with assignees of
Lessee, without notifying Lessee, or any successor of Lessee, and without
obtaining its or their consent thereto and such action shall not relieve Lessee
of liability under this Lease.
12.4 TERMS AND CONDITIONS APPLICABLE TO SUBLETTING. Regardless of
Lessor's consent, the following terms and conditions shall apply to any
subletting by Lessee of all or any part of the Premises and shall be included
in subleases:
(a) Lessee hereby assigns and transfers to Lessor all of
Lessee's interest in all rentals and income arising from any sublease
heretofore or hereafter made by Lessee, and Lessor may collect such rent and
income and apply same toward Lessee's obligations under this Lease; provided,
however, that until a default shall occur in the performance of Lessee's
obligations under this Lease. Lessee may receive, collect and enjoy the rents
accruing under such sublease. Lessor shall not, by reason of this or any other
assignment of such sublease to Lessor nor by reason of the collection of the
rents from a sublessee, be deemed liable to the sublessee for any failure of
Lessee to perform and comply with any of Lessee's obligations to such sublessee
under such sublease. Lessee hereby irrevocably authorizes and directs any such
sublessee, upon receipt of a written notice from Lessor stating that a default
exists in the performance of Lessee's obligations under this Lease, to pay to
Lessor the rents due and to become due under the sublease. Lessee agrees that
such sublessee shall have the right to rely upon any such statement and request
from Lessor, and that such sublessee shall pay such rents to Lessor without any
obligation or right to inquire as to whether such default exists and
notwithstanding any notice from or claim from Lessee to the contrary. Lessee
shall have no right or claim against such sublessee or Lessor for any such
rents so paid by said sublessee to Lessor.
(b) No sublease entered into by Lessee shall be effective
unless and until it has been approved in writing by Lessor. In entering into
any sublease, Lessee shall use only such form of sublease as its satisfactory
to Lessor, and once approved by Lessor, such sublease shall not be changed or
modified without Lessor's prior written consent. Any sublessee shall, by reason
of entering into a sublease under this Lease, be deemed, for the benefit of
Lessor, to have assumed and agreed to conform and comply with each and every
obligation herein to be performed by Lessee other than such obligations as are
contrary to or inconsistent with provisions contained in a sublease to which
Lessor has expressly consented in writing.
(c) If Lessee's obligations under this Lease have been
guaranteed by third parties, then a sublease, and Lessor's consent thereto,
shall not be effective unless said guarantors give their written consent to
such sublease and the terms thereof.
(d) The consent by Lessor to any subletting shall not
release Lessee from its obligations or alter the primary liability of Lessee to
pay the rent and perform and comply with all of the obligations of Lessee to be
performed under this Lease.
(e) The consent by Lessor to any subletting shall not
constitute a consent to any subsequent subletting by Lessee or to any
assignment or subletting by the sublessee. However, Lessor may consent to
subsequent sublettings and assignments of the sublease or any amendments or
modifications thereto without notifying Lessee or anyone else liable on the
Lease or sublease and without obtaining their consent and such action shall not
relieve such persons from liability.
(f) In the event of any default under this Lease, Lessor
may proceed directly against Lessee, any guarantors or any one else responsible
for the performance of this Lease, including the sublessee, without first
exhausting Lessor's remedies against any other person or entity responsible
therefor to Lessor, or any security held by Lessor or Lessee.
(g) In the event Lessee shall default in the performance
of its obligations under this Lease, Lessor, at its option and without any
obligation to do so, may require any sublessee to attorn to Lessor, in which
event Lessor shall undertake the obligations of Lessee under such sublease from
the time of the exercise of said option to the termination of such sublease;
provided, however, Lessor shall not be liable for any prepaid rents or security
deposit paid by such sublessee to Lessee or for any other prior defaults of
Lessee under such sublease.
(h) Each and every consent required of Lessee under a
sublease shall also require the consent of Lessor.
(i) No sublessee shall further assign or sublet all or
any part of the Premises without Lessor's prior written consent.
(j) Lessor's written consent to any subletting of the
Premises by Lessee shall not constitute an acknowledgement that no default then
exists under this Lease of the obligations to be performed by Lessee nor shall
such consent be deemed a waiver of any then existing default, except as may be
otherwise stated by Lessor at the time.
(k) With respect to any subletting to which Lessor has
consented, Lessor agrees to deliver a copy of any notice of default by Lessee
to the sublessee. Such sublessee shall have the right to cure a default of
Lessee within ten (10) days after service of said notice of default upon such
sublessee, and the sublessee shall have a right of reimbursement and offset
from and against Lessee for any such defaults cured by the sublessee.
12.5 ATTORNEY'S FEES. In the event Lessee shall assign or sublet
the Premises or request the consent of Lessor to any assignment or subletting
or if Lessee shall request the consent of Lessor for any act Lessee proposes to
do then Lessee shall pay Lessor's reasonable attorneys fees incurred in
connection therewith, such attorneys fees not to exceed $350.00 for each such
request.
13. DEFAULT; REMEDIES.
13.1 DEFAULT. The occurrence of any one or more of the following
events shall constitute a material default of this Lease by Lessee:
(a) The abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or
any other payment required to be made by Lessee hereunder, as and when due,
where such failure shall continue for a period of five (5) business days after
written notice thereof from Lessor to Lessee. In the event that Lessor serves
Lessee with a Notice to Pay Rent or Quit pursuant to applicable Unlawful
Detainer statutes such Notice to Pay Rent or Quit shall also constitute the
notice required by this subparagraph.
(c) Except as otherwise provided in this Lease, the
failure by Lessee to observe or perform any of the covenants, conditions or
provisions of this Lease to be observed or performed by Lessee, other than
described in paragraph (b) above, where such failure shall continue for a
period of thirty (30) days after written notice thereof from Lessor to Lessee:
provided, however, that if the nature of the Lessee's noncompliance is such
that more than thirty (30) days are reasonably required for its cure, then
Lessee shall not be deemed to be in default if Lessee commenced such cure
within said thirty (30) day period and thereafter diligently prosecutes such
cure to completion. To the extent permitted by law, such thirty (30) day notice
shall constitute the sole and exclusive notice required to be given to Lessee
under applicable Unlawful Detainer statutes.
(d) (i) The making by Lessee of any general
arrangement or general assignment for the benefit of creditors; (ii) Lessee
becomes a "debtor" as defined in 11 U.S.C. Section 101 or any successor
statute thereto (unless, in the case of a petition filed against Lessee, the
same is dismissed within sixty (60) days); (iii) the appointment of a trustee
or receiver to take possession of substantially all of Lessee's assets located
at the Premises or of Lessee's interest in this Lease, where possession is not
restored to Lessee within thirty (30) days; or (iv) the attachment, execution
or other judicial seizure of substantially all of Lessee's assets located at
the Premises or of Lessee's interest in this Lease, where such seizure is not
discharged within thirty (30) days. In the event that any provision of this
paragraph 13.1(d) is contrary to any applicable law, such provision shall be of
no force or effect.
(e) The discovery by lessor that any financial statement
given to Lessor by Lessee, any assignee of Lessee, any subtenant of Lessee, any
successor in interest of Lessee or any guarantor of Lessee's obligation
hereunder, was materially false.
13.2 REMEDIES. In the event of any such material default by Lessee,
Lessor may at any time thereafter, with or without notice or demand and without
limiting Lessor in the exercise of any right or remedy which Lessor may have by
reason of such default:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall terminate and
Lessee shall immediately surrender possession of the Premises to Lessor. In
such event Lessor shall be entitled to recover from Lessee all damages incurred
by Lessor by reason of Lessee's default including, but not limited to, the cost
of recovering possession of the Premises: expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorney's
fees, and any real estate commission actually paid: the worth at the time of
award by the court having jurisdiction thereof of the amount by which the
unpaid rent for the balance of the term after the time of such award exceeds
the amount of such rental loss for the same period that Lessee proves could be
reasonably avoided; that portion of the leasing commission paid by Lessor
pursuant to paragraph 15 applicable to the unexpired term of this Lease.
(b) Maintain Lessee's right to possession in which case
this Lease shall continue in effect whether or not Lessee shall have vacated or
abandoned the Premises. In such event Lessor shall be entitled to enforce all
of Lessor's rights and remedies under this Lease, including the right to
recover the rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to
Lessor under the laws or judicial decisions of the state wherein the Premises
are located. Unpaid installments of rent and other unpaid monetary obligations
of Lessee under the terms of this Lease shall bear interest from the date due
at the maximum rate then allowable by law.
13.3 DEFAULT BY LESSOR. Lessor shall not be in default unless
Lessor fails to perform obligations required of Lessor within a reasonable
time, but in no event later than thirty (30) days after written notice by
Lessee to Lessor and to the holder of any first mortgage or deed of trust
covering the Premises whose name and address shall have theretofore been
furnished to Lessee in writing, specifying wherein Lessor has failed to perform
such obligation; provided, however, that if the nature of Lessor's obligation
is such that more than thirty (30) days are required for performance then
Lessor shall not be in default if Lessor commences performance within such
thirty (30) day period and thereafter diligently prosecutes the same to
completion.
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13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee to Lessor of Base Rent, Lessee's Share of Operating Expenses or other
sums due hereunder will cause Lessor to incur costs not contemplated by this
Lease, the exact amount of which will be extremely difficult to ascertain. Such
costs include, but are not limited to, processing and accounting charges, and
late charges which may be imposed on Lessor by the terms of any mortgage or
trust deed covering the Property. Accordingly, if any installment of Base Rent,
Operating Expenses, or any other sum due from Lessee shall not be received by
Lessor or Lessor's designee within ten (10) days after such amount shall be
due, then, without any requirement for notice to Lessee, Lessee shall pay to
lessor a late charge equal to 6% of such overdue amont. The parties hereby
agree that such late charge represents a fair and reasonable estimate of
the costs Lessor will incur by reason of late payment by Lessee. Acceptance of
such late charge by Lessor shall in no event constitute a waiver of Lessee's
default with respect to such overdue amount, nor prevent Lessor from exercising
any of the other rights and remedies granted hereunder.
14. CONDEMNATION. If the Premises or any portion thereof or the Industrial
Center are taken under the power of eminent domain, or sold under the threat of
the exercise of said power (all of which are herein called "condemnation"),
this Lease shall terminate as to the part so taken as of the date the
condemning authority takes title or possession, whichever first occurs. If more
than ten percent of the floor area of the Premises, or more than twenty-five
percent of that portion of the Common Areas designated as parking for the
Industrial Center is taken by condemnation, Lessee may, at Lessee's option, to
be exercised in writing, only within ten (10) days after Lessor shall have
given Lessee written notice of such taking (or in the absence of such notice,
within ten (10) days after the condemning authority shall have taken
possession) terminate this Lease as of the date the condemning authority takes
such possession. If Lessee does not terminate this Lease in accordance with the
foregoing, this Lease shall remain in full force and effect as to the portion
of the premises remaining, except that the rent shall be reduced in the
proportion that the floor area of the Premises taken bears to the total floor
area of the Premises. No reduction of rent shall occur if the only area taken
is that which does not have the Premises located thereon. Any award for the
taking of all or any part of the Premises under the power of eminent domain or
any payment made under threat of the exercise of such power shall be the
property of Lessor, whether such award shall be made as compensation for
diminution in value of the leasehold or for the taking of the fee, or as
severance damages; provided, however, that Lessee shall be entitled to any
award for loss of or damage to Lessee's trade fixtures and removable personal
property. In the event that this Lease is not terminated by reason of such
condemnation, Lessor shall to the extent of severance damages received by
Lessor in connection with such condemnation, repair any damage to the Premises
caused by such condemnation except to the extent that Lessee has been
reimbursed therefor by the condemning authority. Lessee shall pay any amount in
excess of such severance damages required to complete such repair.
