EXHIBIT 10.15
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LEASE
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Between
2545 Central, LLC
and
SpectraLink Corporation
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SUMMARY OF BASIC LEASE TERMS
1. Tenant: SpectraLink Corporation
(a) Tenant's entity and jurisdiction: A Delaware Corporation
(b) Tenant's federal taxpayer identification number: 00-0000000
2. Building Address: 0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Type: Multi-Tenant
3. Demised Premises:
(a) Approx. Total Rentable Square Footage: 7,483+/-
(b) Suite Number: 110
4. Initial Lease Term:
(a) Period: 5 years 3 months
(b) Commencement Date: October 1, 2001
(c) Expiration Date: December 31, 2006
5. Basic Rent:
Rent Schedule:
October 1, 2001 to September 30, 2002 $9,821.00 per month
October 1, 2002 to September 30, 2003 $10,313.00 per month
October 1, 2003 to September 30, 2004 $10,828.00 per month
October 1, 2004 to September 30, 2005 $11,370.00 per month
October 1, 2005 to September 30, 2006 $11,938.00 per month
October 1, 2006 to December 31, 2006 $12,535.00 per month
6. Additional Rent
Tenant's Pro Rata Share (for Additional Rent): 50%
7. Security Deposit Amount: $9,821.00
8. Place for Payments:
2545 Central, LLC.
c/o Flatiron Park Company
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Landlord Initials /s/ RH
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Tenant Initials /s/ NH
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9. Place for Notices:
2545 Central, LLC. with a copy to: Xxxxxxxxxx Black and
c/o Flatiron Park Company. Xxxx, LLC
0000 Xxxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000 X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx
and Xxxxxxxx X. Xxxxx
SpectraLink Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
10. Permitted Use(s) by Tenant: Electronic research and development and
manufacturing business.
11. Broker(s): None
12. Utilities: Gas will be billed direct to tenant. There is currently one
electric meter for the building. Electric will be reapportioned to tenant until
such time the electrical service to the building is restored to a multi-metered
building and the first floor has its own electrical meters. Once separate
electric meters are in place, to service the first floor, electrical utilities
will be billed direct to tenant. It is anticipated the new meters, for the first
floor, will be in place on or about November 30, 2001.
13. Condition Precedent: This Lease is conditioned upon Landlord's entering
into a termination of lease and release on terms and conditions satisfactory to
Landlord with Carrier Access Corporation, the existing tenant in the Premises.
Landlord Initials /s/ RH
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Tenant Initials /s/ NH
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LEASE
This Lease is made this 20th day of September 2001, between 2545
Central, LLC a Limited Liability Company ("Landlord"), whose address is c/o
Flatiron Park Company, 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and
SpectraLink Corporation a Delaware Corporation ("Tenant"), whose address is 0000
Xxxxxxx Xxxxxx.
ARTICLE I
GENERAL
1.1 Consideration. Landlord enters into this Lease in consideration of
the payment by Tenant of the Rents herein reserved and the keeping, observance
add performance by Tenant of the covenants and agreements of Tenant herein
contained.
1.2 Exhibits and Addenda to Lease. The Exhibits and Addenda listed
below shall be attached to this Lease and be deemed incorporated in this Lease
by this reference. In the event of any inconsistency or conflict between such
Exhibits and Addenda and the terms and provisions of this Lease, the terms and
provisions of the Exhibits and Addenda shall control. The Attachments, Exhibits
and Addenda to this Lease are:
Summary of Basic Lease Terms
Exhibit A Legal Description of Land
Exhibit B Location of Demised Premises within Building
Exhibit C Notice of Non-Liability for Mechanics' Liens
Exhibit D Form of Subordination, Non-Disturbance and Attornment Agreement
Exhibit E Form of Sublease, Assumption and Consent Agreement
Exhibit F Form of Assignment, Assumption and Consent Agreement
Exhibit G Form of Estoppel Certificate
Exhibit H Declaration of Protective Covenants
ARTICLE 2
DEFINITIONS; DEMISE OF PREMISES
2.1 Demise. Subject to the provisions, covenants and agreements herein
contained, Landlord hereby leases and demises to Tenant, and Tenant hereby
leases from Landlord, the Demised Premises as hereinafter defined, for the
Lease Term as hereinafter defined, subject to existing covenants, conditions,
restrictions, easements and encumbrances affecting the same.
2.2 Demised Premises. The "Demised Premises" shall mean the space to be
occupied by Tenant as depicted on Exhibit B attached hereto. The Demised
Premises are within the Building which is located on the Land, as the terms
"Building" and "Land" are hereinafter defined.
2.3 Square Footage and Address. The Demised Premises contains
approximately the rentable floor area set forth in the Summary of Basic Lease
Terms. The address of the Demised Premises is the address set forth in the
Summary of Basic Lease Terms.
2.4 Land. "Land" shall mean the parcel of real property more
particularly described in Exhibit A attached hereto, as the same may be
replatted, resubdivided or adjusted from time to time by Landlord in its sole
discretion.
2.5 Building. "Building" shall mean the building or buildings
constructed on the Land, as the same may be expanded, remodeled, reconstructed
or otherwise modified from time to time by Landlord in its sole discretion,
currently containing approximately the number of square feet of interior floor
area set forth on the Summary of Basic Lease Terms. If there is more than one
building constructed on the Land, the term "Building" shall mean collectively
all buildings constructed upon the Land.
2.6 Improvements. "Improvements" shall mean the Building, the Parking
Area as hereinafter defined, and all other fixtures and improvements on the
land, including landscaping thereon.
2.7 Property. "Property" shall mean the Land, the Building and the
Improvements and any fixtures and personal property used in operation and
maintenance of the Land, Building and Improvements other than fixtures and
personal property of Tenant and other users of space in the Building.
2.8 Common Facilities. "Common Facilities" shall mean all of the
Property except (a) the Demised Premises and (b) the other premises in the
Building leased or held for lease to other tenants that is intended to be used
in common by Tenant and other tenants. Common Facilities shall include, without
limitation, the Parking Area and any walks, driveways, and, if applicable, lobby
areas, halls, stairs, elevators, restrooms, utility rooms, and janitorial
closets designed for common use of Tenant and other users of space in the
Building.
2.9 Parking Area. "Parking Area" shall mean that portion of the Land
which is or is to be paved and otherwise improved or designated unimproved land
for the parking of motor vehicles.
2.10 Use of Common Facilities and Parking Area. Tenant is hereby
granted the non-exclusive right and license to use, in common with others
entitled to such use, the Common Facilities, as they from time to time exist,
subject to the rights of Landlord reserved herein. Tenant shall not interfere,
at any time, with the rights of landlord and others entitled to use any part of
the Common Facilities, and shall not store, either permanently or temporarily,
any materials, supplies or equipment on the Common Facilities. Landlord shall
have the right, at any time, to change, reduce or otherwise alter the Common
Facilities, in its sole discretion and without compensation to Tenant; provided,
however, Landlord shall provide reasonable parking in the Parking Areas, loading
areas and access to the Demised Premises to Tenant. Tenant covenants and agrees
not to make excessive use of the Parking Area. Landlord shall have the right at
any time to assign spaces in the Parking Area to individual tenants, in its sole
discretion, provided that Landlord shall provide a reasonable number of spaces
for Tenant. Landlord shall not be responsible for any injuries to any person nor
any damage to any automobile, vehicle or other property which occurs in or about
the Parking Area. Tenant shall not park nor permit the parking of any vehicles
in the Parking Area overnight without Landlord's prior, written permission.
2.11 Covenant of Quiet Enjoyment. Landlord covenants and agrees that,
provided Tenant is not in default and keeps, observes and performs the covenants
and agreements of Tenant contained in this Lease, Tenant shall have quiet and
peaceable possession of the Demised Premises and such possession shall not be
disturbed or interfered with by Landlord or by any person claiming by, through
or under Landlord.
2.12 Condition of Demised Premises. Except as may be provided on an
Addendum hereto, Tenant covenants and agrees that, upon taking possession of the
Demised Premises, Tenant shall be deemed to have
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accepted the Demised Premises "as is" and Tenant shall be deemed to have waived
any warranty of condition or habitability, suitability for occupancy, use or
habitation, fitness for a particular purpose or merchantability, express or
implied, relating to the Demised Premises.
ARTICLE 3
TERM OF LEASE
3.1 Lease Term. "Lease Term" shall mean the period of time specified in
the Summary of Basic Lease Terms commencing at midnight on the Commencement Date
as defined below and expiring at midnight on the Expiration Date, as specified
in the Summary of Basic Lease Terms.
3.2 Commencement Date. The term "Commencement Date" shall mean the
later of the Commencement Date set forth in the Summary of Basic Lease Terms or
the date that possession of the Demised Premises is tendered by Landlord to
Tenant as ready for occupancy when circumstances beyond the reasonable control
of Landlord have caused a delay in the Demised Premises being ready for
occupancy by Tenant. In the event of such a delay, this Lease shall not be void
or voidable by Tenant, and Landlord shall not be liable to Tenant for any loss
or damage resulting from such delay.
3.3 Early Occupancy or Entry. In the event Landlord permits Tenant or
its agents or contractors to occupy or enter the Demised Premises for any reason
prior to the Commencement Date, Tenant shall be subject to all terms and
provisions hereof.
ARTICLE 4
RENT AND OTHER AMOUNTS PAYABLE
4.1 Basic Rent. Tenant covenants and agrees to pay to Landlord, without
offset, deduction or abatement, basic rent for the full Lease Term in the amount
specified as Basic Rent in the Summary of Basic Lease Terms ("Basic Rent").
4.2 Monthly Rent. Basic Rent shall be payable monthly in advance,
without notice, in equal installments, together with installments of Additional
Rent, in the amount of monthly rent specified in the Summary of Basic Lease
Terms ("Monthly Rent"). One such monthly installment shall be due and payable
on the date hereof and a like monthly installment shall be due and payable on or
before the first day of each calendar month succeeding the commencement date
recited in the Summary of Basic Lease Terms during the hereby demised term,
except that the rental payment for any fractional calendar month at the
commencement or end of the Lease Term shall be prorated based on a thirty (30)
day month.
4.3 Place of Payments. Basic Rent and all other sums payable by Tenant
to Landlord under this Lease shall be paid to Landlord at the place for payments
specified in the Summary of Basic Lease Terms, or such other place as Landlord
may, from time to time, designate in writing.
