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EXHIBIT 10.13
LEASE AGREEMENT
THIS LEASE AGREEMENT is entered into this 17th day of October, 1996,
between Flatiron Park Company, hereinafter called "Lessor," and SpectraLink,
Corporation, hereinafter called "Lessee."
1. Introduction. The Lessor has the legal right to lease the
real property and improvements (hereinafter called "Premises") described in
Exhibit "A," which exhibit is attached hereto and incorporated by reference.
The Premises comprise all of 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx. The
parties now desire to enter into an agreement providing for the Lessee's lease
of the Premises, and this document sets forth in writing the terms of their
agreement.
2. Premises, Term of Lease, Rental. The Lessor hereby leases
the Premises to the Lessee, and the Lessee hereby leases the Premises from the
Lessor, for a term commencing at 12:01 A.M. on the 1st day of May, 1997 and
ending at 11:59 P.M. on the 30th day of June, 2005, unless sooner terminated as
herein set forth. The Lessee agrees to pay Lessor as rent for the Premises
according to the terms of the RENT SCHEDULE in paragraph 31 of this lease. Said
rent is payable, in advance, by 12:00 noon on the first day of each and every
month of the term hereof at the office of the Lessor.
In the event that the tenancy commences on a date other than the first
day of a month, the rent for the first and last months of the tenancy shall be
prorated and paid on the date of commencement and the first day of the last
month, respectively.
3. Condition of Premises. The Lessor, shall deliver the
Premises to Lessee clean and free of debris on the Lease commencement date
(unless the Lessee is already in possession) and the Lessor warrants to the
Lessee that the plumbing, lighting, air-conditioning, and heating 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 the Lessor, after receipt of written notice from
the Lessee setting forth with the specificity nature of the violation, to
promptly rectify such violation. The Lessee's failure to give
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such written notice within thirty (30) days after the Lease commencement date
shall cause the conclusive presumption that the Lessor has complied with all of
the Lessor's obligations hereunder. The warranty contained in this paragraph
shall be of no force or effect if, prior to this date, the Lessee was an
occupant of the Premises. Except as otherwise set forth in this paragraph, the
Lessee accepts the Premises in the condition existing as of the Lease
commencement date or the date that the Lessee takes possession of the Premises,
whichever is earlier, and the Lessee hereby waives any and all warranties of
condition or habitability, suitability for occupancy, use, or habitation,
merchantability or fitness for a particular purpose, whether express or
implied, relating to the Premises.
4. Use of Premises. The Lessee covenants and agrees that it
will not without Lessor's previous written consent, use, suffer or permit the
Premises, or any part thereof, to be used for any purpose other than that of
conducting thereon an electronic research and development and manufacturing
business. Lessee acknowledges that its use of the Premises is subject to all
applicable zoning, municipal, county and state laws, ordinances and regulations
governing and regulating the use of the Premises, and further subject to any
covenants or restrictions of record (a copy of such covenants and restrictions
are attached as Exhibit "B" and incorporated by reference). Lessee shall have
no right to grant utility easements or rights of way on the Premises or to
permit the construction or location on the Premises of utility equipment or
infrastructure without Lessor's prior written consent. Lessee further agrees
that no materials (including toxic chemicals) other than trash and rubbish in
sanitary containers approved by Lessor will be placed outside the building. No
vehicles of any kind will be parked on the Premises except in the designated
parking areas. No vehicles will be parked at the loading docks other than
while being actively loaded or unloaded. No vehicles, trailers, or other
equipment of Lessee or its agents, employees, or invitees shall be parked
overnight on the Premises without the written
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permission of Lessor, except that Lessee may park overnight two of its vehicles
in designated parking spots
5. Assignment. It is expressly understood and agreed by the
Lessee that the Lessee's leasehold interest may not be assigned or sublet in
whole or in part without in each case having first obtained the written consent
of the Lessor. Such consent will not be unreasonably withheld.