15. BROKER'S FEE.
(a) Upon execution of this Lease by both parties. Lessor shall pay
to Xxxxxxxxx Xxxx Company Licensed real estate broker(s), a fee set forth in a
separate agreement between Lessor and said broker(s), for brokerage services
rendered by said broker(s) to Lessor in this transaction.
(c) Lessor agrees to pay said fee not only on behalf of Lessor but
also on behalf of any person, corporation, association, or other entity having
ownership interest in said real property or any part thereof, when such fee is
due hereunder. Any transferee of Lessor's interests in this Lease, whether such
transfer is by agreement or by operation of law, shall be deemed to have
assumed Lessor's obligation under this paragraph 15. Said broker shall be a
third party beneficiary of the provisions of this paragraph 15.
16. ESTOPPEL CERTIFICATE.
(a) Each party (as "responding party") shall at any time upon not
less than ten (10) days' prior written notice from the other party ("requesting
party") execute, acknowledge and deliver to the requesting party a statement in
writing (i) certifying that this Lease is unmodified in full force and
effect (or,if modified, stating the nature of such modification and certifying
that this Lease, as so modified, is in full force and effect) and the date to
which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to the responding party's knowledge, any
uncured defaults on the part of the requesting party, or specifying such
defaults if any are claimed. Any such statement may be conclusively relied upon
by any prospective purchaser or encumbrancer of the Premises or of the business
of the requesting party.
(b) At the requesting party's option, the failure to deliver such
statement within such time shall be a material default of this Lease by the
party who is to respond, without any further notice to such party, or it shall
be conclusive upon such party that (i) this Lease is in full force and effect,
without modification except as may be represented by the requesting party, (ii)
there are no uncured defaults in the requesting party's performance, and (iii)
if Lessor is the requesting party, not more than one month's rent has been paid
in advance.
(c) If Lessor desires to finance, refinance, or sell the Property,
or any part thereof, Lessee hereby agrees to deliver to any lender or purchaser
designated by Lessor such financial statements of Lessee as may be reasonably
required by such lender or purchaser. Such statements shall include the past
three (3) years' financial statements of Lessee. All such financial statements
shall be received by Lessor and such lender or purchaser in confidence and
shall be used only for the purposes herein set forth.
17. LESSOR'S LIABILITY. The term "Lessor" as used herein shall mean only
the owner or owners, at the time in question, of the fee title or a lessee's
interest in a ground lease of the Industrial Center, and except as expressly
provided in paragraph 15, in the event of any transfer of such title or
interest. Lessor herein named (and in case of any subsequent transfers then the
grantor) shall be relieved from and after the date of such transfer of all
liability as respects Lessor's obligations thereafter to be performed, provided
that any funds in the hands of Lessor or the then grantor at the time of such
transfer, in which Lessee has an interest, shall be delivered to the grantee.
The obligations contained in this Lease to be performed by Lessor shall,
subject as aforesaid, be binding on Lessor's successors and assigns, only
during their respective periods of ownership.
18. SEVERABILITY. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
19. INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein provided,
any amount due to Lessor not paid when due shall bear interest at 4 1/2
percentage points over the prime rate then publicly announced as such by
Norwest Bank, N.A. Payment of such interest shall not excuse or cure any
default by Lessee under this Lease; provided, however, that interest shall not
be payable on late charges incurred by Lessee nor on any amounts upon which
late charges are paid by Lessee.
20. TIME OF ESSENCE. Time is of the essence with respect to the
obligations to be performed under this Lease.
21. ADDITIONAL RENT. All monetary obligations of Lessee to Lessor under
the terms of this Lease, including but not limited to Lessee's Share of
Operating Expenses and insurance and tax expenses payable shall be deemed to be
rent.
22. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all
to agreements of the parties with respect any matter mentioned herein. No prior
or contemporaneous agreement or understanding pertaining to any such matter
shall be effective. this lease may be modified in writing only signed by the
parties in interest at the time of the modification. Except as otherwise stated
in this lease, Lessee hereby acknowledges that neither the real estate broker
listed in paragraph 15 hereof nor any cooperating broker on this transaction
nor the lessor or any employee or agents of any said persons has made any oral
or written warranties or representations to Lessee relative to the condition or
use by Lessee of the Premises or the Property and Lessee acknowledges that
lessee assumes all responsibility regarding the Occupational Safety Health Act,
the legal use and adaptability of the Premises and the compliance thereof with
all applicable laws and regulations in effect during the term of this lease
except as otherwise specifically stated in this Lease.
23. NOTICES. Any notice required or permitted to be given hereunder shall
be in writing and may be given by personal delivery or by certified mail, and
if given personally or by mail, shall be deemed sufficiently given when
personally delivered or when deposited in the U.S. mail, postage prepaid,
certified, addressed to Lessee or to Lessor at the address noted below the
signature of the respective parties, as the case may be. Either party may by
notice to the other specify a different address for notice purposes except that
upon Lessee's taking possession of the Premises, the Premises, shall constitute
Lessee's address for notice purposes. A copy of all notices required or
permitted to be given to Lessor hereunder shall be concurrently transmitted to
such party or parties at such addresses as Lessor may from time to time
hereafter designate by notice to Lessee.
24. WAIVERS. No waive by Lessor or any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Lessee of
the same or any other provision. Lessor's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of Lessor's consent to,
or approval of, any act shall not be deemed to render unnecessary the
obtaining of Lessor's consent to or approval of any subsequent act by Lessee.
the acceptance of rent hereunder by Lessor shall not be a waiver of any
preceding breach by Lessee of any provision hereof other than the failure of
Lessee to pay the particular rent so accepted, regardless of Lessor's knowledge
of such preceding breach at the time of acceptance of such rent.
25. RECORDING. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a "short form" memorandum of this
Lease for recording purposes.
26. HOLDING OVER. If Lessee, with Lessor's consent, remains in possession
of the Premises or any part thereof after the expiration of the term hereof,
such occupancy shall be a tenancy from month to month upon all the provisions
of this Lease pertaining to the obligations of Lessee, but all Options, if any,
granted under the terms of this Lease shall be deemed terminated and be of no
further effect during said month to month tenancy.
* except that the rent payable shall be one hundred fifty percent (150%) of
the rent payable immediately preceding the termination date of this Lease.
MULTI TENANT-MODIFIED NET Initials /s/
(C) American Industrial Real Estate Association 1981 ---
Initials /s/
---
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7
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies
at law or in equity.
28. COVENANTS AND CONDITIONS. Each provision of this Lease performable by
Lessee shall be deemed both a covenant and a condition.
29. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof restricting
assignment or subletting by Lessee and subject to the provisions of paragraph
17, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State
where the Industrial Center is located and any litigation concerning this Lease
between the parties hereto shall be initiated in the county in which the
Industrial Center is located.
30. SUBORDINATION.
(a) This Lease, and any Option granted hereby, at Lessor's option, shall
be subordinate to any ground lease, mortgage, deed of trust, or any other
hypothecation or security now or hereafter placed upon the Industrial Center
and to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgagee, trustee or ground lessor shall elect to have this Lease and any
Options granted hereby prior to the lien of its mortgage, deed of trust or
ground lease, and shall give written notice thereof to Lessee, this Lease and
such Options shall be deemed prior to such mortgage, deed of trust or ground
lease, whether this Lease or such Options are dated prior or subsequent to the
date of said mortgage, deed of trust or ground lease or the date of recording
thereof.
(b) Lessee agrees to execute any documents required to effectuate an
attornment, a subordination or to make this Lease or any Option granted herein
prior to the lien of any mortgage, deed of trust or ground lease, as the case
may be. Lessee's failure to execute such documents within ten (10) days after
written demand shall constitute a material default by Lessee hereunder without
further notice to Lessee or, at Lessor's option, Lessor shall execute such
documents on behalf of Lessee as Lessee's attorney-in-fact. Lessee does hereby
make, constitute and irrevocably appoint Lessor as Lessee's attorney-in-fact
and in Lessee's name, place and stead, to execute such documents in accordance
with this paragraph 30(b).
31. ATTORNEY'S FEES. If either party or the broker(s) named herein bring an
action to enforce the terms hereof or declare rights hereunder, the prevailing
party in any such action, on trial or appeal, shall be entitled to his
reasonable attorney's fees to be paid by the losing party as fixed by the
court. The provisions of this paragraph shall inure to the benefit of the
broker named herein who seeks to enforce a right hereunder.
32. LESSOR'S ACCESS. Lessor and Lessor's agents shall have the right to enter
the Premises at reasonable times for the purpose of inspecting the same,
showing the same to prospective purchasers, lenders, or lessees, and making
such alterations, repairs, improvements or additions to the Premises or to the
building of which they are part as Lessor may deem necessary or desirable.
Lessor may at any time place on or about the premises or the Building any
ordinary "For Sale" signs and Lessor may at any time during the last 120 days
of the term hereof place on or about the Premises any ordinary "For Lease"
signs. All activities of Lessor pursuant to this paragraph shall be without
abatement or rent, nor shall Lessor have any liability to Lessee for the same.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises or the Common Areas
without first having obtained Lessor's prior written consent. Notwithstanding
anything to the contrary in this Lease, Lessor shall not be obligated to
exercise any standard of reasonableness in determining whether to grant such
consent.
34. SIGNS. Lessee shall not place any sign upon the Premises or the Industrial
Center without Lessor's prior written consent. Under no circumstances shall
Lessee place a sign on any roof of the Industrial Center.
35. MERGER. The voluntary or other surrender of this Lease by Lessee, or a
mutual cancellation thereof, or a termination by Lessor, shall not work a
merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to
Lessor of any or all of such subtenancies.
36. CONSENTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN TO THE CONTRARY, WHEREVER IN
THIS LEASE THE CONSENT OF ONE PARTY IS REQUIRED TO AN ACT OF THE OTHER PARTY,
SUCH CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED.
37. GUARANTOR. In the event that there is a guarantor of this Lease, said
guarantor shall have the same obligations as Lessee under this Lease.
38. QUIET POSSESSION. Upon Lessee paying the rent for the Premises and
observing and performing all of the covenants, conditions and provisions on
Lessee's part to be observed and performed hereunder, Lessee shall have quiet
possession of the Premises for the entire term hereof subject to all of the
provisions of this Lease. The individuals executing this Lease on behalf of
Lessor represent and warrant to Lessee that they are fully authorized and
legally capable of executing this Lease on behalf of Lessor and that such
execution is binding upon all parties holding an ownership interest in the
Property.
39. OPTIONS. SEE PARAGRAPH 10 OF THE ADDENDUM
39.1 DEFINITION. As used in this paragraph the word "Option" has the
following meaning: (1) the right or option to extend the term of this Lease or
to renew this Lease or to extend or renew any lease that Lessee has on other
property of Lessor: (2) the option or right of first refusal to lease the
Premises or the right of first offer to lease the Premises or the right of
first refusal to lease other space within the Industrial Center or other
property of Lessor or the right of first offer to lease other space within the
Industrial Center or other property of Lessor: (3) the right or option to
purchase the Premises or the Industrial Center, or the right of first refusal
to purchase the Premises or the Industrial Center, or the right of first offer
to purchase the Premises or the Industrial Center, or the right or option to
purchase other property of Lessor, or the right of first refusal to purchase
other property of Lessor or the right of first offer to purchase other property
of Lessor.