4.4 Lease a Net Lease and Rent Absolute. It is the intent of the
parties that the Basic Rent provided in this Lease shall be a net payment to
Landlord; that, except as otherwise expressly provided herein, the Lease shall
continue for the full Lease Term notwithstanding any occurrence preventing or
restricting use and occupancy of the Demised Premises, including any damage or
destruction affecting the Demised Premises, and any action by governmental
authority relating to or affecting the Demised Premises; that the Basic Rent
shall be absolutely payable without offset, reduction or abatement for any cause
except as otherwise specifically provided in this Lease; that Landlord shall not
bear any costs or expenses relating to the Demised Premises or provide any
services or do any act in connection with the Demised Premises except
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as otherwise specifically provided in this Lease; and that Tenant shall pay, in
addition to Basic Rent, Additional Rent to cover costs and expenses relating to
the Demised Premises, the Common Facilities, and the Property, all as
hereinafter provided.
4.5 Additional Rent. Tenant covenants and agrees to pay, as Additional
Rent, all costs and expenses relating to the Demised Premises including
utilities, maintenance and repair thereof; Tenant's Pro Rata Share of all costs
and expenses relating to the Common facilities, including but not limited to the
repair and maintenance thereto described in Section 7.2 hereof; Tenant's Pro
Rata Share of all Taxes and Assessments and costs and expenses of Casualty
Insurance; all costs and expenses of Liability Insurance and Other Insurance;
and all other costs and expenses which Tenant is obligated to pay under this
Lease.
4.6 Tenant's Pro Rata Share. "Tenant's Pro Rata Share" shall mean the
percentage set forth in the Summary of Basic Lease Terms as Tenant's Pro Rata
Share which is the percentage derived by dividing the approximate rentable floor
area of the Demised Premises, as set forth in the Summary of Basic Lease Terms,
by the approximate rentable floor area within the Building, as set forth in the
Summary of Basic Lease Terms. The percentage set forth in the Summary of Basic
Lease Terms shall be conclusive and not subject to adjustment for remeasurement
of the area of the Demised Premises or the Building. Landlord may modify
Tenant's Pro Rata Share from time to time based upon any increase or reduction
in the rentable floor area of the Building or of the Demised Premises.
4.7 Monthly Deposits for Taxes, Insurance, and Common Facilities
Charges. Tenant will pay to Landlord, monthly in advance, without notice, on
each day that payment of Monthly Rental is due, amounts, as hereinafter
specified, for payment of Tenant's Pro Rata Share of Taxes and Assessments
(defined in Section 5.1), "Casualty Insurance" (defined in Section 6.1),
Landlord liability insurance, if applicable, (defined in Section 6.2), "Common
Facilities Charges" (defined in Section 7.2), and any other charges payable with
respect to the Property hereunder as Additional Rent (collectively "Monthly
Deposits") and, if the Monthly Deposits are insufficient to pay Tenant's Pro
Rata Share of the actual cost of such items, to pay to Landlord, within ten (10)
days after demand by Landlord, such amounts as are necessary to provide Landlord
with sufficient funds to pay Tenant's Pro Rata Share of the same. The Monthly
Deposits shall each be equal to Tenant's Pro Rata Share of 1/12 of the amounts,
as reasonably estimated and re-estimated from time to time by Landlord, of the
annual Taxes and Assessments, annual Casualty Insurance premiums, annual
Landlord liability insurance premiums, and annual Common Facilities Charges
payable with respect to the Property. The initial Monthly Deposit shall be
subject to adjustment as herein provided. To the extent the Monthly Deposits
exceed Tenant's Pro Rata Share of the actual cost of such items, the excess
amount shall, at Landlord's option, except as may be otherwise provided by law,
either be paid to Tenant or credited against future Monthly Deposits or against
Basic Rent, Additional Rent or other amounts payable by Tenant under this Lease.
If Tenant so requests in writing within thirty (30) days after the date of
Landlord's annual reconciliation of Monthly Deposits, Landlord shall furnish
Tenant with a copy of invoices or receipts for Taxes, Insurance, and Common
Facilities Charges. The amounts of such taxes, insurance premiums and expenses
payable by Tenant for the years in which the Lease Term commences and expires
shall be subject to the provisions hereinafter contained in this Lease for
proration of such amounts in such years. Prior to the dates on which payment is
due for such items, Landlord shall make payment of the same, to the extent funds
from Monthly Deposits available therefor. Except for Landlord's obligation to
make payments out of funds available from Monthly Deposits, the making of
Monthly Deposits by Tenant shall not limit or alter Tenant's obligation to pay
taxes and assessments and to maintain insurance as elsewhere provided in this
Lease.
4.8 Security Deposit. Upon execution of this Lease by Tenant, Tenant
shall deposit with Landlord, the amount specified as a security deposit in the
Summary of Basic Lease Terms ("Security Deposit"). The Security Deposit shall be
retained by Landlord and may be applied by Landlord, to the extent
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necessary, to pay and cover any loss, cost, damage or expense, including
attorneys' fees, sustained by Landlord by reason of the failure of Tenant to
comply with any provisions, covenant or agreement of Tenant contained in this
Lease. To the extent not necessary to cover such loss, cost, damage or expense,
the Security Deposit, without any interest thereon, shall be returned to Tenant
within sixty (60) days after expiration of the Lease Term or as may be otherwise
provided by law; provided, however, that Landlord may also deduct any amount
from the Security Deposit Landlord estimates may be required to cover any
shortfall in Additional Rent deposits made by Tenant in the final year of the
Lease until such time as Landlord has completed its annual Additional Rent
reconciliation for such year. The Security Deposit shall not be considered as an
advance payment of rent or as a measure of the loss, cost, damage or expense
which is or may be sustained by Landlord. In the event all or any portion of the
Security Deposit is applied by Landlord to pay any such loss, cost, damage or
expense, Tenant shall, from time to time, promptly upon demand, deposit with
Landlord such amounts as may be necessary to replenish the Security Deposit to
its original amount.
4.9 General Provisions as to Monthly Deposits and Security Deposit.
Landlord shall not be required to hold the Security Deposit in an escrow or
trust deposit account, and Landlord may commingle the Monthly Deposits with
Landlord's own funds. Landlord shall not be obligated to pay interest to Tenant
on account of the Monthly Deposits and Security Deposit. In the event of a
transfer by Landlord of Landlord's interest in the Demised Premises, Landlord or
the property manager of Landlord may deliver the Monthly Deposits and Security
Deposit to the transferee of Landlord's interest and Landlord and such property
manager shall thereupon be discharged from any further liability to Tenant with
respect to such Monthly Deposits and security Deposit. In the event of a
transfer by Tenant of Tenant's interest in the Demised Premises, Landlord shall
be entitled to return the Monthly Deposits and Security Deposit to Tenant's
successor in interest and Landlord shall thereupon be discharged from any
further liability with respect to the Monthly Deposits and Security Deposit.
4.10 Rent Regulations. If the Basic Rent, Additional Rent, or any other
amounts to be paid by the Tenant to the Landlord hereunder is or becomes at any
time subject to regulation by law, then the rent or other amounts to be so paid
shall be the maximum rental or other amounts permitted by said laws, but in no
event in excess of the rent or other amounts provided for or determined in
accordance with the applicable provisions of this Lease.
ARTICLE 5
TAXES AND ASSESSMENTS
5.1 Covenant to Pay Taxes and Assessments. Tenant covenants and agrees
to pay, as Additional Rent, Tenant's Pro Rata Share of Taxes and Assessments, as
hereinafter defined, which accrue during or are attributable to the Lease Term.
"Taxes and Assessments" shall mean all taxes, assessments or other impositions,
general or special, ordinary or extraordinary, or every kind or nature, which
may be levied, assessed or imposed upon or with respect to the Property or any
part thereof, or upon any building, improvements or personal property at any
time situated thereon.
5.2 Proration at Commencement and Expiration of Term. Taxes and
Assessments shall be prorated between Landlord and Tenant for the year in which
the Lease Term commences and for the year in which the Lease Term expires as of
respectively, the date of commencement of the Lease Term and the date of
expiration of the Lease Term, except as herein provided. Additionally, for the
year in which the Lease Term expires, Tenant shall be liable without proration
for the frill amount of Taxes and Assessments relating to any improvements,
fixtures, equipment or personal property which Tenant is required to remove or
in fact removes as of the expiration of the Lease Term. Proration of Taxes and
Assessments shall be made on the basis of actual Taxes and Assessments. Tenant's
Pro Rata Share of Taxes and Assessments for the years in
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which the Lease Term commences and expires shall be paid and deposited with the
Landlord through Monthly Deposits as hereinabove provided, but, in the event
actual Taxes and Assessments for either year are greater or less than as
estimated for purposes of Monthly Deposits, appropriate adjustment and payment
shall be made between the parties, at the time the actual Taxes and are known,
as may be necessary to accomplish proration, as hereinafter provided, and such
obligation shall survive the termination or expiration of this Lease.
5.3 Special Assessments. If any Taxes or Assessments are payable in
installments over a period of years, Tenant shall be responsible only for
installments for periods during the Lease Term with proration, as above
provided, of any installment payable prior to or after expiration of the Lease
Term.
5.4 New or Additional Taxes. Tenant's obligation to pay Tenant's Pro
Rata Share of Taxes and Assessments shall include any Taxes and Assessments of a
nature not presently in effect but which may hereafter be levied, assessed or
imposed upon Landlord or upon the Property if such tax shall be based upon or
arise out of the ownership, use or operation of or the rents received from the
Property, other than income taxes or estate taxes of Landlord. For the purposes
of computing Tenant's liability for such new type of tax or assessment, the
Property shall be deemed the only Property of Landlord.
5.5 Landlord's Sole Right to Contest Taxes. Landlord shall have the
sole right to contest any Taxes or Assessments. Landlord shall pay to or credit
Tenant With Tenant's Pro Rata Share of any abatement, reduction or recovery of
any Taxes and Assessments attributable to the Lease Term less Tenant's Pro Rata
Share of all costs and expenses incurred by Landlord, including attorneys' fees,
in connection with such abatement, reduction or recovery.