6. Access to Premises. It is expressly understood and agreed
by the Lessee that the Lessor or their agents shall have free access at all
reasonable hours to the Premises for the purpose of examining the same or
exhibiting the same to prospective buyers or lessees (Lessor will use
reasonable efforts to screen all prospective buyers or Lessees to determine
that they are not competitors of Lessee and will give Lessee 24 hour notice
before exhibiting the Premises) or for making repairs on the Premises which the
Lessor may desire to make, or for accessing, servicing or installing utility
equipment, transmission lines, or other infrastructure on the Premises, Lessor
will make reasonably diligent efforts not to disturb Lessee's business during
any Lessor's access. Lessor shall have the right to use any and all means that
Lessor may deem necessary and proper to enter any portion of the Premises in an
emergency, and such entry shall not under any circumstances be construed or
deemed to be a forcible or unlawful entry into, or a detainer of, the Premises
or an eviction, actual or constructive, of the Lessee from the Premises.
7. Alterations. Lessee shall not make any alterations,
additions, or improvements including, but not limited to painting and signs, in
or to the Premises without Lessor's prior written consent, which may be
withheld without cause. In particular, and not by way of limitation, Lessee
agrees that: (a) Lessee will submit to Lessor all plans for signs to be
erected, substituted, changed or modified on the Premises, including color,
site, location, height, and lighting; (b) No temporary structure, tent, or
trailer shall be constructed or permitted to remain on the Premises; (c) No
apparatus of any kind may be added to the exterior of the building by Lessee;
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and (d) No locks may be changed on the Premises without Lessor's consent. Any
alterations, additions, or improvements that the Lessee shall desire to make
and which require the consent of the Lessor shall be presented to the Lessor in
written form with scaled, detailed plans showing modifications of all
electrical, heating, ventilating, air-conditioning, plumbing and other systems
as well as modifications to walls, permanent partitions, doors and other
structures, and the Lessee shall furnish as-built scaled plans upon the
completion of the modifications. Lessee agrees that it shall be solely
responsible for all costs and expenses incurred in connection with any
alterations, additions, or improvements desired by Lessee, including, without
limitation, the cost of any additional construction, modifications, or
improvements mandated under federal, state, or local law as a result of
Lessee's alterations, additions, or improvements.
8. Landlord Not Liable. Lessor shall not be liable for any
damages occasioned by failure to keep the Premises in repair, and shall not be
liable for any damage done or occasioned by or from electrical current,
plumbing, gas, water, steam, or sewage, or the bursting, leaking, running or
failure of operation of any radiator, tank, water closet, wash stand, waste
pipe, air conditioning, or any other apparatus, above, upon, or about the
Premises or the Building, nor the damage occasioned by water, snow, or ice
being upon any sidewalk or entrance way, or being upon or coming through the
roof, sky light, trap door or any other opening in the Premises or the
Building, nor from loss suffered by fire, regardless of origin, wind, rain,
flood or other elements, nor from any damage arising from the action or
negligence of Lessee or other occupants of the Building or of any owners or
occupants of its adjacent or contiguous property. Lessee hereby releases,
discharges, and agrees to indemnify Lessor of and from any and all claims,
demands, and liability for any loss, damage, injury, or other casualty to
property, whether it be that of either of the parties hereto or of third
persons, whether they be third persons of Lessee or agents or employees of
Lessee, caused by, arising from, or happening in connection with Lessee's use
or occupancy of the Premises or Lessee's use of any equipment, facilities, or
property in, on, or
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adjacent to the Premises or the Building. Not-withstanding anything else in
this Paragraph 8, if any of the damages are caused by the gross negligence or
willful misconduct of Lessor, its agents, employees, guests, or invitees,
Lessor is liable and Lessee does not indemnify Lessor for claims related to
such acts or omissions.
9. Additional Areas. It is expressly understood and agreed by
Lessee that if the Lessor shall furnish any automobile parking spaces, common
areas, or any other facilities, equipment or appliances outside of and in
addition to the Lessee's Premises, the same shall be deemed gratuitously
furnished by the Lessor and that if any person shall use the same, such person
does so at his or her own risk and upon the express understanding and
stipulation that the Lessor shall not be liable for any loss of property
through theft, casualty, or otherwise, or for any damage or injury whatsoever
to person or property. Maintenance of such additional areas for normal wear
and tear shall be the responsibility of Lessor, but Lessee agrees to be
responsible for any additional damage caused by its agents, employees, guests
or invitees.