39.2 OPTIONS PERSONAL. Each Option granted to Lessee in this Lease is
personal to the original Lessee and may be exercised only by the original
Lessee while occupying the Premises who does so without the intent of
thereafter assigning this Lease or subletting the Premises or any portion
thereof, and may not be exercised or be assigned, voluntarily or involuntarily,
by or to any person or entity other than Lessee, provided, however that an
Option may be exercised by or assigned to any Lessee Affiliate as defined in
paragraph 12.2 of this Lease. The Options, if any, herein granted to Lessee are
not assignable separate and apart from this Lease, nor may any Option be
separated from this Lease in any manner, either by reservation or otherwise.
39.3. MULTIPLE OPTIONS. In the event that Lessee has any multiple options
to extend or renew this Lease a later option cannot be exercised unless the
prior option to extend or renew this Lease has been so exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option, notwithstanding any
provision in the grant of Option to the contrary, (i) during the time
commencing from the date Lessor gives to Lessee a notice of default pursuant to
paragraph 13.1(b) or 13.1(c) and continuing until the noncompliance alleged in
said notice of default is cured, or (ii) during the period of time commencing
on the date after a monetary obligation to Lessor is due from Lessee and unpaid
(without any necessity for notice thereof to Lessee) and continuing until the
obligation is paid, or (iii) at any time after an event of default described in
paragraphs 13.1(a), 13.1(d), or 13.1(e) (without any necessity of Lessor to
give notice of such default to Lessee), nor (iv) in the event that Lessor has
given to Lessee three or more notices of default under paragraph 13.1(b) or
paragraph 13.1(c), whether or not the defaults are cured, during the 12 month
period of time immediately prior to the time that Lessee attempts to exercise
the subject Option.
(b) The period of time within which an Option may be exercised shall not be
extended or enlarged by reason of Lessee's inability to exercise an Option
because of the provisions of paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option shall terminate
and be of no further force or effect, notwithstanding Lessee's due and timely
exercise of the Option, if, after such exercise and during the term of this
Lease, (i) Lessee fails to pay to Lessor a monetary obligation of Lessee for a
period of thirty (30) days after such obligation becomes due (without any
necessity of Lessor to give notice thereof to Lessee), or (ii) Lessee fails to
commence to cure a default specified in paragraph 13.1(c) within thirty (30)
days after the date that Lessor gives notice to Lessee of such default and/or
Lessee fails thereafter to diligently prosecute said cure to completion, or
(iii) Lessee commits a default described in paragraph 13.1(a), 13.1(d) or
13.1(e) (without any necessity of Lessor to give notice of such default to
Lessee), or (iv) Lessor gives to Lessee three or more notices of default under
paragraph 13.1(b) or paragraph 13.1(c), whether or not the defaults are cured.
40. SECURITY MEASURES. Lessee hereby acknowledges that Lessor shall have no
obligation whatsoever to provide guard service or other security measures for
the benefit of the Premises or the Industrial Center. Lessee assumes all
responsibility for the protection of Lessee, its agents, and invitees and the
property of Lessee and of Lessee's agents and invitees from acts of third
parties. Nothing herein contained shall prevent Lessor, at Lessor's sole
option, from providing security protection for the Industrial Center or any
part thereof, in which event the cost thereof shall be included within the
definition of Operating Expense, as set forth in paragraph 4.2(b).
41. EASEMENTS. Lessor reserves to itself the right, from time to time, to grant
such easements, rights and dedications that Lessor deems necessary or
desirable, and to cause the recordation of Parcel Maps and restrictions, so
long as such easements, rights, dedications, Maps and restrictions do not
unreasonably interfere with the use of the Premises by Lessee. Lessee shall
sign any of the aforementioned documents upon request of Lessor and failure to
do so shall constitute a material default of this Lease by Lessee without the
need for further notice to Lessee.
42. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise as to any
amount or sum of money to be paid by one party to the other under the provision
hereof, the party against whom the obligation to pay the money is asserted
shall have the right to make payment "under protest" and such payment shall not
be regarded as a voluntary payment, and there shall survive the right on the
part of said party to institute suit for recovery of such sum. If it shall be
adjudged that there was no legal obligation on the part of said party to pay
such sum or any part thereof, said party shall be entitled to recover such sum
or so much thereof as it was not legally required to pay under the provisions
of this Lease.
MULTI TENANT -- MODIFIED NET Initials: /s/
American Industrial Real Estate Association 1981 ---
/s/
---
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8
43. AUTHORITY. If Lessee is a corporation, trust or general or limited
partnership, each individual executing this Lease on behalf of such entity
represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of said entity. If Lessee is a corporation trust
or partnership, Lessee shall, within thirty (30) days after execution of this
Lease, deliver to Lessor evidence of such authority satisfactory to Lessor.
44. CONFLICT. Any conflict between the printed provisions of this Lease and the
typewritten or handwritten provisions, if any, shall be controlled by the
typewritten or handwritten provisions.
45. OFFER. Preparation of this Lease by Lessor or Lessor's agent and submission
of same to Lessee shall not be deemed an offer to lease. This Lease shall
become binding upon Lessor and Lessee only when fully executed by Lessor and
Lessee.
SEE ADDENDUM ATTACHED HERETO AND MADE A PART HEREOF.
Attached hereto and by this reference made a part of this Lease are the
following:
Exhibit "A" - Site Plan
Exhibit "B" - Work Letter
Exhibit "C" - Rules and Regulations
Exhibit "D" - Letter of Credit
Exhibit "E" - Sign Code
Exhibit "F" - Expansion Option I Space
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED
AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS
LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND
EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
THIS LEASE HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY FOR APPROVAL.
NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL
ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKER OR ITS AGENTS OR EMPLOYEES
AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS
LEASE OR THE TRANSACTION RELATING THERETO: THE PARTIES SHALL RELY SOLELY
UPON THE ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL AND TAX
CONSEQUENCES OF THIS LEASE.
LESSOR LESSEE
PACIFICA 67 INVERNESS LLC, T-NETIX, INC.,
a Colorado limited liability company a Colorado corporation
------------------------------------ -----------------------------------
By /s/ [ILLEGIBLE] By /s/ [ILLEGIBLE]
---------------------------------- ---------------------------------
By By EVP and CFO
---------------------------------- ---------------------------------
Executed on 4-18-96 Executed on April 15, 1996
------------------------ -----------------------
(Corporate Seal) (Corporate Seal)
ADDRESS FOR NOTICES AND RENT ADDRESS
c/o Pacifica Holding Company
------------------------------------ -----------------------------------
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
------------------------------------ -----------------------------------
Xxxxxxxxx, XX 00000
------------------------------------ -----------------------------------
NOTE: These forms are often modified to meet changing requirements of law and
needs of the industry. Always write or call to make sure you are
utilizing the most current form. AMERICAN INDUSTRIAL REAL ESTATE
ASSOCIATION, 000 Xx. Xxxxxxxx Xx., X-0, Xxx Xxxxxxx, XX 00000.
(000) 000-0000.
9
ADDENDUM
THIS ADDENDUM ("Addendum") to that certain Industrial Lease
("Lease") by and between PACIFICA 67 INVERNESS, LLC, a Colorado limited
liability company ("Lessor") and T-NETIX, INC., a Colorado corporation
("Lessee"), entered into this 15th day of April, 1996. In the event of a
conflict between the terms and provisions of this Addendum and the Lease, the
terms and provisions of this Addendum shall govern.
1. PARKING. Paragraph 2.2 of the printed portion of the Lease
is hereby amended to provide that Lessor reserves the right to designate
certain portions of the Common Areas for employee parking or, at its election,
to require Lessee and its employees to enter license agreements to park in
certain designated spaces. Lessor reserves the right to increase or reduce the
Common Areas, including parking, to change the nature or purpose thereof, to
rearrange the parking spaces and/or the improvements situated in Common Areas
and may limit certain spaces for certain users, for example, visitors or the
disabled; provided that the one hundred (100) vehicle parking spaces described
in Paragraph 2.2 of the printed portion of the Lease, shall be available to
Lessee, its employees, visitors and invitees. Notwithstanding the foregoing,
Landlord agrees to place signage on the 18-20 parking spaces in the first row
of parking nearest the entrance to the Premises marked as reserved parking for
T-Netix; provided, however, Lessor shall have no obligation to patrol such
spaces to assure that they are being used by Lessee's employees, agents, or
invitees.
2. LEASE COMMENCEMENT DATE
A. Paragraph 3.2 of the printed portion of the Lease
shall be amended to provide that Lessor shall deliver possession of the
Premises to Lessee when Lessor shall have substantially completed Lessor's Work
to the extent agreed to in the Work Letter, Exhibit B hereto. On said date, the
Primary Lease Term shall commence; provided, however, if the commencement date
would occur on other than the first day of the month, the commencement date of
the Primary Lease Term shall be further delayed until the first day of the
following month and Tenant shall pay proportionate rent at the same monthly
rate set forth herein, in advance, for such partial month. In the event said
commencement date is so delayed, the expiration of the term hereof shall be
extended so that the Primary Lease Term will continue for the full period set
forth in Section 3.1 of the printed portion of the Lease. As soon as
practicable after the Primary Lease Term commences, Lessor and Lessee shall
execute an addendum to this Lease, if requested by either party, setting forth
the exact date on which the Primary Lease Term commenced and the expiration
date of the Primary Lease Term.
B. If the Lease commencement date is delayed beyond
November 1, 1996, and such delay is not due to Lessee's failure to comply with
Lessee's obligations hereunder or due to delays resulting from acts of God,
strikes, walkouts, fire accident, riot, civil commotion ("force majeure
events") or to Lessee's Delay, as defined in the Work Letter, Lessor agrees to
reimburse Lessee the following: (i) for the month of November, 1996, the
difference between the base rent Lessee actually pays its current landlord for
the space it currently occupies prior to November 1, 1996, and the holdover
rent Lessee actually pays its current landlord during its holdover period after
November 1, 1996 (excluding all operating expense increases); (ii) for the
month of December, 1996, five hundred dollars ($500.00) per day for each day of
December, 1996 that the Premises are not substantially complete (in no event
will the amount exceed fifteen thousand five hundred dollars ($15,500.00);
provided, however, if Lessee is required to pay its current landlord a full
month's rent, notwithstanding that the Premises are substantially complete
during the month of December, 1996, Lessor agrees to pay Lessee a total of
fifteen thousand five hundred dollars ($15,500.00); (iii) for any period
commencing January 1, 1997 and continuing until the Premises are substantially
complete, Lessee's actual losses attributable to the delay that result
therefrom. Lessee shall provide Lessor with a copy of Lessee's cancelled rent
check and the invoice Lessee received for such rent and substantiation for such
losses as Lessee claims are attributable to delay in possession of the
Premises. Lessor shall reimburse Lessee within thirty (30) days of receipt of
such substantiation as Lessor may reasonably require for such amounts. If the
Lease commencement date is delayed beyond November 1, 1996 and such delay is
due to Lessee's failure to comply with Lessee's obligations hereunder, force
majeure events or Lessee's delay, Lessor's obligations to deliver the Premises
to the Lessee shall be extended on a day-to-day basis, and Lessor's obligation
to pay the amounts described in (i) (ii) and (iii) above shall not commence
until the expiration of such day-to-day extension. Lessee's right to payment
as provided in this Paragraph shall be in full settlement of all claims which
Lessee might otherwise have by reason of the delay of the Lease commencement
date. Lessor agrees to notify Lessee of events beyond Lessor's reasonable
control as soon as practicable after Lessor learns of such matters that will
cause a delay in the Lease commencement date beyond November 1, 1996, and
Lessor agrees to use reasonable efforts to limit such delay.