ARTICLE 6
INSURANCE
6.1 Casualty Insurance. Landlord covenants and agrees to obtain and
keep in full force and effect during the Lease Term, Casualty Insurance as
hereinafter defined. "Casualty Insurance" shall mean property insurance
including "all risk" coverage with respect to the Property, in an amount equal
to the full replacement cost thereof, with coinsurance clauses of no less than
ninety percent (90%), and with coverage, at Landlord's option, by endorsement or
otherwise, for all risks, vandalism and malicious mischief, sprinkler leakage,
boilers, and rental loss and with a deductible in the amount for each occurrence
as Landlord, in its sole discretion, may determine from time to time. Casualty
Insurance obtained by Landlord need not name Tenant as an insured party and
may, at Landlord's option, may name any mortgagee or holder of a deed of trust
as an insured party as its interest may appear. Tenant covenants and agrees to
pay, as Additional Rent, its Pro Rata Share of the cost of Casualty Insurance
obtained by Landlord, and to pay, as Additional Rent, its Pro Rata Share of the
cost of any deductible under such Casualty Insurance. Tenant shall be
responsible for obtaining, at Tenants option, cost and expense, insurance
coverage for personal property and leasehold improvements of Tenant and for
business interruption of Tenant.
6.2 Liability Insurance. Tenant covenants and agrees to obtain and keep
in full force and effect during the Lease Term, and to pay the premiums and
costs of, Liability Insurance as herein defined. "Liability Insurance" shall
mean comprehensive general liability insurance covering public liability for
claims for bodily injury, personal injury, and property damage with respect to
the ownership, use and operation of the Demised Premises and the Common
Facilities, with limits of not less than two million dollars ($2,000,000.00)
combined single limit of liability, with endorsements for assumed contractual
liability with respect to the liabilities assumed by Tenant under Sections 8.25
and 9.2 of this Lease, and with no deductible, retention or self-insurance
provision contained therein, unless otherwise approved in writing by Landlord.
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Landlord may also obtain and keep in full force and effect during the Lease Term
liability insurance covering public liability with respect to the ownership, use
and operation of the Property. Tenant covenants and agrees to pay Tenant's Pro
Rata Share of the premiums and costs of such liability insurance as Additional
Rent hereunder.
6.3 Other Insurance. Tenant covenants and agrees to obtain and keep in
full force and effect during the Lease Term, and to pay the premiums and costs
of, any other types of insurance relating to the Property or Tenant's occupancy,
use, and operation of the Demised Premises that Landlord or any mortgagee or
holder of a deed of trust on the Property may hereafter reasonably require.
Tenant shall cause such other insurance to be in effect within thirty (30) days
after receipt of written notice from Landlord.
6.4 General Provisions Respecting Insurance. Except as otherwise
approved in writing by Landlord, all insurance obtained by Tenant shall be on
forms and with insurers selected or approved by Landlord, which approval shall
not be unreasonably withheld; shall name Landlord, Landlord's manager(s) and
agent(s), and the holder of any mortgage or deed of trust encumbering the
Property as insured parties, as their interests may appear; shall contain a
waiver of rights of subrogation as among Tenant, Landlord and the holder of any
such mortgage or deed of trust; shall provide coverage on an occurrence basis;
and shall provide, by certificate of insurance or otherwise, that the insurance
coverage shall not be canceled or altered except upon thirty (30) days' prior
written notice to Landlord and the holder of any such mortgage or deed of trust.
Certificates of insurance obtained by Tenant shall be delivered to Landlord who
may deposit the same with the holder of any such first mortgage or deed of
trust. Upon written request, Tenant agrees to provide Landlord with copies of
all policies of insurance obtained by Tenant hereunder.
6.5 Cooperation in the Event of Loss. Landlord and Tenant shall
cooperate with each other in the collection of any insurance proceeds which may
be payable in the event of any loss, including the execution and delivery of any
proof of loss or other actions required to effect recovery.
ARTICLE 7
UTILITY, OPERATING, MAINTENANCE AND REPAIR EXPENSES
7.1 Utility Charges. Tenant covenants and agrees to contract in
Tenant's own name and to pay, as Additional Rent, all charges for water, sewage,
disposal, storm drainage fees, gas, electricity, light, heat, power, telephone
or other utility services used, rendered or supplied to or for the Demised
Premises. If any such utility charges are not separately metered or billable to
the Demised Premises, then Landlord shall have the right to apportion utility
charges based upon Landlord's estimation of relative use of such utilities, and
such apportionment shall be final and binding upon Tenant. Tenant shall pay to
Landlord the apportioned amount of such utilities as Additional Rent.
7.2 Common Facilities Charges. Tenant covenants and agrees to pay, as
Additional Rent, Tenant's Pro Rata Share of all costs and expenses of operating,
repairing, maintaining and upkeep of the Common Facilities including, without
limitation, upkeep and replanting of grass, trees, shrubs and landscaping;
removal of dirt, debris, obstructions and litter from Parking Areas, landscaped
areas, sidewalks and driveways; repairs, resurfacing, resealing, restriping,
sweeping and snow removal from the Parking Areas, sidewalks and driveways;
sprinkler systems; building signs; stairways; heating, ventilation and air
conditioning systems; utilities for the Common Facilities; fire protection
systems and sprinkler systems; exterior painting; water and sewage disposal
systems; storm drainage systems; supplies, personnel, and the cost of any rental
of equipment in implementing such services; charges for professional management
of the Property and Common Facilities, including wages, salaries, benefits and
payroll taxes paid by Landlord with respect to its employees for providing such
services; all alterations, additions, improvements and other
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changes made to the Improvements in order to conform to changes subsequent to
the date of this Lease in any laws, ordinances, rules, regulations or orders of
any applicable governmental authority, subject to amortization of such costs at
a market rate of interest over the useful life thereof, as determined by
Landlord's accountants; and personal property taxes, licenses and permits.
Landlord may cause any or all of such services to be provided by employees of
Landlord or by independent contractor(s) and subcontractor(s). Tenant shall
pay to Landlord, monthly in advance, without notice, on each day that payment of
Monthly Rental is due, the estimated monthly charge for the Common Facilities,
as determined and redetermined from time to time by Landlord. The initial
monthly charge for Common Facilities is set forth in the Summary of Basic Lease
Terms attached hereto. If the total monthly charges paid by Tenant are less than
the Tenant's Pro Rata Share of the actual charges for Common Facilities, Tenant
shall pay the difference to Landlord within ten (10) days after demand by
Landlord. If Tenant's Pro Rata Share of such actual charges is less than the
total monthly charges paid by Tenant, the difference shall, at Landlord's
option, except as may be otherwise required by law, either be paid to Tenant or
credited against future monthly charges on the next applicable invoice for Basic
Rent, Additional Rent or other amounts payable by Tenant under this Lease.
7.3 Tenant's Maintenance Obligation. Tenant, at its sole cost and
expense to maintain, will repair, replace and keep the Demised Premises and all
improvements, fixtures and personal property thereon in good, safe and sanitary
condition, order and repair and in accordance with all applicable laws,
ordinances, orders, rules and regulations of governmental authorities having
jurisdiction. Tenant will perform or contract for and promptly pay for trash and
garbage disposal, janitorial and cleaning services, security services, interior
painting, interior window washing, replacement of damaged or broken glass and
other breakable materials, replacement of interior light bulbs and light
fixtures in or serving the Demised Premises. All costs of maintenance and
repairs to be performed by Tenant shall be considered Additional Rent hereunder.
All maintenance and repairs to be performed by Tenant shall be done promptly, in
a good and workmanlike fashion, and without diminishing the original quality of
the Demised Premises or the Property.
7.4 Landlord's Maintenance Obligation. Landlord shall be responsible
for and shall bear the costs and expenses of replacement of, or extraordinary
maintenance and repairs to, roofs, foundations, exterior walls, structural
elements of the Building, and pipes for water and sewer. Landlord shall maintain
and repair the Common Facilities, and Tenant shall pay its Pro Rata Share of all
costs and expenses with respect thereto, pursuant to Section 7.2 above.
ARTICLE 8
OTHER COVENANTS OF TENANT
8.1 Limitation on Use by Tenant. Tenant covenants and agrees to use the
Demised Premises only for the use or uses set forth as Permitted Uses by Tenant
in the Summary of Basic Lease Terms and for no other purposes, except with the
prior written consent of Landlord. Landlord has made no investigation of and
makes no representations or warranties whatsoever regarding the permissibility
of Tenant's Permitted Uses under applicable zoning or land use laws, rules,
regulations or approvals.
8.2 Compliance with Laws. Tenant covenants and agrees that at all times
during the Lease Term Tenant's use of the Demised Premises shall be in
compliance with all zoning, land use, and other applicable laws, rules, and
regulations with respect thereto, and that nothing shall be done or kept on the
Demised Premises in violation of any law, ordinance, order, rule or regulation
of any governmental authority having jurisdiction, and that the Demised Premises
shall be used, kept and maintained in compliance with any such law, ordinance,
order, rule or regulation and with the certificate of occupancy issued for the
Building and/or the Demised Premises.
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8.3 Compliance with Insurance Requirements. Tenant covenants and agrees
that nothing shall be done or kept on the Demised Premises which might impair or
increase the cost of insurance maintained with respect to the Demised Premises
or the Property, which might increase the insured risks or which might result in
cancellation of any such insurance.
8.4 No Waste or Impairment of Value. Tenant covenants and agrees that
nothing shall be done or kept on the Demised Premises or the Property which
might impair the value of the Demised Premises or the Property, or which would
constitute excessive wear and tear or waste.
8.5 No Overloading. Tenant covenants and agrees that nothing shall be
done or kept on the Demised Premises or the Building and that no improvements,
changes, alterations, additions, maintenance or repairs shall be made to the
Demised Premises which might impair the structural soundness of the Building,
Improvements, or Parking Area, which might result in an overload of electrical
lines serving the Building or cause excessive tripping of circuit breakers,
which might interfere with any telephone lines or equipment or any other
electric or electronic equipment in the Building or on any adjacent or nearby
property, which might place excessive demands on or exceed the capacity of the
water lines or sewer lines servicing the Building, or which might in any other
way overload any portion of the Property or Improvements or any equipment or
facilities servicing the same. In the event of violations hereof, Tenant
covenants and agrees to immediately remedy the violation at Tenant's expense and
in compliance with all requirements of governmental authorities and insurance
underwriters.