10. Additional Rent.
10.1 Utilities. Whenever possible, all utility services
to the leased premises, including, without limitation, gas, electricity,
telecommunications, water, and sewer, shall be contracted directly in the name
of the Lessee, and the Lessee shall be solely responsible for the direct
payment of all utility fees and service charges for such utilities. If, for
any reason, it is not possible for the Lessee to contract directly for any
utility service, and the cost of such service is billed to the Lessor, the
Lessee shall pay Lessor additional annual rent equal to the full amount of such
utility fees and service charges paid by Lessor. Where such a utility service
is metered by a common meter, the Lessor shall apportion the total cost among
the tenants serviced by such meter, taking into account the area leased, type
of business conducted, and any other factors deemed relevant by the Lessor.
Such apportionment shall be made in the Lessor's sole, good faith judgment, and
shall be final and binding upon Lessee.
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10.2 Operating Expenses. In addition, the Lessee shall
pay Lessor additional annual rent equal to the cost of all operating expenses
for the Building multiplied by 100% percent. Operating expenses shall be
limited to: (a) taxes, assessments and governmental taxes, whether federal,
state, county or municipal, which are levied on or charged against the Premises
and any other taxes and assessments attributable to the Premises and its
operation excluding, however, federal and state income taxes; (b) all insurance
premiums paid by the Lessor attributable to the Premises; (c) all expenses
incurred in connection with the maintenance, operation, and repair of the
Building, associated equipment, adjacent walks, parking areas, and landscaped
areas; (d) Building and cleaning supplies and materials; (e) the cost of all
charges for cleaning, maintenance and service contracts, trash collection, snow
removal, and other services with independent contractors; (f) the reasonable
amortization of any capital improvements which are made or installed by Lessor
after the commencement of this Lease for the purpose of saving labor or
otherwise reducing applicable operating expenses; (g) all other costs and
expenses reasonably necessary in the operation and maintenance of a first class
Building; (h) the cost of all common area utility and service charges for the
Premises, including, without limitation, gas, electricity, water, and sewer.
Operating costs shall not include the cost of any work or service performed
specially by the Lessor for any lessee at the cost of such lessee, damages
caused by Lessor's gross negligence or willful misconduct, depreciation (except
as provided in "f" above), or financing costs (including interest or principal
amortization) paid by Lessor.
10.3 Payment of Additional Rent. Such additional rent
shall be paid at monthly intervals in advance within fifteen days after receipt
of statements of charges and/or estimated charges from Landlord. At the end of
each calendar year, or, at Lessor's option, at any other more frequent
interval, Lessor shall provide an accounting of the utility fees and service
charges for the leased premises paid by Lessor, if any, total operating
expenses for the Building, Lessee's share of operating expenses, and Lessee's
payments toward such amounts during the year or
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interval. During the thirty-day period following such accounting, Lessor shall
pay any excess to the Lessee if payments exceed expenses, and the Lessee shall
pay additional rent to Lessor if expenses exceed payments.
11. Personal Property Taxes. The Lessee shall pay and discharge
all personal property taxes which are levied, assessed, imposed or charged upon
its personal property and inventory or which arise out of or result from the
activities carried on by the Lessee at or upon the leased Premises.
12. Insurance. The Lessee shall, at its expense, acquire a
general liability insurance policy effective as of the date of this Lease
Agreement. Said policy shall be acquired from a company qualified and
permitted to do business in the State of Colorado. Said policy shall be in the
minimum total amounts of $1,000,000.00 combined single limits for bodily injury
and property damage. Said policy shall be maintained in full force and effect
during the entire lease term and shall contain a provision prohibiting
cancellation thereof without at least ten (10) days' notice to the Lessor, who
shall be a named insured. A copy of the Policy and Current Declaration of
coverage shall be provided to the Lessor within ten (10) days after
commencement of the lease and each renewal date.
The Lessor shall maintain on the Building and other improvements (but
not Lessee's personal property, fixtures, equipment, and tenant improvements)
in which the Premises are located a policy of standard fire and extended
coverage insurance to the extent of at least ninety percent (90%) of full
replacement value. The insurance policy shall be issued in the names of Lessor
and Lessor's lender, as their interest appear, and any proceeds shall be made
payable to Lessor. The cost of such insurance shall be passed on to the Lessee
as part of the operating expenses for the Building.