C. To expedite the Lease commencement date, Lessor
agrees to notify Lessee of the date that Lessee may enter the Premises to
install and wire for Lessee's data processing and communications system, which
the parties acknowledge will be about two weeks prior to substantial completion
of Lessor's Work as defined in the Work Letter attached hereto. Prior to
entering the Premises, Lessee shall first obtain Lessor's written approval of
Lessee's wiring plan, Lessee shall deposit with Lessor certificates of
insurance as required by the Lease and Lessee shall comply with other
reasonable requirements of Lessor relating to performance of such installation.
Lessee's work shall be at Lessee's sole cost and expense. Lessee shall
coordinate completion of its work with completion of Lessor's Work and any
interference by Lessee, its contractors, subcontractors, agents or employees
with Lessor's Work shall be deemed Lessee Delay as defined in the Work Letter.
10
3. RENT ESCALATIONS.
A. On the first day of the 37th month of the Lease Term
(and on the first day of respective Option Term and on the first day of the
37th month of each Option Term, as described in Paragraph 10 below) the monthly
Base Rent payable under Paragraph 4.1 of the printed portion of the Lease for
all space then under the Lease shall be adjusted by the increase, if any, from
the date this Lease commenced, in the Consumer Price Index of the Bureau of
Labor Statistics of the U.S. Department of labor for Urban Wage Earners and
Clerical Workers, Denver-Boulder, Colorado (1982-84=100), "All Items", herein
referred to as the "C.P.I."
B. The revised monthly Base Rent shall be calculated as
follows: (i) as to the originally demised portion of the Premises, the Base
Rent payable for the first month of the term of this Lease, as set forth in
Paragraph 4.1 of the printed portion of the Lease; (ii) as to each Option Term,
the monthly Base Rent for the first month (or 37th month, as the case may be)
of each Option Term; and (iii) as to the RFO, Expansion I or II Space, the
market rate Base Rent payable the first month such space becomes part of the
Premises, shall be multiplied by a fraction the numerator of which shall be the
C.P.I. of the calendar month during which the adjustment is to take effect, and
the denominator of which shall be the C.P.I. (a) as to (i) above for the
calendar month in which the original Lease term commenced; (b) as to (ii)
above, each Option Term, for the calendar month the Option Term commenced (or
the first month the Base Rent was previously adjusted, as the case may be); or
(c) as to (iii) above, the RFO, Expansion I or II Space, the market rate Base
Rent payable the first month such space becomes part of the Premises. The sum
so calculated shall constitute the new monthly Base Rent hereunder, but in no
event shall such new monthly Base Rent be less than the Base Rent payable for
the month immediately preceding the date for rent adjustment. The Base Rent to
be recalculated on the adjustment date which is on the first day of the
thirty-seventh (37th) month of the Primary Lease Term and on the first (lst)
day of the First Option Term shall not be increased by less than two and
one-half percent (2 1/2%) nor more than three and one-half percent (3 1/2%)
compounded annually for each Lease Year that had elapsed from the commencement
date of the Primary Lease Term or previous adjustment date (or as to the first
adjustment for the RFO, Expansion I or II Space, the Base Rent when such space
becomes part of the Premises.) The Base Rent to be recalculated for the first
day of the thirty-seventh month of the First Option Term and during the Second
Option Term shall not be increased by less than two and one-half percent
(2 1/2%) nor more than four and one-half percent (4 1/2%) compounded annually
for each Lease Year that had elapsed from the previous adjustment date.
C. Pending receipt of the required C.P.I. and
determination of the actual adjustment, Lessee shall pay an estimated adjusted
rental, as reasonably determined by Lessor by reference to the then available
C.P.I. information. Upon notification of the actual adjustment after
publication of the required C.P.I., any overpayment shall be credited against
the next installment of Base Rent due, and any underpayment shall be
immediately due and payable by Lessee. Lessor's failure to request payment of
an estimated or actual rent adjustment shall not constitute a waiver of the
right to any adjustment provided for in the Lease or this Addendum.
D. In the event the compilation and/or publication of
the C.P.I. shall not be published in the calendar months referred to in
subparagraph B above, the C.P.I. published for the calendar month most closely
preceding or following the adjustment month shall be used. (For example, if the
adjustment month was June of a calendar year and the C.P.I. was published in
January or in September of such year, the September C.P.I. for the applicable
year would be used for both the numerator and denominator of the calculation.)
In the event the compilation and/or publication of the C.P.I. shall be
transferred to any governmental department or bureau or agency or shall be
discontinued, the index most nearly the same as the C.P.I. shall be used to
make such calculation. In the event that Lessor and Lessee cannot agree on such
alternative index, then the matter shall be submitted for decision to the
American Arbitration Association in accordance with the then rules of said
association and the decision of the arbitrators shall be binding upon the
parties. The cost of said Arbitrators shall be paid equally by Lessor and
Lessee.
4. OPERATING EXPENSES.
A. Paragraph 4.2(b)(ff) of the printed portion of the
Lease, professional management fees, shall be amended to provide that in the
event Pacifica Holding Company is managing the Property for the Lessor, Lessor
agrees to limit the amount of management fees charged to Lessee (without
limitation to the amount Lessor actually pays) the following amounts during the
following time periods: (i) Lease Year One - $.25 per square foot of the
Premises; (ii) Lease Year Two - $.30 per square foot of the Premises; (iii)
Lease Year Three - $.35 per square foot of the Premises; (iv) Lease Years Four
through Five - the lower of market rate (as defined below) or 3 1/2% of the
gross rent payable excluding Operating Expenses; (v) First Option Term - the
lower of market rate (as defined below) or 4% of the gross rent payable
excluding Operating Expenses; and (vi) Second Option Term - the lower of market
rate (as defined below) or 5% of the gross rent payable excluding Operating
Expenses. The term "market rate" as used in this Paragraph shall mean the rate
charged by a qualified Denver-based management company providing comparable
services for comparable properties based on a comparison of three bids, the
bidders to be selected in Lessor's sole discretion. If Pacifica Holding Company
does not perform management services, the limit on the amount of management
fees chargeable to Lessee shall be the lower of market rate (defined above) or
3 1/2% of the gross rent payable excluding Operating Expenses for the Primary
Lease Term, and the same rates as described in (v) and (vi) above for the First
and Second Option Terms.
B. The following shall be added to the end of
subparagraph 4.2(d) of the printed portion of the Lease: "If Lessee shall
dispute the amount of an adjustment submitted by Lessor or as provided in
subparagraph 4.2 above, Lessee, shall give Lessor written notice of such
dispute within thirty (30) days after
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Lessor submits to Lessee the statement referred to in said Paragraph 4.2(d). If
Lessee does not give Lessor such notice within such time, Lessee shall have
waived its right to dispute the amount so determined. If Lessee timely objects,
Lessee shall have the right to engage its own certified public accountants for
the purpose of verifying the accuracy of the statement objected to at Tenant's
sole cost and expense. If Lessee's accountants determine that an error has been
made, Lessor and Lessee's accountants shall endeavor to agree upon the matter,
failing which the parties shall settle the dispute by judicial action, or in
such other manner as they agree. Notwithstanding the pendency of any dispute
over any particular statement, Lessee shall continue to pay Lessor the amount
of the adjusted monthly installments of rent determined by Lessor until the
adjustment has been determined to be incorrect. All costs incurred by Lessee in
obtaining its own accountants shall be paid for by Lessee unless Lessee's
accountants disclose an error acknowledged by Lessor, or found to have occurred
in a judicial action of more than five percent (5%) in the computation of the
total amount of Operating Expenses as set forth in the statement submitted by
Lessor which is challenged, in which event, Lessor shall pay the reasonable
costs incurred by Lessee in obtaining such audit (which costs shall exclude any
contingency fees).
5. SECURITY DEPOSIT. Notwithstanding anything contained in
Paragraph 5 of the printed portion of the Lease to the contrary, on the date of
delivery of the Lessee executed Lease to Lessor, Lessee shall provide to Lessor
a clean unconditional irrevocable letter of credit from a lending institution
reasonably acceptable to Lessor (the "Letter of Credit") in lieu of the
security deposit described in Paragraph 5. The Letter of Credit shall be in the
amount of $225,000.00. The Letter of Credit shall be in the form attached
hereto as Exhibit D and made a part hereof. It is further understood and agreed
that no later than thirty (30) days prior to the expiration date of the initial
Letter of Credit, Lessee shall present Lessor with an extension or renewal of
the initial Letter of Credit or a substitute Letter of Credit in the same
format as Exhibit D and from a lending institution reasonably acceptable to
Lessor that shall be effective no later than upon the expiration of the initial
Letter of Credit and continue in effect for at least a one-year period.
Likewise, throughout the primary Lease term as it may be extended, no later
than thirty (30) days prior to the expiration of the renewed or extended Letter
of Credit or substitute therefor, Lessee shall present Lessor with an
additional extension or renewal of the initial or substituted Letter of Credit.
Any failure of Lessee to provide Lessor with the extensions or renewals or
substitute Letters of Credit as required hereunder shall be deemed a default by
Lessee under the Lease and, without the necessity of further notice, Lessor
shall have the right to present any of the Letters of Credit then in its
possession for payment, with the amounts received thereunder to be held as
security for the outstanding rent or other sums due and owing under the Lease.
Notwithstanding the foregoing, beginning with the second anniversary of the
date the Lease term commenced and continuing on each anniversary date of the
Lease, Lessee shall be entitled to reduce the amount of the Letter of Credit by
1/5, and at such time as the balance is zero, thereafter no further security
deposit shall be required of Lessee. Additionally, Lessee shall not be required
to add to the security deposit if it adds the RFO, Expansion I or II Space.
Lessor agrees that Lessor will not draw on the Letter of Credit until any
applicable cure period expressly provided in Paragraph 13.1(c) of the printed
portion of the Lease has passed.
6. EXCLUSIVE USE. During the Lease term, Lessor will not lease
space in the Industrial Complex to another entity whose business includes the
provision of telephone call control systems services to correctional
institutions. Lessor's agreement and Lessee's exclusive use granted herein
shall be in effect so long as (i) Lessee is occupying and doing business from
the Premises in accordance with the requirements of the Lease; (ii) Lessee is
not in default under the Lease; and (iii) the Lease is in full force and
effect. In the event a claim or action is brought against Lessor arising out of
Lessor's grant or enforcement (or attempted enforcement) of the exclusive use
set forth in this Paragraph, Lessor shall notify Lessee in writing of such
claim or action. Other than in the instance that Lessor has leased space to an
entity known by Lessor as a competitor to Lessor, such as MCI Corp., within
five (5) days of Lessor's notice, Lessee shall submit to Lessor a written
acknowledgment that (a) Lessee agrees to terminate the exclusive right granted
herein by deleting reference to the same in this Paragraph or (b) Lessee will
not relinquish its exclusive use. In the event Lessee elects not to relinquish
its exclusive use, Lessee shall indemnify and hold Lessor harmless for all
costs and expense Lessor incurs in attempting to enforce the exclusive right
described herein and Lessee shall waive its rights against Lessor for breach of
exclusive rights set forth in this Paragraph if it is determined that the
exclusive use right is an unlawful restraint of trade and commerce, price
discrimination, price fixing or monopoly. Lessor's breach of this provision
shall be deemed a breach of the terms hereof entitling the Lessee to exercise
available legal remedies. Lessor shall not be in breach of this provision if
Lessor continues good faith efforts to enforce this provision.