8.6 No Nuisance, Noxious or Offensive Activity. Tenant covenants and
agrees that no noxious or offensive activity shall be carried on upon the
Demised Premises or the Property nor shall anything be done or kept on the
Demised Premises or the Property which may be or become a public or private
nuisance or which may cause embarrassment, disturbance, or annoyance to others
in the Building or on adjacent or nearby property.
8.7 No Annoying Lights, Sounds or Odors. Tenant covenants and agrees
that no light shall be emitted from the Demised Premises which is unreasonably
bright or causes unreasonable glare; no sound shall be emitted from the Demised
Premises which is unreasonably loud or annoying; and no odor shall be emitted
from the Demised Premises which is or might be noxious or offensive to others in
the Building or on adjacent or nearby property.
8.8 No Unsightliness. Tenant covenants and agrees that no unsightliness
shall be permitted on the Demised Premises or the Property which is visible from
any adjacent or nearby property. Without limiting the generality of the
foregoing, all unsightly conditions, equipment, objects and conditions shall be
kept enclosed within the Demised Premises; no refuse, scrap, debris, garbage,
trash, bulk materials or waste shall be kept, stored or allowed to accumulate on
the Demised Premises or the Property except as may be enclosed within the
Demised Premises; all pipes, wires, poles, antennas and other facilities for
utilities or the transmission or reception of audio or visual signals or
electricity shall be kept and maintained underground or enclosed within the
Demised Premises or appropriately screened from view; and no temporary structure
shall be placed or permitted on the Demised Premises or the Property without the
prior written consent of Landlord.
8.9 No Animals. Tenant covenants and agrees that no animals shall be
permitted or kept on the Demised Premises or the Property; provided, however,
that nothing herein shall be construed as prohibiting qualified service animals
which may not be legally excluded from the Demised Premises or Property pursuant
to the Americans with Disabilities Act or any similar law, rule or regulation
applicable to the Property.
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8.10 Restriction on Signs and Exterior Lighting. Tenant covenants and
agrees that no signs or advertising devices of any nature shall be erected or
maintained by Tenant on the Demised Premises or the Property and no exterior
lighting shall be permitted on the Demised Premises or the Property except as
approved in writing by Landlord.
8.11 No Violation of Covenants. Tenant covenants and agrees not to
commit, suffer or permit any violation of any covenant, condition or restriction
affecting the Demised Premises or the Property.
8.12 Restriction on Changes and Alterations. Tenant covenants and
agrees not to improve, change, alter, add to, remove or demolish any
improvements on the Demised Premises, ("Changes"), without the prior written
consent of Landlord which consent shall not be unreasonably withheld, and unless
Tenant complies with all conditions which may be imposed by Landlord, in its
sole discretion, in connection with such consent; and unless Tenant pays to
Landlord the reasonable costs and expenses of Landlord for architectural,
engineering, legal or other consultants which may be reasonably incurred by
Landlord in determining whether to approve any such Changes. Landlord's consent
to any Changes and the conditions imposed in connection therewith shall be
subject to all requirements and restrictions of any holder of a mortgage or deed
of trust encumbering the Property. If such consent is given, no such changes
shall be permitted unless Tenant shall have procured and paid for all necessary
permits and authorizations from any governmental authorities having
jurisdiction; unless such Changes will not reduce the value of the Property, and
will not affect or impair existing insurance on the Property; and unless Tenant,
at Tenant's sole cost and expense, shall maintain or cause to be maintained
workmen's compensation insurance covering all persons employed in connection
with the work and obtains liability insurance covering any loss or damage to
persons or property arising in connection with any such Changes and such other
insurance or bonds as Landlord may reasonably require. Tenant covenants and
agrees that any such Changes approved by Landlord shall be completed with due
diligence and in a good and workmanlike fashion and in compliance with all
conditions imposed by Landlord and all applicable permits, authorizations, laws,
ordinances, orders, rules and regulations of governmental authorities having
jurisdiction and that the costs and expenses with respect to such Changes shall
be paid promptly when due and that the Changes shall be accomplished free of
liens of mechanics and materialmen. Tenant covenants and agrees that all such
Changes shall become the property of the Landlord at the expiration of the Lease
Term or, if Landlord so requests, Tenant shall, at or prior to expiration of the
Lease Term and at its sole cost and expense, remove such Changes and restore the
Demised Premises to their condition prior to such Changes.
8.13 No Mechanic's Liens. Tenant covenants and agrees not to permit or
suffer, and to cause to be removed and released, any mechanic's, materialmen's
or other lien on account of supplies, machinery, tools, equipment, labor or
material furnished or used in connection with the construction, alteration,
improvement, addition to or repair of the Demised Premises by, through or under
Tenant. At least fifteen (15) days prior to any Changes, Tenant shall provide
written notice to Landlord of the date of commencement of any Changes. Prior to
the commencement of any Changes, Tenant shall post in conspicuous locations and
maintain on the Demised Premises and Building Notices of Owner's Non-Liability
in the form attached hereto as Exhibit C or in such other form as Landlord may
from time to time require in writing. Tenant shall have the right to contest, in
good faith and with reasonable diligence, the validity of any such lien or
claimed lien, provided that Tenant shall give to Landlord such security as may
be reasonably requested by Landlord to insure the payment of any amounts
claimed, including interest and costs, and to prevent any sale, foreclosure or
forfeiture of any interest in the Property on account of any such lien,
including, without limitation, bonding, escrow or endorsement of the title
insurance policy of Landlord and any holder of a mortgage or deed of trust
encumbering the Property. If Tenant so contests, then on final determination of
the lien or claim for lien, Tenant shall immediately pay any judgment rendered,
with interest and costs, and will cause the lien to be released and any judgment
satisfied.
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8.14 No Other Encumbrances. Tenant covenants and agrees not to obtain
any financing secured by Tenant's interest in the Demised Premises and not to
encumber the Demised Premises or Landlord's or Tenant's interest therein,
without the prior written consent of Landlord, and to keep the Demised Premises
free from all liens and encumbrances except liens and encumbrances existing upon
the date of commencement of the Lease Term or liens and encumbrances created by
Landlord.
8.15 Subordination to Landlord Mortgages. Tenant covenants and agrees
that this Lease and Tenant's interest in the Demised Premises shall be junior
and subordinate to any mortgage or deed of trust now or hereafter encumbering
the Property. In the event of a foreclosure of any such mortgage or deed of
trust, Tenant shall attorn to the party acquiring title to the Property as the
result of such foreclosure. No act or further agreement by Tenant shall be
necessary to establish the subordination of this Lease to any such mortgage or
deed of trust, which is self-executing, but Tenant covenants and agrees, upon
request to Landlord, to execute such documents as may be necessary or
appropriate to confirm and establish this Lease as subordinate to any such
mortgage or deed of trust in accordance with the foregoing provisions,
including, without limitation; the form of Subordination, Non-Disturbance and
Attornment Agreement attached hereto as Exhibit D. Alternatively, Tenant
covenants and agrees that, at the option of any mortgagee or beneficiary under a
deed Of trust, Tenant shall execute documents as may be necessary to establish
this Lease and Tenant's interest in the Demised Premises as superior to any such
mortgage or deed of trust. If Tenant fails to execute any documents required to
be executed by Tenant under the provisions hereof, Tenant hereby makes,
constitutes and irrevocably appoints Landlord as Tenant's attorney in fact and
in Tenant's name, place and stead to execute any such document. In the event
Tenant requests any changes or revisions to any such document or agreement,
Tenant shall pay to Landlord, within ten (10) days after demand by Landlord, the
reasonable costs and expenses of Landlord in connection with the negotiation,
drafting, and revision thereof, including attorneys' fees.
8.16 Assignment or Subletting. Tenant covenants and agrees not to make
or permit a Transfer by Tenant, as hereinafter defined, without Landlord's prior
written consent, which consent shall not be unreasonably withheld. A Transfer by
Tenant shall include an assignment of this Lease, a sublease of all or any part
of the Demised Premises, any transfer of 50% or more of the voting stock or
interests of Tenant, or any assignment, sublease, license, franchise, transfer,
mortgage, pledge or encumbrance of all or any part of Tenant's interest under
this Lease or in the Demised Premises, by operation of law or otherwise, or the
use or occupancy of all or any part of the Demised Premises by anyone other than
Tenant. Any such Transfer by Tenant without Landlord's written consent shall be
void and shall constitute a default under this Lease. In the event Landlord
consents to any Transfer by Tenant, Tenant shall not be relieved of its
obligations under this Lease and Tenant shall remain liable, jointly and
severally and as a principal, and not as a guarantor or surety, under this
Lease, to the same extent as though no Transfer by Tenant had been made, unless
specifically provided to the contrary in Landlord's prior written consent. The
acceptance of rent by Landlord from any person other than Tenant shall not be
deemed to be a waiver by Landlord of the provisions of this Section or of any
other provision of this Lease and any consent by Landlord to Transfer by Tenant
shall not be deemed a consent to any subsequent Transfer by Tenant. In giving or
withholding its consent to a proposed Transfer by Tenant, Landlord shall be
entitled to consider any reasonable factor, including but not limited to the
following: (a) financial strength and credit history of the proposed
subtenant/assignee; (b) business reputation of the proposed subtenant/assignee;
(c) proposed use of the Demised Premises by the proposed subtenant/assignee;
(d) managerial and operational skills of the proposed subtenant/assignee; and
(e) compatibility of the proposed subtenant/assignee with other tenants of the
Building.
Notwithstanding the foregoing, Landlord shall, at Landlord's
option, have the right, in lieu of consenting to a Transfer by Tenant, to
terminate this Lease as to the portion of the Demised Premises that is
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subject to the proposed Transfer by Tenant and to enter into a new lease with
the proposed transferee and receive directly from the proposed transferee the
consideration agreed to be given by such transferee to Tenant for the Transfer
by Tenant. Alternatively, at the request of Landlord, Tenant shall pay over to
Landlord all sums received by Tenant in excess of the rent payable by Tenant
hereunder which is attributable on an equally allocable square foot basis, to
the subletting of all or any portion of the Demised Premises so subleased.