The parties release each other, and their respective authorized
representatives, from any claims for damages arising out of or incident to the
perils insured against or under the insurance
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policies carried by the parties and in force at the time of such damage,
whether due to the negligence of Lessor or Lessee or their agents, employees,
or invitees. The parties shall, upon obtaining the policies of insurance
required herein, give notice to the insurance carrier or carriers that the
foregoing mutual waiver of subrogation is contained in this Agreement.
13. Indemnification. The Lessee agrees to indemnify and hold
the Lessor harmless from any claims, damages, liens, or judgments that may be
filed, entered or asserted against it by virtue of the Lessee's use of the
Premises or by virtue of any act of the Lessee, its agents, servants or
employees.
14. Condemnation. If all or a substantial part of the Premises
is taken or condemned for a public or quasi-public use (or any transfer is made
in lieu thereof), and the part thereof which remains is not suitable for the
Lessee's business use, then this Lease shall, upon written notice from Lessee,
terminate as of the date that title is taken by the condemnor. Lessor shall,
after the taking of all or any portion of the Premises, provide the same amount
of square feet of usable building space for Lessee's operations in the
immediate vicinity of the Premises, and, in the event Lessor cannot do so,
Lessee shall have the right to terminate this Lease, but shall not receive
payment in any form of compensation. All compensation awarded upon any such
condemnation or taking shall go to the Lessor except that the Lessee shall be
entitled to that part of the total award, if any, specifically allocated to
the value of the Lessee's fixtures so taken.
15. Release of Liens. Lessee expressly covenants and agrees
that it will, during the term hereof, promptly remove or release, by the
posting of a bond or otherwise, as required or permitted by law, any lien
attached to or upon the Premises or any portion thereof by reason of any act or
omission on the part of the Lessee, and it hereby expressly agrees to save and
hold harmless the Lessor from or against any such lien or claim of lien. In
the event any such lien does attach, or any claim of lien is made against the
Premises, which may be occasioned by any act or omission upon the part of the
Lessee, and it is not thus removed or released within thirty (30)
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days after notice thereof, Lessor, in its sole discretion, (but nothing herein
contained shall be construed as requiring it so to do) may pay and discharge
the said lien and relieve the said demised Premises from any such lien, and the
Lessee agrees to pay and reimburse Lessor upon demand for or on account of any
expense which may be incurred by Lessor in connection with such lien of claim,
including reasonable attorney's fees.
16. Repair and Maintenance. The Lessor shall be responsible for
all repair, maintenance, and replacements required to maintain and keep the
Building in good condition and shall receive reimbursement of such costs as
part of the operating expenses for the Building; provided, however, that the
Lessee shall be wholly responsible for replacement of cracked or broken glass,
replacement of all incandescent and fluorescent lights and maintenance of all
light fixtures on the Premises and all damage to the Building resulting from
acts or omissions of the Lessee, its agents, employees or invitees. The Lessee
shall not be responsible for maintenance or repair resulting from acts or
omissions of other tenants, their agents, employees, or invitees.
17. Compliance With Laws and Regulation. The Lessee shall
comply with all laws and regulations of governmental entities, agencies or
authorities having jurisdiction over the Premises and the uses made therein.
The Lessee shall not permit a nuisance to exist on the leased Premises.
18. Payments to Lessor. Until notice to the contrary is given
to the Lessee, all payments to be made to the Lessor hereunder shall be made by
delivering the same at the address of the Lessor as set forth in Paragraph 19
hereof so that payment is received by the Lessor on or before the due date.