7. GENERATOR. The parties acknowledge that part of Lessor's Work
is the purchase and installation of a generator for Lessee's sole use. The
generator shall be located on Common Area of the Industrial Complex and shall
be owned by Lessor. Notwithstanding the foregoing, at least sixty (60) days
prior to the expiration of the Lease term, Lessee shall give Lessor written
notice if Lessee wishes to purchase the generator. Provided that Lessee gives
such written notice and is not in default under the Lease, Lessee shall be
entitled to purchase the generator by paying Lessor 2/7 of the actual cost to
Lessor for the purchase and installation of the generator. Such amount shall be
payable to Lessor in cash or certified funds prior to the expiration of the
Lease term. Upon such payment, Lessee shall be entitled to remove the generator
at Lessee's sole cost and expense and shall repair the Common Area to its
condition prior to installation of the generator. Lessor, at its election, may
remove the generator for the Lessee, repair the Common Area and charge Lessee
the actual cost thereof. In the event Lessee extends the term of the Lease
pursuant to an Option to extend, Lessee shall be entitled to remove the
generator, at Lessee's sole cost and expense, and shall repair the Common Area
to its condition prior to the installation of the generator at the expiration
of such Option Term without payment to the Lessor for such generator; provided,
that Lessee shall give Lessor written notice of its intention to remove the
generator not less than sixty (60) days prior to the expiration of such Option
term.
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8. INSURANCE. During the Lease term and any extension thereof,
Lessee shall keep its furniture, fixtures, merchandise, equipment and all items
Lessee is obligated to maintain and repair under the Lease insured against loss
or damage by fire with the all-risk endorsements. Notwithstanding the
foregoing, Lessor's property insurance described in Paragraph 8.3 of the
printed portion of the Lease shall insure Lessor's Work notwithstanding that
Lessee is obligated to maintain and repair such items after the commencement of
the Primary Lease Term. It is understood and agreed that Lessee assumes all
risk of damage to its own property arising from any cause whatsoever,
including, without limitation, loss by theft or otherwise. Lessee shall during
the Lease term and any extension thereof, keep in full force and effect
workers' compensation insurance insuring against and satisfying Lessee's
obligations and liabilities under the workers' compensation laws of the State
of Colorado.
9. INDEMNITY. Lessor shall indemnify and hold harmless Lessee,
its agents, employees and affiliates from and against claims of third parties
arising out of injuries to the person or property of such third parties arising
in or upon the Common Areas of the Industrial Center caused by the wilful
misconduct of Lessor, its agents or employees, including all costs, attorneys'
fees, judgments, claims, liens, penalties, consultants' fees, expenses and
liabilities incurred in defense of any such claim, action or proceeding brought
thereon.
10. OPTION TO EXTEND. As additional consideration for the
covenants of Lessee hereunder, Lessor hereby grants unto Lessee an option (the
"Option") to extend the term of this Lease for two (2) additional consecutive
terms of five (5) years each (the "First Option Term" or "Second Option Term"
or together, the "Option Terms"). The Option shall apply to all space then
under the Lease at the time the respective Option Term would commence and shall
be on the following terms and conditions:
A. Written notice of Lessee's interest in exercising the
Option shall be given to Lessor not earlier than nine (9) months and not later
than six (6) months prior to the expiration of the primary lease term or first
Option Term, as the case may be ("Lessee's Notice"). If Lessee gives such
notice and provided the other conditions to the extension have been satisfied,
the term of the Lease shall be automatically extended for the respective Option
Term without requiring further action of the parties. However, at the request
of either party, the parties shall execute an amendment to the Lease to confirm
the terms of the extension.
B. Unless Lessor is timely notified by Lessee in
accordance with subparagraph A above, the Option shall terminate and the Lease
shall expire in accordance with its terms, at the end of the primary Lease term
or the then current Option Term, as the case may be.
C. Lessee's option to extend shall continue only if as
of the date of Lessee's Notice or as of the date of commencement of the
respective Option Term, Lessee (i) shall not be in default under the Lease at
the time of exercise of the Option or at the time of the commencement of the
respective Option Term; (ii) shall not have sublet more than the square footage
then equal to (a) 5,000 square feet of the originally demised Premises plus the
square footage of the Expansion I Space as to the First Option Term or (b)
5,000 square feet of the originally demised Premises plus the square footage of
the Expansion I and II Space as to the Second Option Term; and (iii) shall not
have assigned its interest in the Lease nor vacated the Premises.
D. The Option granted hereunder shall be upon the same
terms and conditions of the Lease, except for the rental to be paid by Lessee
and the right to extend the term. The Base Rent applicable during the first
Lease year of each Option Term shall be the monthly Base Rent Lessee is paying
the immediately preceding month increased in the manner described in
subparagraphs 3.A and B of this Addendum.
E. In the event Lessee exercises the Option as to the
First Option Term, commencing at the beginning of the eighth Lease Year, Lessor
agrees to paint the painted surfaces and recarpet the carpeted areas of the
originally demised Premises that were painted and carpeted as part of Lessor's
Work hereunder with paint and carpet of the same quality as Lessor originally
used as part of Lessor's Work described on EXHIBIT B hereto. In the event
Lessee does not exercise its Option to extend the term for the Second Option
Term, no later than the expiration date of the First Option Term, Lessee shall
pay to Lessor two-fifths (2/5) of Lessor's costs for providing the paint and
carpet described in this subparagraph. Lessor shall provide Lessee with an
invoice for such amount. Lessee's obligation to repay such amount shall survive
the expiration of the Lease Term.
F. After exercise of the Option above described, there
shall be no further rights on the part of Lessee to extend the term of the
Lease. Lessee must exercise the Option for the first Option Term to have the
right to exercise the Option for the Second Option Term.
11. RIGHT OF FIRST OFFER. During the Primary Lease Term only, if
Lessor has space in the Building not leased to Lessee, (the "RFO Space") which
is "available for lease" (as defined herein), prior to leasing same to any
third party, Lessor shall offer to lease such space to Lessee on a continuing
basis by written notice upon the terms and conditions of this Lease for a Lease
term coterminous with the term of this Lease for the Premises and subject to
any renewal rights granted to Lessee herein (the "First Offer Right"). The term
"available for lease" shall exclude renewals of leases, expansion options or
rights of first refusal, or similar rights, granted pursuant to leases executed
after Lessee has elected not to exercise its First Offer Right. Additionally,
the RFO Space shall first be considered "available for lease" from the date of
execution of this Lease by both parties.
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A. Lessee shall have a period of ten (10) calendar days
after receipt of Lessor's notice in which to accept Lessor's offer. If Lessee
does not timely or properly exercise its right with respect to the RFO Space
specified in Lessor's notice, Lessor may, at any time within ninety (90) days
thereafter lease the RFO Space to any third party without complying with the
provisions of this paragraph and affording Lessee the right to again exercise
the First Offer Right with respect to the RFO Space specified in Lessor's
notice. Notwithstanding the foregoing, should Lessor wish to conclude a
transaction for terms materially less favorable to Lessor than those contained
within the notice to the Lessee, prior to conclusion of such a transaction,
the space shall be reoffered to Lessee upon the materially less favorable terms
and Lessee shall have the period described above to respond.
B. If Lessee elects to exercise the offer, Lessor and
Lessee shall execute and deliver an amendment to the Lease reflecting the terms
for the RFO Space, which amendment shall be executed and delivered promptly
after Lessee exercises the First Offer Right. The Base Rent for the RFO Space
to be paid by Lessee (including any tenant improvement allowance) shall be a
rate comparable to the rate for comparable space in a comparable building in
the Inverness Business Park, for a comparable term with comparable tenant
improvements, which Base Rent shall be subject to escalation at the same time
and in the same manner as provided in Paragraph 3 of this Addendum. In addition
to the Base Rent, Lessee shall be obligated to pay Lessee's Share of all
Operating Expenses and Lessee's Share as set forth in Paragraph 4.2(a) of the
printed portion of the Lease shall be recalculated by dividing the square
footage of the Premises, including the RFO Space by 54,280 square feet.
C. Lessee's First Offer Right shall continue only if as
of the date of Lessor's notice of availability Lessee (i) shall not be in
default under the Lease; (ii) shall not have sublet more than the square
footage then equal to 5,000 square feet of the originally demised Premises plus
the square footage of the Expansion I and II Space that Lessee had leased;
(iii) shall not have assigned its interest in the Lease nor vacated the
Premises; and (iv) shall have not less than twenty-four (24) months remaining
in the Lease term or current Option Term, as the case may be; provided,
however, if at the time Lessee elects to exercise the First Offer Right, there
shall be less than twenty-four (24) months remaining in the Lease Term or
Option Term, as the case may be, Lessee may, if an option to extend the Lease
is available, exercise such option and extend the term beyond the twenty-four
(24) month period required herein as a condition to its First Offer Right.
X. Xxxxxx agrees to continue to offer the RFO space to
Lessee each time such space again becomes available to lease.
12. EXPANSION OPTION I. Lessor hereby grants Lessee an option
("Expansion Option I") to add to the Premises not less than approximately 7,200
square feet nor more than the remaining space in the Building contiguous to the
Premises as shown on EXHIBIT F attached hereto and made a part hereof (the
"Expansion I Space") during the Fourth Lease Year (as defined below) on the
following terms and conditions:
A. Lessee shall give Lessor written notice of its
election to exercise Expansion Option I no later than forty-two (42) months
after the Lease commencement date. Within thirty (30) days after receipt of
Lessee's notice, Lessor shall notify Lessee of the approximate date the
Expansion Option I Space will be available (which date shall be during the
Fourth Lease Year of the Lease term) and the Base Rent as described herein.
Lessee shall have a period of ten (10) calendar days after receipt of Lessor's
notice in which to (i) exercise Expansion Option I on the terms and conditions
of Lessor's notice; or (ii) exercise Expansion Option I but object to the Base
Rent as set forth in Lessor's notice; in either case, by delivering written
notice of such exercise to Lessor. If Lessee does not timely notify Lessor in
writing of its election to exercise Expansion Option 1, in accordance with (i)
or (ii) of the preceding sentence, Lessee shall be deemed to have waived
Expansion Option I and Expansion Option II hereunder and they shall be of no
further force and effect, and additionally, Lessor shall not be obligated to
offer any space to Lessee pursuant to the First Offer Right described in
Paragraph 11 above. Upon giving such notice, Lessee shall be deemed to have
added the Expansion I Space to the Premises under the Lease as of such date
Lessor can provide Lessee with possession thereof, after completion of any
tenant improvements (except if delayed due to Lessee's Delay defined in Exhibit
B to the Lease or due to circumstances beyond Lessor's control) on the terms
and conditions of Lessor's notice; provided, however, if Lessee exercised
Expansion Option I but objected to the Base Rent, the space shall be deemed
part of the Premises but the initial Base Rent shall be determined pursuant to
subparagraph F below. The Expansion I Space shall be added to the Premises
without requiring further action of the parties, provided, however, the parties
agree to execute an amendment to the Lease setting forth the addition.