In the event Landlord consents to a Transfer by Tenant, any
option to renew this Lease or right to extend the Lease Term shall automatically
terminate unless otherwise agreed in writing by Landlord. Tenant covenants and
agrees that in the event Landlord consents to a sublease by Tenant, Tenant and
Tenant's Subtenant shall enter into the form of Sublease, Assumption and Consent
Agreement attached hereto as Exhibit E, and in the event Landlord consents to an
assignment, Tenant and Tenant's assignee shall enter into the form of
Assignment, Assumption, and Consent Agreement attached hereto as Exhibit F, or
the standard form of agreement in each case then being used by Landlord for
subleases and assignments. In the event Tenant or Tenant's transferee requests
any changes or revisions to any such agreement, Tenant shall pay to Landlord,
within ten (10) days after demand by Landlord, the reasonable costs and expenses
of Landlord in connection with any request by Tenant for consent to a Transfer,
including attorneys' fees.
8.17 Annual Financial Statements. Tenant covenants and agrees to
furnish to Landlord, within fifteen (15) days after Landlord's written request,
copies of Tenant's most recent year end financial statements, and agrees that
Landlord may deliver any such financial statements to any existing or
prospective mortgagee or purchaser of the Property. The financial statements
shall include a balance sheet as of the end of, and a statement of profit and
loss for, the preceding fiscal year of Tenant and, if regularly prepared by
Tenant, a statement of sources and use of funds for the preceding fiscal year of
Tenant.
8.18 Payment of Income and Other Taxes. Tenant covenants and agrees to
pay promptly when due all personal property taxes on personal property of Tenant
on the Demised Premises and all federal, state and local income taxes, sales
taxes, use taxes, Social Security taxes, unemployment taxes and taxes withheld
from wages or salaries paid to Tenant's employees, the nonpayment of which might
give rise to a lien on the Demised Premises or Tenant's interest therein, and to
furnish, if requested by Landlord, evidence of such payments.
8.19 Estoppel Certificates. Tenant covenants and agrees to execute,
acknowledge and deliver to Landlord, upon Landlord's written request, a written
Estoppel Certificate certifying that this Lease is unmodified (or, if modified,
stating the modifications) and in full force and effect; stating the dates to
which Basic Rent has been paid, stating the amount of the Security Deposit held
by Landlord; stating the amount of the Monthly Deposits held by Landlord for the
then tax and insurance year; and stating whether or not Landlord is in default
under this Lease (and, if so, specifying the nature of the default); and stating
such other matters concerning this Lease as Landlord may reasonably request,
including but not limited to, the form of Estoppel Certificate attached hereto
as Exhibit G. Tenant agrees that such statement may be delivered to and relied
upon by any existing or prospective mortgagee or purchaser of the Property.
Tenant agrees that a failure to deliver such a statement within ten (10) days
after written request from Landlord shall be conclusive upon Tenant that this
Lease is in full force and effect without modification except as may be
represented by Landlord; that there are no uncured defaults by Landlord under
this Lease; and that any representation by Landlord with respect to Basic Rent,
the Security Deposit and Monthly Deposits are true. In the event Tenant requests
any changes or revisions to any such Estoppel Certificate, Tenant shall pay to
Landlord, within ten (10) days after demand by Landlord, the reasonable costs
and expenses of Landlord in connection the negotiation, drafting and revision of
such Estoppel Certificate, including attorneys' fees.
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8.20 Landlord Right to Inspect and Show Premises and to Install "For
Sale" Signs. Tenant covenants and agrees that Landlord and the authorized
representatives of Landlord shall have the right to enter the Demised Premises
at any reasonable time for the purposes of inspecting, repairing or maintaining
the same or performing any obligations of Tenant which Tenant has failed to
perform hereunder or for the purposes of showing the Demised Premises to any
existing or prospective mortgagee, purchaser or lessee of the Property or the
Demised Premises. Tenant covenants and agrees that Landlord may at any time and
from time to time place on the Property or the Demised Premises a sign
advertising the Property or the Demised Premises for sale or for lease.
8.21 Landlord Right to Renovate, Expand or Modify Building. Tenant
covenants and agrees that Landlord shall have the right to renovate, expand,
reconstruct, or otherwise modify the Building and/or Common Facilities at any
time, in Landlord's sole discretion; provided, however, that no such renovation,
expansion, reconstruction, or other modification shall permanently and
materially interfere with Tenant's right to the quiet use and enjoyment of the
Demised Premises according to the terms of this Lease. In the event any
renovation, expansion, reconstruction or other modification of the Building or
Common Facilities by Landlord causes a temporary material interference with
Tenant's use and enjoyment of the Demised Premises, then during the period of
such interference, there shall be an abatement of Basic Rent and Additional Rent
proportionate to the extent of the space and period of time that Tenant is
unable to use and enjoy the Demised Premises.
8.22 Landlord Right to Relocate. Tenant covenants and agrees that
Landlord shall have the right, upon not less than sixty (60) days prior notice
to Tenant, to relocate Tenant from the Demised Premises to another space in the
Building or in another building owned by Landlord or any of its affiliates in
the vicinity of the Building; provided, however, that, unless otherwise agreed,
such relocation space shall be of equal or greater rentable square feet than the
Demised Premises and shall be of substantially similar or better overall quality
than the Demised Premises. Landlord shall pay the costs of any tenant finish
required to make such relocation space suitable for Tenant's business and shall
credit or reimburse Tenant for the reasonable costs of moving Tenant's
furniture, equipment, and other personality from the Demised Premises to the
relocation space. Landlord shall not otherwise be liable for any loss, cost,
expense, or damage of Tenant in connection therewith, and this Lease shall
continue in full force and effect without modification for the remainder of the
Lease term.
8.23 Landlord Title to Fixtures, Improvements and Equipment. Tenant
covenants and agrees that all fixtures and improvements on the Demised Premises
and all equipment and personal property relating to the use and operation of the
Demised Premises (as distinguished from operations incident to the business of
Tenant), including all plumbing, heating, lighting, electrical and air
conditioning fixtures and equipment, whether or not attached to or affixed to
the Demised Premises, and whether now or hereafter located upon the Demised
Premises, shall be and remain the property of the Landlord upon expiration of
the Lease Term.
8.24 Removal of Tenant's Equipment. Tenant covenants and agrees to
remove, at or prior to the expiration of the Lease Term, all of Tenant's
Equipment, as hereinafter defined. "Tenant's Equipment" shall mean all
equipment, apparatus, machinery, signs, furniture, furnishings and personal
property used in the operation of the business of Tenant (as distinguished from
the use and operation of the Demised Premises). If such removal shall injure or
damage the Demised Premises Tenant covenants and agrees, at its sole cost and
expense, at or prior to the expiration of the Lease Term, to repair such injury
and damage in good and workmanlike fashion and to place the Demised Premises in
the same condition as the Demised Premises would have been if such Tenant's
Equipment had not been installed. If Tenant fails to remove any Tenant's
Equipment by the Expiration of the Lease Term, Landlord may, at its option, keep
and retain any such Tenant's Equipment or dispose of the same and retain any
proceeds therefrom, and Landlord shall be entitled
13
to recover from Tenant any costs or expenses of Landlord in removing the same
and in restoring the Demised Premises in excess of the actual proceeds, if any,
received by Landlord from disposition thereof. Tenant releases and discharges
Landlord from any and all claims and liabilities of any kind arising out of
Landlord's disposition of Tenant's Equipment.
8.25 Tenant Indemnification of Landlord. Tenant covenants and agrees to
protect, indemnify, defend, and hold Landlord harmless from and against all
liability, obligations, claims, damages, penalties, causes of action, costs and
expenses, including attorneys' fees, imposed upon, incurred by or asserted
against Landlord by reason of: (a) any accident, injury to or death of any
person or loss of or damage to any property occurring on or about the Demised
Premises or Common Facilities; (b) any act or omission of Tenant or Tenant's
officers, employees, agents, guests or invitees or of anyone claiming by,
through or under Tenant; (c) any use which may be made of, or condition existing
upon, the Demised Premises or Common Facilities; (d) any improvements, fixtures
or equipment upon the Demised Premises or Common Facilities; (e) any failure on
the part of Tenant to perform or comply with any of the provisions, covenants or
agreements of Tenant contained in this Lease; (f) any violation of any law,
ordinance, order, rule or regulation of governmental authorities having
jurisdiction by Tenant or Tenant's officers, employees, agents, guests or
invitees or by anyone claiming by, through or under Tenant; and (g) any repairs,
maintenance of Changes to the Demised Premises made or caused to be made by,
through or under Tenant. Tenant further covenants and agrees that, in case any
action, suit or proceeding is brought against Landlord by reason of any of the
foregoing, Tenant will, at Tenant's sole cost and expense, pay all costs and
expenses to defend Landlord in any such action, suit or proceeding with counsel
of Landlord's choosing.
8.26 Liability of Landlord. Landlord shall be liable to Tenant for
Landlord's gross negligence and willful misconduct. Tenant waives and releases
any claims Tenant may have against Landlord or Landlord's officers, agents or
employees for loss, damage or injury to person or property sustained by Tenant
or Tenant's officers, agents, employees, guests, invitees, or anyone claiming
by, through or under Tenant resulting from any cause whatsoever other than gross
negligence or willful misconduct. Notwithstanding anything to the contrary
contained in this Lease, Landlord, its beneficiaries, successors and assigns,
shall not be personally liable with respect to any of the terms, covenants and
conditions of this Lease, and Tenant shall look solely to the equity of Landlord
in the Property in the event of any default or liability of Landlord under this
Lease, such exculpation of liability to be absolute and without any exception
whatsoever.
8.27 Release upon Transfer by Landlord. In the event of a transfer by
Landlord of the Property or of Landlord's interest as Landlord under this Lease,
Landlord's successor or assignee shall take subject to and be bound by this
Lease and, in such event, Tenant covenants and agrees that Landlord shall be
released from all obligations of Landlord under this Lease, except obligations
which arose and matured prior to such transfer by Landlord; that Tenant shall
thereafter look solely to Landlord's successor or assign for satisfaction of the
obligations of Landlord under this Lease; and that, upon demand by Landlord or
Landlord's successor or assign, Tenant shall attorn to such successor or assign.
8.28 Rules and Regulations. Tenant shall observe and comply with rules
and regulations which may be reasonably promulgated and amended from time to
time by Landlord by providing written notice thereof to Tenant. Landlord shall
not be responsible to Tenant for the failure of any other tenant of the Building
to observe or comply with any of the rules or regulations, but Landlord shall
make reasonable efforts to enforce the rules and regulations (if any) for the
benefit of all tenants of the Building.