19. Notice. Whenever notice is required to be given to a party
hereunder, said notice shall be in writing and shall be given to the party
entitled thereto by delivering a copy thereof to the party entitled thereto or
by mailing a copy thereof to the party entitled thereto by registered or
certified mail, return receipt requested. If such notice is given by
delivering a copy to the person
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entitled thereto, said notice shall be complete and effective on the date of
such delivery. If such notice is given by mailing a copy to the person
entitled thereto, said notice shall be complete and effective on the date it is
received by the following persons at the addresses indicated:
Lessor: Flatiron Park Company
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Lessee: V. P. of Finance
SpectraLink, Corporation
0000 Xxxxxxx Xxxxxx Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
20. Surrender of Premises. The Lessee shall, upon the
termination of this lease, whether said termination occurs due to the
expiration of the lease term or otherwise, surrender the Premises in as good a
condition as when entered upon, subject only to ordinary wear and tear. Upon
the surrender of the Premises, the Lessee shall, if it is not then in default
hereunder, have the right to remove its inventory, furnishings, equipment and
trade fixtures from the leased Premises provided that it repair all damage done
to the leased Premises in accomplishing said removal so as to leave the
Premises in the same condition as when entered upon, ordinary wear and tear
excepted.
21. This paragraph intentionally left blank.
22. Premises Damages or Destroyed. In the event the Premises
are damaged or rendered wholly or partially unusable by fire, flood, windstorm,
explosion or any other casualty, then the rights and obligations of the parties
shall be as follows:
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Lessor shall a) within ten days of the Casualty give Lessee a good
faith estimate of the time to repair or replace the damaged Premises, b) and if
reasonably possible complete the repair or replace said premises within 120
from date of the damage. In the event the repairs or replacements will not be
or are not completed within 120 days, the Lessee may at its option terminate
this lease, and all the Lessee's obligation for further rent payments shall
cease as of the date of said termination. Rent shall not be abated unless more
than 20 percent of the interior floor space in the Premises is rendered
untenantable and the total repairs are not completed in 30 days, in which event
there shall be an abatement of rent from the casualty date in proportion to
the portion of the interior floor space rendered untenantable. In no event
shall there be an abatement of rent if the damage is caused by any casualty on
the Premises as a result of acts or omissions of the Lessee.
The parties recognize that the Lessee on most occasions will be
storing valuable materials and equipment within the Premises. In the event the
Premises are so damaged by such casualty that Lessee's property would be
endangered by exposure to the elements, and in the further event that Lessee
desires to complete emergency repairs, the restoration of any alterations to
the Premises occasioned by emergency repairs shall also be borne by the Lessee.
Lessor shall have no obligation to make such emergency repairs nor any
liability for damage directly or indirectly caused to Lessee's property by such
casualty.
23. Default and Abandonment. If the Lessee defaults in any of
its obligations hereunder and fails to correct said default within ten days
after written notice thereof from the Lessor, or, if such breach is not in
payment of money, has not within said ten-day period of time commenced
substantial efforts to cure said breach and thereafter continued its efforts to
cure said breach with due diligence, or, if the Lessee abandons the Premises,
which shall be conclusively deemed to occur if Lessee makes no use of the
Premises for fifteen consecutive days during the term of this lease (except in
the case of causality to this Premises or any other reason not within
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the control of Lessee, in which case Lessor has no such right), then the Lessor
shall have the right to declare this agreement terminated and to re-enter and
take immediate possession of the demised Premises, or, without in any way being
obligated so to do, the Lessor may elect to retake possession of said Premises
and rent the same for such rent and pursuant to such conditions as the Lessor
believes best, making such changes and repairs as may be required, and giving
credit for the amount of rent so received less all expenses for reletting,
advertising, cleaning, removal or storage of Lessee's property, and repairs,
and in such event, said Lessee shall be liable for the balance of the rent
herein reserved until the expiration of the term of this lease.
The Lessee shall pay unto the Lessor additional rent for late rent
payments as to all rental payments not made on or before the fifth (5th) day of
the month in which they are due, said additional rent to be five percent (5%)
of the rent payment so delinquent for each month or fraction thereof that such
payment is late; however the Lessor shall give Lessee 24 hours notice before
imposing said late fee. The parties agree that this late charge is reasonable
liquidated damages taking into account the time spent by Lessor, its agents and
employees because of such late rent payments, processing and accounting
charges, and late charges that may be imposed on Lessor under the trust deed
covering the Premises.
In the event of a default by the Lessee in the performance of any of
its duties and obligations hereunder, the Lessee shall pay all costs incurred
by the Lessor in the enforcement of the provisions of this lease (including
this provision) as against said Lessee, said costs to include reasonable
attorneys' fees whether or not litigation is commenced.