B. The terms on which the Expansion I Space shall be
added to the Premises shall be the same terms and conditions set forth in the
Lease, excluding the Base Rent, and being coterminous with the term of the
Lease. In addition to such Base Rent, Lessee shall be obligated to pay Lessee's
Share of all Operating Expenses, and Lessee's Share as set forth in Paragraph
4.2(a) of the printed portion of the Lease shall be recalculated by dividing
the square footage of the Premises, including the Expansion I Space, by 54,280
square feet. The Base Rent to be paid by Lessee (including any tenant
improvement allowance) shall be a rate comparable to the rate for comparable
space in a comparable building in the Inverness Business Park for a comparable
term with comparable tenant improvements. The Base Rent shall be quoted for the
remainder of the Primary Lease Term, excluding the First Option Term. The Base
Rent shall be subject to escalation for the first time the thirty-seventh
(37th) month of the First Option Term in the same manner as described in
Paragraph 3 of the Addendum, and thereafter at the same time as the Base Rent
for the originally demised Premises.
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C. The right of Lessee granted in this paragraph shall
continue only so long as Lessee (i) shall not be in default under the Lease;
(ii) shall not have sublet more than 5,000 square feet of the originally
demised Premises; (iii) shall not have assigned its interest in the Lease, nor
vacated the Premises; (iv) has not exercised its First Offer Right as to such
space; and (v) shall have more than twenty-four (24) months remaining in the
Lease term, provided, however, if there are less than twenty-four (24) months
remaining in the Lease term, if Lessee provides Lessor with notice of its
election to exercise Expansion Option I, such notice shall also serve to
exercise Lessee's first Option set forth in Paragraph 10 of this Addendum. The
amendment to the Lease described in subparagraph A above shall confirm the
terms of the first extension Option as well as the Expansion Option I.
D. All notifications contemplated by this Paragraph,
whether from Lessee to Lessor or from Lessor to Lessee, shall be in writing and
shall be given in the manner provided for notice under this Lease.
E. "Lease Year" as used herein shall mean each twelve
(12) month period commencing with the date the Lease term commences, or any
anniversary thereof, and ending on the preceding day one year later.
F. If Lessee objects to the Base Rent quoted in Lessor's
notice and Lessee timely exercises Expansion Option I under subparagraph A
above, Lessor and Lessee shall attempt in good faith to select one qualified
commercial real estate broker with at least five (5) years experience in
leasing office/industrial space in the southeast Denver metropolitan area
market. If they can so agree, the parties shall split the expense of such
broker's services. The selected broker shall no later than thirty (30) days
after selection make a determination of the Base Rent for the Expansion I Space
based upon the same factors as Lessor has included (for example, the same lease
term to which the Base Rent applies, level of tenant improvements granted by
Lessor but excluding the Base Rent rate quoted by Lessor), which determination
Lessor and Lessee agree to accept as the Base Rent for the Expansion I Space.
Should the parties fail to select one individual within ten (10) days after
Tenant's notice under subparagraph A above, Lessor and Lessee shall each select
a qualified broker as described above, at its own expense, who shall
independently within thirty (30) days thereafter make a determination of the
Base Rent in the same manner described above. Should their individual
determinations of Base Rent differ by less than ten percent (10%), the Base
Rent shall be determined by averaging the two determinations. Should the Base
Rent so determined differ by more than ten percent (10%), the two shall select
a third broker qualified as described above who shall independently make a
similar determination without knowledge of the two previously made. In that
event, the Base Rent applicable to the Expansion I Space shall be determined by
averaging the two closest of the three determinations. For example, if one of
the brokers quotes a Base Rent rate of $13.00 per square foot, the second
broker quotes a Base Rent rate of $14.00 per square foot and the third broker
quotes a Base Rent rate of $11.50 per square foot, the Base Rent shall be the
average of the two closest of the three determinations, i.e., $13.00 + $14.00 =
$27.00/2 = $13.50 per square foot.
13. EXPANSION OPTION II. Lessor hereby grants Lessee an option
("Expansion Option II") to add to the Premises not more than approximately
9,600 square feet of space representing all the remaining space in the Building
(the "Expansion II Space") on the following terms and conditions:
A. Lessee shall give Lessor written notice of its desire
to add the Expansion II Space no later than the fifty-first (51st) month after
the Lease commencement date. Within thirty (30) days after receipt of Lessee's
notice, Lessor shall notify Lessee of the approximate date the Expansion II
Space will be available, which space may not all be available at one time, but
which shall all be available no later than during the Sixth Lease Year of the
Lease term and the Base Rent as described herein. Lessee shall have a period of
five (5) calendar days after receipt of Lessor's notice in which to (i)
exercise Expansion Option II on the terms and conditions of Lessor's notice or
(ii) exercise Expansion Option II but object to the Base Rent as set forth in
Lessor's notice; in either case, by delivering written notice of such exercise
to Lessor. If Lessee does not timely notify Lessor of its election to exercise
Expansion Option II, in accordance with (i) or (ii) of the preceding sentence,
Lessee shall be deemed to have waived Expansion Option II hereunder and it
shall be of no further force and effect, and additionally, Lessor shall not be
obligated to offer any space to Lessee pursuant to the First Offer Right
described in Paragraph 11 above. Upon giving such notice, Lessee shall be
deemed to have added the Expansion II Space to the Premises under the Lease as
of the date Lessor can make such space available to Lessee for occupancy, but
no later than during the Sixth Lease Year after completion of any tenant
improvements (except if delayed due to Lessee's Delay defined in Exhibit B to
the Lease or due to circumstances beyond Lessor's control) on the terms and
conditions of Lessor's notice; provided, however, if Lessee exercised Expansion
Option II but objected to the Base Rent, the space shall be deemed part of the
Premises but the initial Base Rent shall be determined pursuant to subparagraph
F below. The Expansion II Space shall be added to the Premises without
requiring further action of the parties, provided, however, the parties agree
to execute an amendment to the Lease setting forth the addition.
B. The terms on which the Expansion II Space shall be
added to the Premises shall be the same terms and conditions set forth in the
Lease, excluding the Base Rent, and being coterminous with the term of the
Lease. In addition to such Base Rent, Lessee shall be obligated to pay
Lessee's Share of all Operating Expenses, and Lessee's Share as set forth in
Paragraph 4.2(a) of the printed portion of the Lease shall be recalculated by
dividing the square footage of the Premises, including the Expansion II Space,
by 54,280 square feet. The Base Rent to be paid by Lessee (including any tenant
improvement allowance) shall be a rate comparable to the rate for comparable
space in a comparable building in the Inverness Business Park for a comparable
term with comparable tenant improvements. The Base Rent shall be quoted for the
remainder of the Primary Lease Term, including the First Option Term. The Base
Rent shall be subject to escalation for the first time the thirty-seventh
(37th) month of the First Option Term in the same manner as
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described in Paragraph 3 of the Addendum, and thereafter at the same time as
the Base Rent for the originally demised Premises.
C. The right of Lessee granted in this paragraph shall
continue only so long as Lessee (i) shall not be in default under the Lease;
(ii) shall not have sublet more than 5,000 square feet of the originally
demised Premises plus the square footage of the Expansion I Space; (iii) shall
not have assigned its interest in the Lease, nor vacated the Premises; (iv) has
not exercised its First Offer Right as to such space; and (iv) shall have
extended the term of the Lease for the first extension Option described in
Paragraph 10 of this Addendum; and (v) Lessee did not add all the remaining
space in the Building as Expansion Option I.
D. All notifications contemplated by this Paragraph,
whether from Lessee to Lessor or from Lessor to Lessee, shall be in writing and
shall be given in the manner provided for notice under this Lease.
E. If Lessee objects to the Base Rent Lessor quotes, the
Base Rent shall be determined following the procedure described in Paragraph
12.F above.
14. LESSOR'S OPTION TO CANCEL ASSIGNMENT OR SUBLEASE BY LESSEE.
A. In the event that Lessee or any sublessee or assignee
of Lessee (all hereinafter referred to as "Lessee"), shall intend to sublet all
or a portion of the Premises (which portion is more than 40% of the square
footage in the building on the Premises or more than 40% of the entire Premises
and which sublease is for more than a one year term including options) or
assign its interest under this Lease, to one other than a "Lessee Affiliate",
as defined in Paragraph 12.2 of the printed portion of the Lease, then Lessee
shall give to Lessor written notice of such intent, herein referred to as
"Lessee's Notice of Intent", in strict accordance with the procedures
hereinafter set forth.
B. Lessee's Notice of Intent shall set forth the date,
herein referred to as the "Termination Date", upon which it is intended that a
proposed sublease or assignment would become effective. The Termination Date
shall not be less than ninety (90) days nor more than one hundred and twenty
(120) days from the date that Lessor receives Lessee's Notice of Intent. Within
twenty (20) days after Lessor's receipt of Lessee's Notice of Intent, Lessor
may give written notice to Lessee that Lessor elects to terminate this Lease
effective as of the Termination Date. If Lessor shall so elect to terminate
this Lease then neither Lessor nor Lessee shall be liable to the other for any
reason having to do with this Lease from and after the Termination Date except
for matters which shall have arisen prior to termination and except for the
obligations of Lessee that exist upon termination.
C. In the event that Lessor does not exercise its right
to terminate this Lease and in the event that Lessee does not in fact execute a
final and binding sublease or assignment within one hundred and twenty (120)
days after said Termination Date, which Sublease or Assignment term commences
within one hundred and sixty (160) days after said Termination Date, then
Lessee shall be obligated to give another Lessee's Notice of Intent to Lessor
before Lessee may assign or sublease and the terms of this Addendum shall
reapply. The failure of Lessor to exercise its right to terminate this Lease
under this Paragraph shall not be deemed a waiver of the right to subsequently
terminate this Lease in accordance with the terms hereof, as it is intended
that this option to cancel shall continue to exist during the entire term of
this Lease and any extension thereof.
D. In the event that Lessor, from time to time, declines
to exercise its option to cancel this Lease, that decision shall not be deemed
a waiver by Lessor of Lessor's right to approve or disapprove of the assignment
or subletting by Lessee as the same is otherwise provided for in Paragraph 12.1
of the printed portion of the Lease.
15. MISCELLANEOUS.
A. Business Day's. As used in this Lease, the term
"business day" shall mean a calendar day Monday through Friday except such
days the U.S. Postal Service is closed.
B. Utility Service. The parties acknowledge that all
utilities servicing the Premises are separately metered except for water and
sewer service.
IN WITNESS WHEREOF, this Addendum is executed as of the day
and year first above written.
T-NETIX, INC., a Colorado corporation Pacifica 67 Inverness, LLC, a
Colorado limited liability company
By: /s/ [ILLEGIBLE]
------------------------------------
Title: EVP AND CFO By: /s/ [ILLEGIBLE]
--------------------------------- ------------------------------
Authorized Signature
Attest: "Lessor"
By: /s/ XXXXXXXX X. XXXXX
------------------------------------
Title: Administrative Assistant
---------------------------------
"Lessee"
7
16
EXHIBIT A
SITE PLAN 'A'
[MAP OF OFFICE BUILDING COMPLEX]
17
EXHIBIT B
WORK LETTER
Re: Lessee: T-NETIX, INC.
Premises: 00 Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxxx, XX
Concurrently herewith, you as Lessee and the undersigned, as Lessor,
have executed a Lease covering the above captioned Premises. The provisions of
said Lease are herein incorporated by reference as if fully set forth herein.
In consideration of the execution of said Lease, Lessee and Lessor mutually
agree as follows:
1. Lessee and Lessor have finalized, initialled and approved a
space plan for the Premises dated March 15, 1996 (the "Plan") and outline
specifications for the Building.
2. Lessor's contractor shall perform the finish work for the
Premises shown in the Plan ("Lessor's Work") at Lessor's costs and expense. In
addition, Lessor has agreed to reimburse Lessee $37,575.00 for the
architectural expenses incurred by Lessee in preparation of the Plan, which
amount shall be paid within thirty (30) days after Lessor receives an invoice
and such substantiation as Lessor may reasonably request therefor from Lessee.