8.29 Monitoring Equipment. Should equipment for monitoring fire systems
and/or security systems be deemed necessary by Tenant or be required for the
Demised Premises by federal, state, or local governing agencies because of
Tenant's equipment, the nature of Tenant's business, or Tenant's
14
modification of the Demised Premises, Tenant shall be responsible for
installation of such monitoring system, for any required building permits,
monthly monitoring fees, and any fines, penalties or other charges for false
alarms. Should such monitoring systems be otherwise required by federal, state,
or local governing agencies, or deemed by Landlord to be advisable for the
operation of the Building, Landlord shall be responsible for installation of
such monitoring systems, and all costs and expenses relating thereto shall be
included as Common Facilities Charges.
ARTICLE 9
ENVIRONMENTAL MATTERS
9.1 Definitions.
9.1.1 Hazardous Material. Hazardous Material means any
substance:
9.1.1.1 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 or ordinance or amendments thereto including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act (42 U.S.C. Section 9601 et seq.) and the Resource Conservation and Recovery
Act (42 U.S.C. Section 6901 et seq.); or
9.1.1.2 which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise
hazardous and is or becomes regulated by any governmental authority, agency,
department, commission, board, agency or instrumentality of the United States,
the State of Colorado or any political subdivision thereof; or
9.1.1.3 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
9.1.1.4 which contains gasoline, diesel fuel or other
petroleum hydrocarbons; or
9.1.1.5 which contains polychlorinated bipheynols
(PCBs), asbestos or urea formaldehyde foam insulation; or
9.1.1.6 radon gas.
9.1.2 Environmental Requirements. Environmental Requirements
means all applicable present and future statutes, regulations, rules,
ordinances, codes, licenses, permits, orders, approvals, plans, authorizations,
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.
9.1.3 Environmental Damages. Environmental Damages means all
claims, judgments, damages, losses, penalties, fines, liabilities (including
strict liability), encumbrances, liens, costs, and expenses of investigation and
defense of any claim, whether or not such claim is ultimately defeated, and of
any good faith settlement or 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' and
witnesses' fees, any of which are incurred at any time as a result of the
15
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.
9.2 Tenant's Obligation to Indemnify, Defend and Hold Harmless. Tenant,
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 TENANT OR ITS EMPLOYEES,
AGENTS, CONTRACTORS, SUBCONTRACTORS, OR GUESTS, LICENSEES, OR INVITEES which (1)
result in the presence of Hazardous Materials upon, about or beneath the Demised
Premises or migrating to or from the Demised Premises, or (2) result in the
violation of any Environmental Requirements pertaining to the Demised Premises
and the activities thereon:
9.2.1 Landlord;
9.2.2 any other person who acquires an interest in the
premises in any manner, including but not limited to purchase at a foreclosure
sale or otherwise; and
9.2.3 the directors, officers, shareholders, employees,
partners, agents, contractors, subcontractors, experts, licensees, affiliates,
lessees, mortgagees, trustees, heirs, devisees, successors, assigns, guests and
invitees of such persons.
This obligation shall include, but not be limited to, the burden and
expense of investigating and defending all claims, suits and administrative
proceedings (with counsel reasonably approved by the indemnified parties),
including attorneys' fees and expert witness and consulting fees, even if such
claims, suits or proceedings are groundless, false or fraudulent, 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, and all such expenses incurred in enforcing the obligation
to indemnify. Tenant, at its sole expense, may employ additional counsel of its
choice to associate with counsel representing the indemnified parties.
9.3 Tenant's Obligation to Remediate. Notwithstanding the obligation of
Tenant to indemnify Landlord pursuant to this agreement, Tenant shall, upon
demand of Landlord, and at its sole cost and expense, promptly take all actions
to remediate the Demised Premises, Building, and Land which are reasonably
necessary to mitigate Environmental Damages or to allow full economic use of the
Building and Land, or are required by Environmental Requirements, which
remediation is necessitated by the 1) introduction of a Hazardous Material upon,
about or beneath the Demised Premises or 2) a violation of Environmental
Requirements, EITHER OF WHICH IS CAUSED BY THE ACTIONS OF TENANT, ITS EMPLOYEES,
AGENTS, CONTRACTORS, SUBCONTRACTORS, GUESTS, INVITEES OR LICENSEES. Tenant shall
promptly provide to Landlord copies of testing results and reports that are
generated in connection with the above activities, and copies of any
correspondence with any governmental entity related to such activities.
9.4 Notification. If Tenant shall become aware of or receive notice or
other communication concerning any actual, alleged, suspected or threatened
violation of Environmental Requirements, or liability of Tenant for
Environmental Damages in connection with the Demised 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 Tenant shall deliver to
Landlord, within ten days of the receipt of such notice or communication by
Landlord, a written description of said violation, liability, correcting
information, or actual or threatened event or condition, together with copies of
any such notice or communication. Receipt
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of such notice shall not be deemed to create any obligation on the part of
Landlord to defend or otherwise respond to any such notification or
communication.
9.5 Negative Covenants.
9.5.1 No Hazardous Material on Demised Premises. Except in
strict compliance with all Environmental Requirements, Tenant 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 Demised Premises by Tenant, its
agents, employees, contractors, subcontractors, guests, licensees or invitees,
or any other person. Tenant shall deliver to Landlord copies of all documents
which Tenant provides to any governmental body in connection with compliance
with Environmental Requirements with respect to the premises, such delivery to
be contemporaneous with provision of the documents to the governmental agency.
9.5.2 No Violations of Environmental Requirements Tenant shall
not cause, permit or suffer the existence or the commission by Tenant, its
agents, employees, contractors, subcontractors or guests, licensees or invitees,
or by any other person of a violation of any Environmental Requirements upon,
about or beneath the Demised Premises or any portion of the Building or Land.
9.6 Landlord's Right to Inspect and to Audit Tenant's Records. Landlord
shall have the right in its sole and absolute discretion, but not the duty, to
enter and conduct an inspection of the Demised Premises and to inspect and audit
Tenant's records concerning Hazardous Materials at any reasonable time to
determine whether Tenant is complying with the terms of the Lease, including but
not limited to the compliance of the Demised Premises and the activities thereon
with Environmental Requirements and the existence of Environmental Damages.
Tenant hereby grants to Landlord the right to enter the Demised Premises and to
perform such tests on the Demised Premises as are reasonably necessary in the
opinion of Landlord to assist in such audits and investigations. Landlord shall
use reasonable efforts to minimize interference with the business of Tenant by
such tests, inspections and audits, but Landlord shall not be liable for any
interference caused thereby.
9.7 Landlord's Right to Remediate. Should Tenant fail to perform or
observe any of its obligations or agreements pertaining to Hazardous Materials
or Environmental Requirements, then Landlord shall have the right, but not the
duty, without limitation upon any of the rights of Landlord pursuant to this
Lease, to enter the Demised Premises personally or through its agents,
consultants or contractors and perform the same. Tenant agrees to indemnify
Landlord for the costs thereof and liabilities therefrom as set forth in Section
9.2.
9.8 Survival of Environmental Obligations. The obligations of Landlord
and Tenant as set forth in this Article 9 and all of its sections shall survive
expiration or termination of this Lease.
ARTICLE 10
DAMAGE OR DESTRUCTION
10.1 Damage to Demised Premises. If any portion of the Demised Premises
shall be damaged or destroyed by fire or other casualty, Tenant shall give
prompt written notice thereof to Landlord ("Tenant's Notice of Damage").
10.2 Options to Terminate if Damage to Demised Premises is Substantial.
Upon receipt of Tenant's Notice of Damage, Landlord shall promptly proceed to
determine the nature and extent of the damage or
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destruction and to estimate the time necessary to repair or restore the Demised
Premises. As soon as reasonably possible, Landlord shall give written notice to
Tenant stating Landlord's estimate of the time necessary to repair or restore
the Demised Premises ("Landlord's Notice of Repair Time"). If Landlord
reasonably estimates that repair or restoration of the Demised Premises cannot
be completed within two hundred forty (240) days from the time of Landlord's
Notice of Repair Time, Landlord and Tenant shall each have the option to
terminate this Lease. If, however, the damage or destruction was caused by the
act or omission of Tenant or Tenant's officers, employees, agents, guests or
invitees or of anyone claiming by, through or under Tenant, Landlord shall have
the option to terminate this Lease if Landlord reasonably estimates that the
repair or restoration cannot reasonably be completed within two hundred forty
(240) days from the time of Tenant's Notice of Damage, but Tenant shall not have
the option to terminate tins Lease. Any option granted hereunder shall be
exercised by written notice to the other party given within ten (10) days after
Landlord's Notice of Repair Time. If either Landlord or Tenant exercises its
option to terminate this Lease, the Lease Term shall expire thirty (30) days
after the notice by either Landlord or Tenant exercising such party's option to
terminate this Lease. Following termination of this Lease under the provisions
hereof, Landlord shall refund to Tenant such amounts of Basic Rent and
Additional Rent theretofore paid by Tenant as may be applicable to the period
subsequent to the time of Tenant's Notice of Damage less the reasonable value of
any use or occupation of the Demised Premises by Tenant subsequent to the time
of Tenant's Notice of Damage.
10.3 Damage to Building. If the Building shall be damaged or destroyed
by fire or other casualty (whether or not the Demised Premises are affected) to
the extent of fifty percent (50%) or more of the replacement value of the
Building, and within thirty (30) days after the happening of such damage
Landlord shall decide not to reconstruct or rebuild the Building, then upon
written notice to Tenant within such thirty (30) days, this Lease shall
terminate and Landlord shall refund to Tenant such amounts of Basic Rent and
Additional Rent paid by Tenant for the period after such damage less the
reasonable value of any use or occupation of the Demised Premises by Tenant
during such period.
10.4 Obligations to Repair and Restore. If repair and restoration of
the Demised Premises can be completed within the period specified in Section
10.2, in Landlord's reasonable estimation, or if neither Landlord nor Tenant
terminate this Lease as provided in Sections 10.2 or 10.3, this Lease shall
continue in full force and effect and Landlord shall proceed forthwith to cause
the Demised Premises to be repaired and restored with reasonable diligence and
there shall be abatement of Basic Rent and Additional Rent proportionate to the
extent of the space and period of time that Tenant is unable to use and enjoy
the Demised Premises. Landlord may, at its option, require Tenant to arrange for
and supervise the repair and restoration of the Demised Premises, in which case
Landlord shall furnish Tenant with the insurance proceeds for such repair and
restoration at the time or times such funds are needed, provided such proceeds
are sufficient to cover the costs of repair or restoration.