24. Holding Over. If Lessee remains in possession of the
Premises after the expiration of this lease and without the execution of a new
lease, it shall be deemed to be occupying said Premises as Lessee from month to
month at a rent equal to one and one half times the monthly rental being paid
by it at the time of said expiration of lease.
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25. Bankruptcy. If at any time during the term hereof the
Lessee shall file a voluntary petition in Bankruptcy, or if an involuntary
petition in Bankruptcy shall be filed against Lessee if the same shall not be
dismissed within sixty (60) days, or if the Lessee makes an assignment for the
benefit of creditors, or if a receiver shall be appointed for Lessee, then the
Lessor may, at its option, in any of such events, immediately take possession
of the demised Premises and terminate this lease. Upon such termination, all
installments of rent earned to the date of termination and unpaid shall at once
become due and payable, and in addition thereto Lessor shall have all rights
provided by the Bankruptcy Code relative to the proof of claims on an
anticipatory breach on an executory contract.
26. Rent Regulations. If the rent to be paid by the Lessee
to the Lessor hereunder, whether pursuant to Paragraph 2 or Paragraph 24, is
subject to regulation by law, then the rent to be so paid shall be the maximum
rental permitted by said laws but in no event in excess of the rent provided
for or determined in accordance with the applicable provisions of this Lease
Agreement.
27. Meaning of Words. Unless the context clearly indicates a
contrary intention, all words used herein in one gender shall extend to and
include the other gender; all words in the singular number shall extend to and
include the plural; and all words used in the plural number shall extend to and
include the singular.
28. Remedies Not Exclusive. It is agreed that each and every one
of the rights, remedies and benefits provided by this lease shall be
cumulative, and shall not be exclusive of any other of said rights, remedies
and benefits, or of any other rights, remedies and benefits allowed by law.
29. Waiver. One or more waivers of any covenant or condition by
the Lessor shall not be construed as a waiver of a further breach of the same.
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30. Lease Binding. The covenants, conditions and agreements
contained in this lease shall bind and inure to the benefit of the Lessor and
Lessee and their respective heirs, personal representatives and successors, and
except as otherwise provided in this lease, their assigns.
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31. Rent Schedule.
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May 1, 1997 through June 30, 1997 $0.00 per month
July 1, 1997 through June 30, 1998 $43,225.00 per month
July 1, 1998 through June 30, 1999 $44,954.00 per month
July 1, 1999 through June 30, 2000 $46,752.00 per month
July 1, 2000 through June 30, 2001 $48,622.00 per month
July 1, 2001 through June 30, 2002 $50,567.00 per month
July 1, 2002 through June 30, 2003 $52,590.00 per month
July 1, 2003 through June 30, 2004 $54,693.00 per month
July 1, 2004 through June 30, 2005 $56,881.00 per month
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32. Quiet Enjoyment. Subject to the terms and conditions of
this lease, Lessor covenants that so long as the rental is current for the
demised Premises and there is no default in any of the covenants to be
performed by Lessee, the Lessee shall peaceably and quietly hold and enjoy the
demised Premises for the entire term of this lease and any renewals thereof.
33. Subordination. This lease is and shall be subordinate to any
mortgage, deed of trust, or other security agreement now of record or recorded
after the date of this lease affecting the Premises. Such subordination is
effective without any further act of Lessee. Lessee shall from time to time on
request from Lessor execute and deliver any documents that may be required by a
lender to effectuate any subordination. If Lessee fails to execute and deliver
such documents, Lessee irrevocably constitutes and appoints Lessor as Lessee's
special attorney-in-fact to execute and deliver such documents on Lessee's
behalf. Lessor will use reasonable effort to get a non-disturbance agreement
from applicable lenders.
34. Security Deposit. On execution of this lease, Lessee shall
deposit with Lessor $43,225.00 to be held by Lessor without liability for
interest, as a security deposit for the performance by Lessee of all its
obligations under this lease. If Lessee is in default, Lessor can use the
security deposit, or any portion of it, to cure the default or to compensate
Lessor for all damage sustained by Lessor resulting from Lessee's default.
