EXHIBIT 10.4
LEASE AGREEMENT
THIS LEASE AGREEMENT is entered into this 1st day of June, 1995 between
Cottonwood Land and Farms Ltd., hereinafter called "Lessor," and Carrier Access
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
a portion of 0000 Xxxxx Xxxxxxx, 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 January, 1996 and ending at
11:59 P.M. on the 31st day of December, 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
1
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 the nature of the violation, to promptly rectify such
violation. The Lessee's failure to give 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.
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 a communication software/hard xxxx development business. Lessee
acknowledges that its use of the Premises is subject to all applicable zoning,
municipal, county and state laws, ordinances and
2
regulations governing and regulating the use of the Premises, and further
subject to any covenants or restrictions of record (a copy of such covenants are
attached as Exhibit "B" and incorporated by reference). 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 permission of Lessor.
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 or for making repairs on the Premises which the
Lessor may desire to make. 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.
3
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 fighting; (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; 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.
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,
4
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 adjacent to the Premises or the
Building.
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.
5
10. Additional Rent. The Lessee shall pay Lessor additional annual rent
equal to the cost of all operating expenses for the Building multiplied by 65%
percent. Operating expenses shall include, but not 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
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. Such additional rent shall be paid at monthly intervals in
advance upon receipt of statements of 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 total operating
6
expenses for the building, Lessee's share of such amount, and Lessee's payments
toward such amount during the year or 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
7
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 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 any part of the Premises are taken or condemned for a
public or quasi-public use (or any transfer is made in lieu thereof), and a part
thereof remains which is suitable for the Lessee's business use, then, this
lease shall, as to the part so taken, and only as to such part,. terminate as of
the date that title is taken by the condemnor and the rent payable hereunder
shall be adjusted so that the Lessee shall be required to pay for the remainder
of the term only such percentage of such rental as the remaining usable square
footage of the building included in the
8
Premises bears to the original total square footage of such building. 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 released within thirty (30) 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.
9
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
entitled thereto, said notice shall be complete and
10
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 deposited in the mail to the following persons at the
addresses indicated:
Lessor: Cottonwood Land and Farms Ltd.
c/o Flatiron Park Company
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Lessee: Carrier Access Corporation
0000 Xxxxx Xxxxxxx
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.
11
21. Removal of Lessee's Property. Lessee hereby grants Lessor a security
interest in all its inventory, equipment, furnishings, and trade fixtures
located on the Premises to secure Lessee's obligations hereunder. If Lessee
defaults in any payment obligation of this lease, or if Lessee fails to remove
such property from the Premises within five days after termination of this
lease, or if Lessee abandons the Premises as defined in Paragraph 23, then
Lessor shall have the right and option to remove such property from the Premises
and exercise all rights granted by Article 9 of the Colorado Uniform Commercial
Code, without any liability for damage or injury caused to the property by any
removal, restoration of Premises, or storage, even If Lessor is negligent.
The Lessee shall be responsible for the cost incurred in said removal,
storage and restoration, including any reasonable attorney's fees. The Lessor
shall give notice of removal to the Lessee in the manner provided for in this
agreement and the Lessee shall have three (3) days after the effective date of
such notice to recover such property by paying all monies owed and fulfilling
all other obligations hereunder. If the Lessee does not take such actions,
Lessor may retain such property as its sole and separate property or may sell
such property in any commercially reasonable fashion and apply the proceeds to
Lessee's obligations hereunder.
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:
12
Lessor shall promptly repair or replace the damaged Premises, and if
reasonably possible the repair or replacement shall be completed within 180 days
from date of the damage. In the event the repairs or replacements are not
completed within 180 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 30 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 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 three days after
written notice thereof from the Lessor, or, if such breach is not in payment of
money, has not within said three-day period of time commenced
13
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 five consecutive days during the term of this lease, 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 one and three quarter (1 3/4%)
percent of the rent payment so delinquent for each month or fraction thereof
that such payment is late. 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
14
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 two times the monthly rental being paid by it at the
time of said expiration of lease.
25. Bankruptcy. If at any time during the term hereof proceedings in
Bankruptcy shall be instituted by or against the Lessee which result in an
adjudication of bankruptcy as to the Lessee, or if the Lessee makes an
assignment for the benefit of creditors, then the Lessor may, at its option, in
either or 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 laws 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.
15
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.
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.
16
31. Rent Schedule.
January 1, 1996 through March 31, 1996 $0.00 per month
April 1, 1996 through December 31, 1996 $20,583.00 per month
January 1, 1997 through December 31, 1997 $20,583.00 per month
January 1, 1998 through December 31, 1998 $21,406.00 per month
January 1, 1999 through December 31, 1999 $22,262.00 per month
January 1, 2000 through December 31, 2000 $23,376.00 per month
January 1,2001 through December 31, 2001 $24,544.00 per month
January 1, 2002 through December 31, 2002 $25,772.00 per month
January 1, 2003 through December 31, 2003 $27,060.00 per month
January 1, 2004 through December 31, 2004 $28,413.00 per month
January 1, 2005 through December 31, 2005 $29,834.00 per month
17
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
encumbrance 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.
34. Security Deposit. On execution of this lease, Lessee shall deposit with
Lessor $644.00 (already held by Lessor), 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 immediately on 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.
18
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 twenty-one (21%) percent per annum, 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 Section I 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
19
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.
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.
20
38.2 Section II 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.
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.
21
38.2.3 The obligations of Lessee in this section shall survive the
expiration or termination of this Lease.
38.3 Section III 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 Section IV 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. 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.
22
38.5 Section V 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 Section VI 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 11.
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
23
responsible for installation of such monitoring system, for any required
building permits, and monthly monitoring fees. Should such 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 Other. Lessee shall have a right of first refusal on adjoining space. Lessee
must respond, in writing, within three (3) business days of notification by
Lessor of the availability of an adjoining space, of its intent to exercises its
right of first refusal. Failure to notify Lessor within the specific time frame
shall result in Lessee loosing its first right of refusal.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals this
date and year above written.
LESSOR: Cottonwood Land and Farms, Ltd.
BY: /s/ signature illegible
-------------------------------
LESSEE: Carrier Access Corporation
BY: /s/ Xxxxx Xxxx Xxxxxx
-------------------------------
ITS: SECTY/TREASURER
-------------------------------
24
STATE OF COLORADO)
)SS
COUNTY OF BOULDER)
The foregoing instrument was acknowledged before me by
XXXXX X. XXXXXX , of COTTONWOOD LAND & FARMS, LTD. , Lessor,
----------------------- ------------------------------
on the 22ND day of JUNE , 1995.
-------- -------------------- -
Witness my Hand and official Seal.
My commission expires: JUNE 2ND, 1998
--------------
Notary Public: /s/ signature illegible
------------------------
STATE OF COLORADO)
-------- )SS
COUNTY OF BOULDER)
-------
The foregoing instrument was acknowledged before me by
XXXXX XXXX XXXXXX , of CARRIER ACCESS CORPORATION , Lessee,
----------------------- ---------------------------
on the 9 day of JUNE , 1995.
---- -------------------------- -
Witness my Hand and official Seal.
My Commission expires: JUNE 2, 1998
------------
Notary Public: /s/ signature illegible
-----------------------
EXHIBIT "A" 1st floor
[FLOORPLAN APPEARS HERE]