Lessee shall be responsible for all other improvements or finish associated
with Lessee's use or occupancy of the Premises.
3. Changes to the Plan may be made only upon prior written
approval by Lessor and Lessee, consent for which shall not be unreasonably
withheld. Notwithstanding the foregoing, Lessor reserves the right within
Lessor's reasonable discretion to change or substitute materials which may have
been originally specified in the Plan with materials that are substantially
equivalent. All costs incurred by changes requested by Lessee, including costs
of the revisions in architectural, mechanical and electrical working drawings
and costs of construction and materials, and reimbursables necessitated by such
changes, shall be paid for in full by Lessee upon billing by Lessor or Lessor's
designer.
4. Notwithstanding the provisions of the Lease, the commencement
of the term of the Lease and Lessee's rental obligations will not be delayed or
extended by any delay: (i) caused by modifications, revisions and changes to
the Plan or final working drawings due to changes requested by Lessee, its
agents or employees; (ii) in the delivery or installation of any special or
non-standard building items specified by Lessee (of which Lessor will notify
Lessee as soon as practicable after execution of the Lease and thereafter in
the course of regularly scheduled construction meetings); or (iii) of any kind
or nature in the completion of the Premises caused by Lessee, its agents or
employees ("Lessee Delay"). Lessee shall pay all costs arising from Lessee
Delay.
5. Lessee has designated Xxxx Xxxxxxxxx as its sole
representative with respect to the matters set forth in this Work Agreement,
who shall have full authority and responsibility to act on behalf of the Lessee
as required in this Work Letter. Lessee shall have the right, by written
notice to Lessor, to change or add a designated representative.
6. Lessor has designated Xxxx Xxxxx or Xxxxxxx Xxxxxxx as its
sole representatives with respect to Lessor's responsibilities under this Work
Agreement, who shall have full authority and responsibility to act on behalf of
the Lessor as required in this Work Letter. Lessor shall have the right, by
written notice to Lessee, to change its designated representative.
7. Any and all notices required to be given hereunder shall be in
writing in accordance with the terms and provisions of the Lease. However, in
all cases notices shall also be given to those individuals to be specified
pursuant to Paragraphs 5 and 6 above.
Very truly yours,
PACIFICA 67 INVERNESS. LLC,
a Colorado limited liability company
By: /s/ ILLEGIBLE
-----------------------------------------
Authorized Representative
"Lessor"
AGREED AND ACCEPTED
this 15th day of April, 1996.
T-NETIX, INC.,
a Colorado corporation
By: /s/ ILLEGIBLE
-------------------------------------
Title: EVP & CFO
-------------------------------------
ATTEST:
By: /s/ XXXXXXXX X. XXXXX
-------------------------------------
Title: ADMIN ASST
-------------------------------------
18
EXHIBIT C TO LEASE AGREEMENT
RULES AND REGULATIONS
To that certain Lease dated April 15, 1996, between PACIFICA 67
INVERNESS, LLC, A COLORADO LIMITED LIABILITY COMPANY, as lessor, and T-NETIX,
INC., A COLORADO CORPORATION, as Lessee, covering the property located at 00
Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx.
To the extent that this Addendum conflicts with, modifies or supplements other
portions of the Lease, the provisions contained in this Addendum shall govern
and control the rights and obligations of the parties.
I. SIGN CRITERIA: See EXHIBIT E, attached hereto and made a part hereof.
A. General Restrictions:
1. No electrical or audible signs will be allowed.
2. Except as provided herein, no banners, pennants, placards,
freestanding signs, or signs affixed to automobiles or trailers
are allowed on the building, in the landscaped areas, or on
streets or parking area. The restriction pertaining to
automobiles ortrailers does not apply to magnetic or painted
identification signs placed on company or private vehicles for
use in the normal course of business.
II. HAZARDOUS SUBSTANCES:
(a) REPORTABLE USES REQUIRE CONSENT. The term "HAZARDOUS
SUBSTANCES" as used in this Lease shall mean any product, substance, chemical
material or waste whose presence, nature, quantity and/or intensity of
existence, use, manufacture, disposal, transportation, spill, release or
effect, either by itself or in combination with other materials expected to be
on the Premises, is either: (i) potentially injurious to the public health,
safety or welfare, the environment or the Premises, (ii) regulated or monitored
by any governmental authority, or (iii) a basis for liability of Lessor to any
governmental agency or third party under any applicable statute or common law
theory. Hazardous Substance shall include, but not be limited to,
hydrocarbons, petroleum, gasoline, crude oil or any products, by-products or
fractions thereof. Lessee shall not engage in any activity in, on or about the
Premises which constitutes a Reportable Use (as hereinafter defined) of
Hazardous Substances without the express prior written consent of Lessor and
compliance in a timely manner (at Lessee's sole cost and expense) with all
Applicable Law (all applicable statutes, ordinances, rules, regulations,
orders, covenants, requirement of any governmental or quasi-governmental entity
now in effect or which may hereafter come into effect.) "REPORTABLE USE" shall
mean (i) the installation or use of any above or below ground storage tank,
(ii) the generation, possession, storage, use, transportation, or disposal of a
Hazardous Substance that requires a permit from, or with respect to which a
report, notice, registration or business plan is required to be filed with, any
governmental authority. Reportable Use shall also include Lessee being
responsible for the presence in, on or about the Premises of a Hazardous
Substance with respect to which any Applicable Law requires that a notice be
given to persons entering or occupying the Premises or neighboring properties.
Notwithstanding the foregoing, Lessee may, without Lessor's prior written
consent, but in compliance with all Applicable Law, use any ordinary and
customary materials reasonably required to be used by any Lessee in the normal
course of Lessee's business permitted on the Premises, so long as such use is
not a Reportable Use and does not expose the Premises or neighboring properties
to any meaningful risk of contamination or damage or expose Lessor to any
liability therefor. In addition, Lessor may (but without any obligation to do
so) condition its consent to the use or presence of any Hazardous Substances,
activity or storage tank by Lessee upon Lessee's giving Lessor such additional
assurance as Lessor, in its reasonable discretion, deems necessary to protect
itself, the public, the Premises and the environment against damage,
contamination or injury and/or liability therefrom or therefor, including, but
not limited to, installation (and removal on or before Lease expiration or
earlier termination) or reasonably necessary protective modification to the
Premises (such as concrete encasements) and/or deposit of an additional
Security Deposit.
(b) DUTY TO INFORM LESSOR. If Lessee knows, or has reasonable
cause to believe, that a Hazardous Substance, or a condition involving or
resulting from same, has come to be located in, on, under or about the
Premises, other than as previously consented to by Lessor, Lessee shall
immediately give written notice to such fact to Lessor. Lessee shall also
immediately give Lessor a copy of any statement, report, notice, registration,
application, permit, business plan, license, claim, action or proceeding given
to, or received from, any governmental authority or private party, or persons
entering or occupying the Premises, concerning the presence, spill, release,
discharge of, or exposure to, any Hazardous Substance or contamination in, on,
or about the Premises, including but not limited to all such documents as may
be involved in any Reportable Uses involving the Premises.
(c) BOND TO THE POSTED. In the event of such notification by
Lessee, Lessee shall post a bond satisfactory to the Lessor equal to the
estimated cost of removal, transporting, storage, disposal and clean up of its
regulated substances should Lessee vacate the leased premises without lawfully
disposing of those regulated substances.
(d) INDEMNIFICATION. Lessee shall indemnify, protect, defend and
hold Lessor, its agents, employees, lenders and ground lessor, if any, and the
Premises, harmless from and against any and all loss of rents and/or damages,
liabilities, judgments, costs, claims, liens, expenses, penalties, permits and
attorney's and
19
consultant's fees arising out of or involving any Hazardous Substance or
storage tank brought onto the Premises by or for Lessee or under Lessee's
control. Lessee's obligations under this Paragraph II shall include, but not
be limited to, the effect of any contamination or injury to person, property or
the environment created or suffered by Lessee, and the cost of investigation
(including consultant's and attorney's fees and testing), removal, remediation,
restoration and/or abatement thereof, or of any contamination therein involved,
and shall survive the expiration or earlier termination of this Lease. No
termination, cancellation or release agreement entered into by Lessor and
Lessee shall release Lessee from its obligations under this Lease with respect
to Hazardous Substances or storage tanks, unless specifically so agreed by
Lessor in writing at the time of such agreement.
(e) LESSOR'S OBLIGATION. At the commencement date of the Lease
term, Lessor shall deliver the Premises to Lessee free and clear of Hazardous
Substances that violate Applicable Law.
The provisions of this paragraph are in addition to, and not in lieu
of, any other provisions contained in this Lease.
Ill. TEMPERATURE:
Lessee shall maintain the air temperature in its leased space warm
enough to prevent the freezing of plumbing and sprinkler systems, if any.
IV. DISCLOSURE
(a) This Lease has been prepared by Pacifica Holding Company, a
Colorado Corporation, at the request of the Lessor and Lessee, who are herein
referred to as "the Parties" without regard to number or gender. The Parties
have been advised to have this document reviewed by their own independent
counsel, and confirm that in signing this document, they have not relied on any
acts or any conduct of Pacifica Holding Company, and its agents with regard to
the interpretation or meaning of this documents. The Parties jointly and
severally waive any and all claims, actions, demands, and loss against Pacifica
Holding Company, its agents, employees, and each of them, that a Party may
incur by reason of any act, error, or omission in the preparation of this
document and in its interpretation and meaning, whether or not the
interpretation and meaning is the result of determination by a court or
arbitration panel of competent jurisdiction. The preceding waiver provisions
have been negotiated by and between the Parties on the one part, and Pacifica
Holding Company on the other part.
(b) Please be advised that the Lessor or Lessee of the Premises
may be subject to the Americans With Disabilities Act (the ADA), a Federal law
codified at 42 USC Section 12101 et seq. Among other requirements of the ADA
that could apply to the Premises, Title III of the ADA requires the Lessor and
Lessee of "public accommodations" to remove barriers to access by disabled
persons and provide auxiliary aids and services for hearing, vision or speech
impaired persons by January 26, 1992. The regulations under Title III of the
ADA are codified at 28 CFR Part 36. The Lessor and Lessee have been advised to
have independent counsel review the ADA and the regulations to determine if
this law would apply, and the nature of the requirements.
20
EXHIBIT D 000 X. Xxxx, XX Xxx Xxx, Xxxxxxx, Xxxxxx 00000, XXX
LETTER OF CREDIT Telex: 5101007591
Cable: INTRUSTBK
Telephone: 000-000-0000
Fax: 000-000-0000
==========================================================================================================================
ISSUING BANK: IRREVOCABLE
LETTER OF CREDIT
INTRUST BANK, N.A.