Lessee shall, within fifteen (15) days of demand pay such amount to Lessor as
is necessary to restore the security deposit to the amount set forth above. At
the expiration or termination of this lease, Lessor shall return to Lessee that
portion of the security deposit remaining after application of such amounts as
are necessary to compensate Lessor for Lessee's defaults, if any.
35. Additional Rent and Interest. Any monetary obligations of
Lessee to Lessor under the terms of this lease shall be deemed to be rent. Any
amount due to Lessor under any of the provisions of this lease shall bear
interest from the date due at fifteen (15%) percent per annum,
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provided, however, that interest shall not be payable on late charges nor any
amounts upon which late charges are paid. Payment of such interest shall not
cure or excuse any default by Lessee.
36. 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.
37. Prohibition on Animals. Lessee, its employees, authorized
representatives, and invitees shall not permit any access to or use of the
Premises or any part of the Premises by any animals, whether domestic or
agricultural. Any such use shall constitute a default under this lease, and
Lessee shall be fully responsible for any damages caused thereby.
38. Environmental Matters.
38.1 Definitions.
38.1.1 Hazardous Material. Hazardous Material means any substance:
(a) which is or becomes defined as a "hazardous material,"
"hazardous waste," "hazardous substance," "regulated substance," pollutant
or contaminant under any federal, state or local statute, regulation, rule,
order, or ordinance or amendments thereto; or
(b) the presence of which on the Premises causes or threatens
to cause a nuisance upon the Premises or to adjacent properties or poses or
threatens to pose a hazard to the health or safety of persons on or about the
Premises or requires investigation or remediation under any federal, state or
local statute, regulation, rule, order, or ordinance or amendments thereto.
38.1.2 Environmental Requirements. Environmental Requirements
means all applicable present and future statutes, regulations, rules,
ordinances, codes, licenses, permits, orders, approvals, plans, authorization,
concessions, franchises, and similar items, of all governmental agencies,
departments, commissions, boards, bureaus, or instrumentalities, of the United
States, states and political subdivisions thereof and all applicable judicial,
administrative, and regulatory decrees, judgments, and orders relating to the
protection of human health or the environment.
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38.1.3 Environmental Damages. Environmental Damages means all
claims, judgments, injuries, damages (including without limitation damages for
diminution in the value of the Premises and adjoining property and for the loss
of business from the Premises and adjoining property), losses, penalties,
fines, liabilities (including strict liability), encumbrances, liens, costs,
and expenses of investigation and defense of any claim, and of any good faith
settlement of judgment, of whatever kind or nature, contingent or otherwise,
matured or unmatured, foreseeable or unforeseeable, including without
limitation reasonable attorneys' fees and disbursements and consultants' fees,
any of which are incurred at any time as a result of the existence of
"Hazardous Material" upon, about, beneath the Premises or migrating or
threatening to migrate to or from the Premises or the existence of a violation
of "Environmental Requirements" pertaining to the Premises.
38.2 Obligation To Indemnify, Defend And Hold Harmless.
38.2.1 Lessee, its successors, assigns and guarantors, agree to
indemnify, defend, reimburse and hold harmless the following persons from and
against any and all "Environmental Damages" arising from activities of Lessee
or its employees, agents, or invitees which (a) result in the presence of
"Hazardous Materials" upon, about or beneath the Premises or migrating to or
from the Premises, or (b) result in the violation of any "Environmental
Requirements" pertaining to the Premises and the activities thereon:
(i) Lessor;
(ii) any other person who acquires a portion of the Premises
in any manner, including but not limited to through purchase, at a foreclosure
sale or otherwise through the exercise of the rights and remedies of Lessor
under this Agreement; and
(iii) the directors, officers, shareholders, employees,
partners, agents, contractors, subcontractors, experts, licensees, affiliates,
lessees, mortgagees, trustees, heirs, devisees, successors, assigns and
invitees of such persons.
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38.2.2 This obligation shall include, but not be limited to, the
burden and expense of defending all claims, suits and administrative
proceedings (with counsel reasonably approved by the indemnified parties), and
conducting all negotiations of any description, and paying and discharging,
when and as the same become due, any and all judgments, penalties or other sums
due against such indemnified persons. Lessee, at its sole expense, may employ
additional counsel of its choice to associate with counsel representing Lessor.