10.5 Application of Insurance Proceeds. The proceeds of any Casualty
Insurance maintained on the Demised Premises, other than casualty insurance
maintained by Tenant on fixtures and personal property of Tenant, shall be paid
to and become the property of Landlord, subject to any obligation of Landlord to
cause the Demised Premises to be repaired and restored and further subject to
any rights of a holder of a mortgage or deed of trust encumbering the Property
to such proceeds. Landlord's obligation to repair and restore the Demised
Premises provided in this Article 10 is limited to the repair and restoration
that can be accomplished with the proceeds of any Casualty Insurance maintained
on the Demised Premises. The amount of any such insurance proceeds is subject to
any right of a holder of a mortgage or deed of trust encumbering the Property to
apply such proceeds to its secured debt.
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ARTICLE 11
CONDEMNATION
11.1 Taking -- Substantial Taking -- Insubstantial Taking. A "Taking"
shall mean the taking of all or any portion of the Demised Premises as a result
of the exercise of the power of eminent domain or condemnation for public or
quasi-public use or the sale of all or part of the Demised Premises under the
threat of condemnation. A "Substantial Taking" shall mean a Taking of twenty
five percent (25%) or more of the area (in square feet) of either the Demised
Premises or the Building. An "Insubstantial Taking" shall mean a Taking which
does not constitute a Substantial Taking.
11.2 Termination on Substantial Taking. If there is a Substantial
Taking with respect to the Demised Premises or the Building, the Lease Term
shall expire on the date of vesting of title pursuant to such Taking. In the
event of termination of this Lease under the provisions hereof, Landlord shall
refund to Tenant such amounts of Basic Rent and Additional Rent theretofore paid
by Tenant as may be applicable to the period subsequent to the time of
termination of this Lease.
11.3 Restoration on Insubstantial Taking. In the event of an
Insubstantial Taking, this Lease shall continue in full force and effect,
Landlord shall proceed forthwith to cause the Demised Premises, less such
Taking, to be restored as near as may be to the original condition thereof and
there shall be abatement of Basic Rent and Additional Rent proportionate to the
extent of the space so taken. Landlord may, at its option, require Tenant to
arrange for and handle the restoration of the Demised Premises, in which case
Landlord shall furnish Tenant with sufficient funds for such restoration at the
time or times such funds are needed.
11.4 Right to Award. The total award, compensation, damages or
consideration received or receivable as a result of a Taking ("Award") shall be
paid to and be the property of Landlord, including, without limitation, any part
of the Award made as compensation for diminution of the value of the leasehold
or the fee of the Demised Premises. Tenant hereby assigns to Landlord, all of
Tenant's right, title and interest in and to any such Award. Tenant covenants
and agrees to execute, immediately upon demand by Landlord, such documents as
may be necessary to facilitate collection by Landlord of any such Award.
Notwithstanding Landlord's right to the entire Award, Tenant shall be entitled
to any separate award, if any, for the loss of Tenant's personal property or the
loss of Tenant's business and profits.
ARTICLE 12
DEFAULTS BY TENANT
12.1 Defaults Generally. Each of the following shall constitute a
"Default by Tenant" under this Lease.
12.2 Failure to Pay Rent or Other Amounts. A Default by Tenant shall
exist if Tenant fails to pay Basic Rent, Additional Rent, Monthly Deposits, or
any other amounts payable by Tenant under the terms of this Lease, within three
(3) days after such rental or amount is due.
12.3 Violation of Lease Terms. A Default by Tenant shall exist if
Tenant breaches or fails to comply with any agreement, term, covenant or
condition in this Lease applicable to Tenant, and Tenant does not cure such
breach or failure within thirty (30) days after notice thereof by Landlord to
Tenant, or, if such breach or failure to comply cannot be reasonably cured
within such 30-day period, if Tenant shall not in good faith commence to cure
such breach or failure to comply within such 30-day period or shall not
diligently proceed therewith to completion with sixty (60) days following the
occurrence of the breach or failure.
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12.4 Nonoccupancy of Demised Premises. A Default by Tenant shall exist
if Tenant shall fail to occupy and use the Demised Premises within thirty (30)
days after commencement of the Lease Term or shall leave the Demised Premises
continuously unoccupied and shall vacate and abandon the Demised Premises.
12.5 Transfer of Interest Without Consent. A Default by Tenant shall
exist if Tenant's interest under this Lease or in the Demised Premises shall be
transferred to or pass to or devolve upon any other party without Landlord's
prior written consent.
12.6 Execution and Attachment Against. A Default by Tenant shall exist
if Tenant's interest under this Lease or in the Demised Premises shall be taken
upon execution or by other process of law directed against Tenant, or shall be
subject to any attachment at the instance of any creditor or claimant against
Tenant and said attachment shall not be discharged or disposed of within thirty
(30) days after the levy thereof.
12.7 Bankruptcy or Related Proceedings. A Default by Tenant shall exist
if Tenant shall file a petition in bankruptcy or insolvency or for
reorganization or arrangement under the bankruptcy laws of the United States or
under any similar act of any state, or shall voluntarily take advantage of any
such law or act by answer or otherwise, or shall be dissolved or shall make an
assignment for the benefit of creditors or if involuntary proceedings under any
such bankruptcy or insolvency law or for the dissolution of Tenant shall be
instituted against Tenant or a receiver or trustee shall he appointed for the
Demised Premises or for all or substantially all of the property of Tenant, and
such proceedings shall not be dismissed or such receivership or trustee-ship
vacated within sixty (60) days after such institution or appointment.
ARTICLE 13
LANDLORD'S REMEDIES
13.1 Remedies Generally. Upon the occurrence of any Default by Tenant,
Landlord shall have the right, at Landlord's election, then or at anytime
thereafter, to exercise any one or more of the following remedies.
13.2 Cure by Landlord. In the event of a Default by Tenant, Landlord
may, at Landlord's option, but without obligation to do so, and without
releasing Tenant from any obligations under this Lease, make any payment or take
any action as Landlord may deem necessary or desirable to cure any such Default
by Tenant in such manner and to such extent as Landlord may deem necessary or
desirable. Landlord may do so without demand on, or written notice to, Tenant
and without giving Tenant any opportunity to cure such Default by Tenant. Tenant
covenants and agrees to pay to Landlord, within ten (10) days after demand,
all advances, costs and expenses of Landlord in connection with the making of
any such payment or the taking of any such action, including reasonable
attorneys' fees, together with interest as hereinafter provided from the day of
payment of any such advances, costs and expenses by Landlord. Action taken by
Landlord may include commencing, appearing in, defending or otherwise
participating in any action or proceedings and paying, purchasing, contesting or
compromising any claim, right, encumbrance, charge or lien with respect to the
Demised Premises which Landlord, in its discretion, may deem necessary or
desirable to protect its interest in the Demised Premises and under this Lease.
13.3 Termination of Lease and Damages. In the event of a Default by
Tenant, Landlord may terminate this Lease, effective at such time as may be
specified by written notice to Tenant, and demand (and, if such demand is
refused, recover) possession of the Demised Premises from Tenant. Tenant shall
remain liable to Landlord for damages in an amount equal to the Basic Rent,
Additional Rent and other sums which would have been owing by Tenant hereunder
for the balance of the term, had this Lease not been terminated, less the net
proceeds, if any, of reletting of the Demised Premises by Landlord subsequent to
such
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termination, after deducting all Landlord's expenses in connection with such
recovery of possession or reletting. Landlord shall be entitled to collect and
receive such damages from Tenant on the days on which the Basic Rent, Additional
Rent and other amounts would have been payable if this Lease had not been
terminated. Alternatively, at the option of Landlord, Landlord shall be entitled
to recover forthwith from Tenant, as damages for loss of the bargain and not as
a penalty, an aggregate sum which, at the time of such termination of this
Lease, represents the excess, if any, of (a) the aggregate of the Basic Rent,
Additional Rent and all other sums payable by Tenant hereunder that would
have accrued for the balance of the Lease Term, over (b) the aggregate rental
value of the Demised Premises for the balance of the Lease Term, both discounted
to present worth at the then applicable federal rate.
13.4 Repossession and Reletting. In the event of Default by Tenant,
Landlord may reenter and take possession of the Demised Premises or any part
thereof, without demand or notice, and repossess the same and expel Tenant and
any party claiming by, under or through Tenant, and remove the effects of both,
without breach of the peace, without being liable for prosecution on account
thereof or being deemed guilty of any manner of trespass, and without prejudice
to any remedies for arrears of rent or right to bring any proceeding for breach
of covenants or conditions. No such reentry or taking possession of the Demised
Premises by Landlord shall be construed as an election by Landlord to terminate
this Lease unless a written notice of such intention is given to Tenant. No
notice from Landlord hereunder or under a forcible entry and detainer statute or
similar law shall constitute an election by Landlord to terminate this Lease
unless such notice specifically so states. Landlord reserves the right,
following any reentry or reletting, to exercise its right to terminate this
Lease by giving Tenant such written notice, in which even the Lease will
terminate as specified in said notice. After recovering possession of the
Demised Premises, Landlord may, from time to time, but shall not be obligated
to, relet the Demised Premises, or any part thereof, for the account of Tenant,
for such term or terms and on such conditions and upon such other terms as
Landlord, in its uncontrolled discretion, may determine. Landlord may make such
repairs, alterations or improvements as Landlord may consider appropriate to
accomplish such reletting, and Tenant shall reimburse Landlord upon demand for
all costs and expenses, including brokers' commissions and attorneys' fees,
which Landlord may incur in connection with such reletting. Landlord may collect
and receive the rents for such reletting but Landlord shall in no way be
responsible or liable for any failure to relet the Demised Premises, or any part
thereof, or for any failure to collect any rent due upon such reletting.