000 X. XXXX
XXXXXXX, XXXXXX 00000 NUMBER:
USA
--------------------------------------------------------------------------------------------------------------------------
PLACE OF ISSUE: WICHITA, KANSAS USA EXPIRY DATE: APRIL 15, 1997
--------------------------------------------------------------------------------------------------------------------------
DATE OF ISSUE : APRIL 15, 1996 PLACE FOR PRESENTATION: WICHITA, KANSAS USA
--------------------------------------------------------------------------------------------------------------------------
APPLICANT: BENEFICIARY:
T-NETIX, INC. PPACIFICA 67 INVERNESS, LLC
0000 XXXXX XXXXXX XXXXXX c/o PACIFICA HOLDING COMPANY
XXXXXXXXX, XX 00000 0000 XXXXX XXXXXX XXXXXX, XXXXX 000
XXXXXXXXX XX 00000
--------------------------------------------------------------------------------------------------------------------------
ADVISING BANK: AMOUNT:
USD225,000.00 **TWO HUNDRED TWENTY FIVE THOUSAND DOLLARS
AND 00/100**
-----------------------------------------------------------
Credit available with Nominated bank:
RESTRICTED TO COUNTERS OF ISSUING BANK
--------------------------------------------------------------
BY: PAYMENT
TENER: SIGHT
AGAINST THE DOCUMENTS DETAILED HEREIN AND BENEFICIARY'S
DRAFT(s) DRAWN ON:
INTRUST BANK, N.A., WICHITA, KANSAS USA
--------------------------------------------------------------------------------------------------------------------------
DOCUMENTS REQUIRED
1. THIS LETTER OF CREDIT NO.______; AND
2. CERTIFICATION SIGNED BY AN AUTHORIZED REPRESENTATIVE OF PACIFICA 67 INVERNESS, LLC, A COLORADO LIMITED LIABILITY
COMPANY, OR AN OFFICER OF ITS TRANSFEREE OR ASSIGNEE, STATING ESSENTIAL AS FOLLOWS:
"THE UNDERSIGNED BENEFICARY REQUESTS PAYMENT OF THE ENCLOSED DRAFT UNDER THE ENCLOSED
LETTER OF CREDIT."
SPECIAL CONDITIONS:
1. THIS LETTER OF CREDIT SHALL BE TRANSFERABLE AND ASSIGNABLE TO ANY PERSON OR ENTITY WHO IS THE SUCCESSOR OR ASSIGNEE
OF BENEFICIARY'S INTEREST UNDER THE LEASE ENTERED INTO ON OR ABOUT ________________, BETWEEN PACIFICA 67 INVERNESS,
LLC, A COLORADO LIMITED LIABILITY COMPANY AND T-NETIX, INC., A COLORADO CORPORATION.
--------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------
WE HEREBY ISSUE THE IRREVOCABLE DOCUMENTARY CREDIT IN YOUR FAVOR. IT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS (1993 REVISION, INTERNATIONAL CHAMBER OF COMMERCE, PARIS, FRANCE, PUBLICATION 500) AND ENGAGES US IN
ACCORDANCE WITH THE TERMS THEREOF. THE NUMBER AND THE DATE OF THE CREDIT AND THE NAME OF OUR BANK MUST BE QUOTED ON ALL
DRAFTS REQUIRED. IF THE CREDIT IS AVAILABLE BY NEGOTIATION, EACH PRESENTATION MUST BE NOTED ON THE REVERSE SIDE OF THIS
ADVICE BY THE BANK WHERE THE CREDIT IS AVAILABLE.
INTRUST BANK, N.A.
AUTHORIZED SIGNATURE
Page 1 of 1
--------------------------------------------------------------------------------------------------------------------------
21
EXHIBIT E
Page 1 of 9
1) [PICTURE OF BUILDING IDENTIFICATION SIGNS]
2) [PICTURE OF INTERSTATE BUILDING IDENTIFICATION SIGNS]
3) [PICTURE OF TENANT IDENTIFICATION SIGNS]
4) [PICTURE OF INFORMATIONAL SIGNS]
INVERNESS BUSINESS PARK SIGNAGE MANUAL
22
EXHIBIT E
Page 2 of 9
[DIAGRAM OF TEMPORARY SIGN]
23
EXHIBIT E
Page 3 of 9
Inverness Business Park has established a complete system of exterior signage.
The system is designed to make the Park more efficient by informing, directing
and controlling residents and visitors, and still enhance the appearance of
Inverness by meeting the same high standards of aesthetic quality as the
community itself. All signage, temporary as well as permanent, are to be
designed and constructed in compliance with this guideline.
There are five types of signs in the signage system. They are:
1) Building Identification Signs
2) Interstate Building Identification Signs
3) Tenant Identification Signs
4) Informational Signs
5) Temporary Signs
Each type of sign is discussed in this manual.
The Inverness Planning and Architectural Control Committee (IPACC) oversees
adherence to the signage system. Design for any proposed sign(s) must be
submitted to IPACC for review and approval. Incorporated in the signage design
should be details of design, materials, lettering, location, mounting, size,
color and lighting.
Signage plans are to be submitted to:
THE INVERNESS PLANNING AND ARCHITECTURAL CONTROL COMMITTEE
0 Xxxxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
The individuals and or companies submitting plans will be notified by IPACC if
any changes or adjustments are necessary and will receive written notification
when the plan is approved.
24
EXHIBIT E
Page 4 of 9
BUILDING IDENTIFICATION SIGN
This is the principal sign identifying the name of each building site or the
name(s) of the company(s) occupying the building(s) and the building address
(number and street) in a consistent location and typeface on the sign. The sign
is to be placed along the street near the site's major auto driveway entrance.
In most cases, one address sign per site is sufficient and normally, only one
address sign is allowed. The exception may be those cases where a site has more
than one major vehicular entrance on different sides of the site or where the
nature of the site and adjacent roadways is such that IPACC determines that
more than one sign is desirable for proper identification. No signs, individual
letters or numbers may be placed directly on office or industrial buildings.
Signs may be placed on commercial buildings in special situations where IPACC
determines it appropriate.
General Specifications:
1. Leg Frame - Fabricated from high quality rectangular tubular steel
formed into the standard shape and one of the approved dimensions
shown in "Exhibit A." Because the frame is hollow, all electrics for
illuminated signage can be concealed. We recommend that identification
signs be illuminated.
2. Sign Box - Formed from steel channel and mounted within the frame.
3. Sign Faces - Constructed of 18 gauge steel with an angle iron support
frame on the back. The sign must have the same layout of information
on both sides.
4. Graphics on the sign faces can be either of the following. We
recommend "a".
a. Routed letters and numbers backed with plexiglass and
illuminated from the interior.
25
EXHIBIT E
Page 5 of 9
b. Face mounted plexiglass letters and numbers with the address
portion faced with scotchlite or equally reflective material.
Letter height shall not exceed 10" for the company name(s) and
building number, 6" for any descriptive information, and 3"
for the street name. Owners or tenants are encouraged to
design their own trademark graphics for their sign.
5. Color - Sign color can be either a silver xxxx background with black
letters or a black background with off-white letters. In all cases,
the frame color is to be black. The use of color on the company logo
and name is encouraged.
6. Placement of an identification sign must relate to two factors. One,
the best position for viewing from the roadway and two, the best
visual relationship to the architecture. An identification sign must
be placed perpendicular to approaching vehicular traffic and not
obscure any other sign or reduce sight distance for traffic safety.
INTERSTATE/BUILDING IDENTIFICATION SIGN
Those buildings with Interstate-25 frontage may have signage designed to
identify major tenant(s) for the motorist on the Interstate. The signs are
special purpose and to be allowed only for tenants with national stature, with
a highly visible and instantly recognized company logo.
The sign shall be custom designed to conform to those now existing.
TENANT IDENTIFICATION SIGN
The purpose of tenant identification signs is to provide a means of identifying
tenants and their location in a multitenant and multientry type building. The
tenant sign is located adjacent the exterior front door access to the tenants
leased space.
26
EXHIBIT E
Page 6 of 9
General Specifications:
1. Leg Frame - Fabricated for high quality 1" x 3" tubular steel into the
standard shape and size.
2. Sign Box - 1" x 3" steel channel formed into a 2 feet x 4 feet frame
and mounted within the leg frame.
3. Sign Faces - Constructed of 18 gauge steel with an angle iron support
frame on the back of each face.
4. Graphics - Face mounted plexiglass or vinyl letters depicting the
company name and logo on one face only.
5. Colors - Sign color can be either silver xxxx with black letters or
black with off-white letters. In all cases, the frame color is to be
black.
INFORMATIONAL SIGN
Informational signage includes instructions to visitors, vendors, customers,
directional signage, designated parking areas, and driveway entrance signs.
1. Leg Frame - Fabricated for high quality 1" x 3" tubular steel into the
standard shape and size.
2. Sign Box - 1" x 3" steel channel formed into a frame and mounted
within the leg frame. The size of the frame may vary from 18" x 18" to
24" x 24".
3. Sign Faces - Constructed of 18 gauge steel with an angle iron support
frame on the back of each face.
4. Graphics - Face mounted plexiglass letters and numbers. Maximum size
3".
5. Colors - Frame and sign face black with off white letters.
27
EXHIBIT E
Page 7 of 9
TEMPORARY SIGN
Temporary signs placed on the property are to be removed after the specific
purpose they have served has been satisfied. Examples of such signs are
temporary building identification signs, construction signs, and for lease or
for sale signs.
General Specifications:
1. Leg Frame - Fabricate from steel pipe (1 1/2" diameter) into the shape
and size to fit a standard 36" x 36" sign face.
2. Sign Face - 18 gauge steel backed and attached to the leg frame with
1" x 1" tubular steel.
3. Graphics - Face mounted with vinyl letters and numbers on one face
only. Nomenclature on real estate signage is limited to the nature of
offering (for sale, for lease, etc.), the name of the offering real
estate company, their logo, and phone number.
4. Colors - Frame and back of sign face black. Sign face off-white with
black letters and numbers. Company logo any color.
5. One sign is permitted per site and is to be located parallel to the
street at least 25 feet from the street curb. No signs may be mounted
on building walls.
28
EXHIBIT E
Page 8 of 9
[DIAGRAM OF BUILDING IDENTIFICATION SIGN]
29
EXHIBIT E
Page 9 of 9
[DIAGRAM OF TENANT IDENTIFICATION AND INFORMATION SIGN]
30
EXHIBIT F
SITE PLAN 'A'
[MAP OF OFFICE BUILDING COMPLEX]
31
AMENDMENT NUMBER ONE TO LEASE AGREEMENT
THIS AMENDMENT NUMBER ONE TO LEASE AGREEMENT is entered into as of the
20th day of May, 1996, by and between Pacifica Development Properties, II LLC,
a Colorado limited liability company ("Lessor") and T-Netix, Inc., a Colorado
corporation ("Lessee").
Recitals:
A. On or about April 15, 1996, Lessor and Lessee entered into a
written lease agreement (the "Lease") pertaining to approximately 37,575 square
feet of space located at 00 Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx (the
"Premises").
B. The Lessor's name was incorrectly reflected in the Lease as
Pacifica 67 Inverness, LLC, a Colorado limited liability company.
X. Xxxxxx and Lessee now desire to amend the Lease and the prior
amendments thereto, if any, in the manner and form hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, Lessor and Lessee
hereby agree as follows:
1. The Lease is hereby amended to substitute in all places in the
Lease where the name of the Lessor appears, the Lessor's correct name, Pacifica
Development Properties, II LLC, a Colorado limited liability company.
2. If there is any conflict between the terms and provisions of
this Amendment and the terms and provisions of the Lease or any prior
amendments thereto, the terms and provisions of this Amendment shall govern.
Except as herein specifically set forth, all other provisions of the Lease and
any prior amendments thereto shall remain in full force and effect and be
binding upon the parties in accordance with their terms.
IN WITNESS WHEREOF, the parties have executed this Amendment to be
effective as of the date set forth above.
T-Netix, Inc., Pacifica Development Properties, II LLC
a Colorado corporation a Colorado limited liability company
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------------------- ---------------------------
Title: [ILLEGIBLE] Authorized Signature
---------------------
ATTEST "Lessor"
By: /s/ [ILLEGIBLE]
---------------------------
Title: [ILLEGIBLE]
------------------------
"Lessee"