38.2.3 The obligations of Lessee in this section shall survive the
expiration or termination of this Lease.
38.3 Notification.
38.3.1 If Lessee shall become aware of or receive notice or other
communication concerning any actual, alleged, suspected or threatened violation
of "Environmental Requirements," or liability of Lessee for "Environmental
Damages" in connection with the Premises or past or present activities of any
person thereon, or that any representation set forth in this Agreement is not
or is no longer accurate, then Lessee shall deliver to Lessor, within ten days
of the receipt of such notice, or communication or correcting information by
Lessee, a written description of such information or condition, together with
copies of any documents evidencing same.
38.4 Negative Covenants.
38.4.1 No Hazardous Material on Premises. Except in strict
compliance with all Environmental Requirements, Lessee shall not cause, permit
or suffer any "Hazardous Material" to be brought upon, treated, kept, stored,
disposed of, discharged, released, produced, manufactured, generated, refined
or used upon, about or beneath the Premises or any portion thereof by Lessee,
its agents, employees, contractors, tenants or invitees, on any other person
without prior written consent of Lessor.
38.4.2 No Violations of Environmental Requirements.
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Lessee shall not cause, permit or suffer the existence or the commission by
Lessee, its agents, employees, contractors, or invitees, or by any other person
of a violation of any "Environmental Requirements" upon, about or beneath the
Premises or any portion thereof.
38.5 Right To Inspect.
38.5.1 Lessor shall have the right in its sole and
absolute discretion, but not the duty, to enter and conduct an inspection of
the Premises at any reasonable time to determine whether Lessee is complying
with the terms of this Agreement, including but not limited to the compliance
of the Premises and the activities thereon with "Environmental Requirements"
and the existence of "Environmental Damages." Lessee hereby grants to Lessor
the right to enter the Premises and to perform such tests on the Premises as
are reasonably necessary in the opinion of Lessor to conduct such reviews and
investigations. Lessor shall use its best efforts to minimize interference
with the business of Lessee but Lessor shall not be liable for any interference
caused thereby.
38.6 Right To Remediate.
38.6.1 Should Lessee fail to perform or observe any of its
obligations or agreements pertaining to "Hazardous Materials" or "Environmental
Requirements," then Lessor shall have the right, but not the duty, without
limitation upon any of the rights of Lessor pursuant to this Agreement, to
enter the Premises personally or through its agents, consultants or contractors
and perform the same. Lessee agrees to indemnify Lessor for the costs thereof
and liabilities therefrom as set forth in Section 38.2.
39. Monitoring Equipment. Should equipment for monitoring fire
systems and/or security systems be deemed necessary by the Lessee or be
required for the Premises by Federal, State, or Local Governing Agencies
because of Lessee's equipment, the nature of Lessee's business, or Lessee's
modification of the Premises, Lessee shall be responsible for installation of
such monitoring system, for any required building permits, and monthly
monitoring fees. Should such
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monitoring systems be otherwise required by Federal, State, or Local Governing
Agencies, Lessor shall be responsible for installation of such monitoring
systems, but Lessee shall pay for monthly monitoring fees as additional rent.
40. Force Majeure. In the event that Lessor shall be delayed or
hindered in, or prevented from, the performance of any act required hereunder
by reason of strikes, lock-outs, labor troubles, inability to procure
materials, the inability to obtain building inspections, approvals, or permits,
stop work orders, the inability to obtain a certificate of occupancy, failure
of power or unavailability of utilities, riots, insurrection, war or other
reason of like nature not the fault of Lessor or not within its control, the
performance of such acts shall be excused for the period of delay, and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay (including extension of both the
commencement and termination dates of this Lease); provided, however, that if
Lessee is not in any way responsible for the delay and does not have use or
occupancy of the Premises during the period of delay, the rent payable
hereunder shall be abated for such period of delay.
41. Other. Exhibit "A" shall additionally serve as an exhibit of
the tenant improvements to be made to the Premises.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
this date and year above written.
LESSOR: Flatiron Park Company
BY: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
LESSEE: SpectraLink, Corporation
BY: /s/ Xxxxxxx X. Xxxxxxxxx
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ITS: Vice President
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