Notwithstanding Landlord's recovery of possession of the Demised Premises,
Tenant shall continue to pay on the dates herein specified, the Basic Rent,
Additional Rent and other amounts which would be payable hereunder if such
repossession had not occurred. Upon the expiration or earlier termination of
this Lease, Landlord shall refund to Tenant any amount, without interest, by
which the amounts paid by Tenant, when added to the net amount, if any,
recovered by Landlord through any reletting of the Demised Premises, exceeds the
amounts payable by Tenant under this Lease. If, in connection with any
reletting, the new lease term extends beyond the existing term, or the premises
covered thereby include other premises not part of the Demised Premises, a fair
apportionment of the rent received from such reletting and the expenses incurred
in connection therewith will be made in determining the net amount recovered
from such reletting.
13.5 Security Interest. Tenant hereby grants to Landlord, pursuant to
Article 9 of the Colorado Uniform Commercial Code ("UCC"), a security interest
in all personal property and fixtures of Tenant now or hereafter located on the
Demised Premises as security for the performance of Tenant's obligations under
this Lease. Tenant covenants and agrees, upon request by Landlord from time to
time, to execute and deliver such financing statements as may be necessary or
desirable to perfect the security interest hereby granted. In the event of a
Default by Tenant, Landlord shall have the rights and remedies set forth in
Article 9 of the Colorado UCC.
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13.6 Suits by Landlord. Actions or suits for the recovery of amounts
and damages payable under this Lease may be brought by Landlord from time to
time, at Landlord's election, and Landlord shall not be required to await the
date upon which the Lease Term would have expired to bring any such action or
suit.
13.7 Recovery of Landlord Enforcement Costs. All costs and expenses
incurred by Landlord in connection with collecting any amounts and damages owing
by Tenant pursuant to the provisions of this Lease or to enforce any provision
of this Lease, including reasonable attorneys' fees, whether or not any action
is commenced by Landlord, shall be paid by Tenant to Landlord upon demand.
13.8 Administrative Late Charge. Other remedies for nonpayment of rent
notwithstanding, if the monthly rental payment is not received by Landlord on or
before the third day of the month for which the rent is due, or if any other
payment due Landlord by Tenant is not received by Landlord on or before the last
day of the month next following the month in which Tenant was invoiced, an
Administrative Late Charge of five percent (5%) of such past due amount shall
become due and payable in addition to such amounts owed under this Lease to help
defray the additional cost to Landlord for processing such late payments.
13.9 Interest on Past-Due Payments and Advances. Tenant covenants and
agrees to pay to Landlord interest on demand at the rate of twenty one percent
(21%) per annum, compounded on a monthly basis, on the amount of any Monthly
Rent, Monthly Deposit or other charges not paid when due, from the date due and
payable, and on the amount of any payment made by Landlord required to have been
made by Tenant under this Lease and on the amount of any costs and expenses,
including reasonable attorneys' fees, paid by Landlord in connection with the
taking of any action to cure any Default by Tenant, from the date of making any
such payment or the advancement of such costs and expenses by Landlord.
13.10 Landlord's Bankruptcy. Nothing contained in this Lease shall
limit or prejudice the right of Landlord to prove and obtain as liquidated
damages in any bankruptcy, insolvency, receivership, reorganization or
dissolution proceeding, an amount equal to the maximum allowable by any statute
or rule of law governing such proceeding in effect at the time when such damages
are to be proved, whether or not such amount be greater, equal or less than the
amounts recoverable, either as damages or rent, under this Lease.
13.11 Remedies Cumulative. Exercise of any of the remedies of Landlord
under this Lease shall not prevent the concurrent or subsequent exercise of any
other remedy provided for in this Lease or otherwise available to Landlord at
law or in equity.
ARTICLE 14
SURRENDER AND HOLDING OVER
14.1 Surrender upon Lease. Upon the expiration or earlier termination
of this Lease, or on the date specified in any demand for possession by Landlord
after any Default by Tenant, Tenant covenants and agrees to surrender possession
of the Demised Premises to Landlord broom clean, with all lighting, doors, and
electrical and mechanical systems (including, without limitation, all HVAC
facilities) in good working order and condition, all walls in clean condition
and holes or punctures in the walls repaired, and otherwise in the same
condition as when Tenant first occupied the Demised Premises, ordinary wear and
tear excepted.
14.2 Holding Over. If Tenant shall hold over after the expiration of
the Lease Term, without written agreement providing otherwise, Tenant shall be
deemed to be a Tenant at sufferance, at a monthly rental, payable in advance,
equal to two hundred percent (200%) of the Monthly Rental, and Tenant shall be
bound by all of the other terms, covenants and agreements of this Lease. Nothing
contained herein shall be construed to give Tenant the right to hold over at any
time, and Landlord may exercise any and all remedies
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at law or in equity to recover possession of the Demised Premises, as well as
any damages incurred by Landlord, due to Tenant's failure to vacate the Demised
Premises and deliver possession to Landlord as herein provided.
ARTICLE 15
MISCELLANEOUS
15.1 No Implied Waiver. No failure by Landlord to insist upon the
strict performance of any term, covenant or agreement contained in this Lease,
no failure by Landlord to exercise any right or remedy under this Lease, and no
acceptance of full or partial payment during the continuance of any Default by
Tenant, shall constitute a waiver of any such term, covenant or agreement, or a
waiver of any such right or remedy, or a waiver of any such Default by Tenant.
15.2 Survival of Provisions. Notwithstanding any termination of this
Lease, the same shall continue in force and effect as to any provisions hereof
which require observance or performance by Landlord or Tenant subsequent to
termination.
15.3 Covenants Independent. This Lease shall be construed as if the
Covenants herein between Landlord and Tenant are independent, and not dependent,
and Tenant shall not be entitled to any offset against Landlord if Landlord
fails to perform its obligations under this Lease.
15.4 Covenants as Conditions. Each provision of this Lease performable
by Tenant shall be deemed both a covenant and a condition.
15.5 Tenant's Remedies. Tenant may bring a separate action against
Landlord for any claim Tenant may have against Landlord under this Lease,
provided Tenant shall first give written notice thereof to Landlord and shall
afford Landlord a reasonable opportunity to cure any such default. In addition,
Tenant shall send notice of such default by certified or registered mail,
postage prepaid, to the holder of any mortgage or deed of trust covering the
Demised Premises, the Property or any portion thereof of whose address Tenant
has been notified in writing, and shall afford such holder a reasonable
opportunity to cure any default on Landlord's behalf. In no event will Landlord
be responsible for any incidental, consequential or special damages incurred by
Tenant, including, but not limited to, loss of profits or interruption of
business as a result of any default by Landlord hereunder.
15.6 Binding Effect. This Lease shall extend to and be binding upon the
heirs, executors, legal representatives, successors and assigns of the
respective parties hereto. The terms, covenants, agreements and conditions in
this Lease shall be construed as covenants running with the Land.
15.7 Short Form Lease. This Lease shall not be recorded, but Tenant
agrees, at the request of Landlord, to execute a short form lease for recording,
containing the names of the parties, a description of the Demised Premises and
the Lease Term.
15.8 Notices and Demands. All notices, demands or xxxxxxxx under this
Lease shall be in writing, signed by the party giving the same and shall be
deemed properly given and received when actually given and received or three (3)
business days after mailing, if sent by registered or certified United States
mail, postage prepaid, addressed to the party to receive the notice at the
address set forth for such party in the first paragraph of this Lease or at such
other address as either party may notify the other of in writing. Any notice by
Tenant to Landlord shall not be effective until a copy thereof shall have been
received by or transmitted in
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the same manner to Landlord's counsel at the address set forth in the Summary of
Basic Lease Terms or such other address as Landlord may from time to time
notify Tenant in writing.
15.9 Force Majeure. In the event that Landlord 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 Landlord, or not within its reasonable 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 expiration dates of this Lease); provided, however, that if
Tenant is not in any way responsible for the delay and does not have use or
occupancy of the Demised Premises during the period of delay, the rent and other
charges payable hereunder shall be abated for such period of delay.
15.10 Time of the Essence. Time is of the essence under this Lease, and
all provisions herein relating thereto shall be strictly construed.
15.11 Captions for Convenience. The headings and captions hereof are
for convenience only and shall not be considered in interpreting the provisions
hereof.
15.12 Severability. If any provision of this Lease shall be held
invalid or unenforceable, the remainder of this Lease shall not be affected
thereby, and there shall be deemed substituted for the affected provision a
valid and enforceable provision as similar as possible to the affected
provision.
15.13 Governing Law and Venue. This Lease shall be interpreted and
enforced according to the laws of the State of Colorado. Any action or
proceeding arising out of this Lease, its modification or termination, or the
performance or breach of either party hereto, shall be brought exclusively in
courts of the state and county in which the Property is located. The parties
agree that such courts are a convenient forum and waive any right to alter or
change venue, including removal.
15.14 Entire Agreement/Further Assurances. This Lease and any exhibits
and addenda referred to herein, constitute the final and complete expression of
the parties' agreement with respect to the Demised Premises and Tenant's
occupancy thereof. Each party agrees that it has not relied upon or regarded as
binding any prior agreements, negotiations, representations, or understandings,
whether oral or written, except as expressly set forth herein. The parties agree
that if there should be any clerical or typographical errors in this Lease, the
Summary of Basic Lease Terms, any exhibit or addendum hereto, the party
requested to do so will use its reasonable, good faith efforts to execute such
corrective instruments or do all things necessary or appropriate to correct such
errors. Further, the parties agree that if it becomes necessary or desirable to
execute further instruments or to make other assurances, the party requested to
do so will use its reasonable, good faith efforts to provide such executed
instruments or do all things reasonably necessary or appropriate to carry out
this Lease.
15.15 No Oral Amendment or Modifications. No amendment or modification
of this Lease, and no approvals, consents or waivers by Landlord under this
Lease, shall be valid and binding unless in writing and executed by the party to
be bound.
15.16 Real Estate Brokers. Tenant covenants to pay, hold harmless and
indemnify the Landlord from and against any and all cost, expense or liability
for any compensation, commissions, charges or claims
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by any broker or other agent with respect to this Lease or the negotiation
thereof other than the broker(s) listed as the Broker(s), if any, on the Summary
of Basic Lease Terms.
15.17 Relationship of Landlord and Tenant. Nothing contained herein
shall be deemed or construed as creating the relationship of principal and agent
or of partnership, or of joint venture by the parties hereto, it being
understood and agreed that no provision contained in this Lease nor any acts of
the parties hereto shall be deemed to create any relationship other than the
relationship of Landlord and Tenant.
15.18 Authority of Tenant. Each individual executing this Lease on
behalf of Tenant represents and warrants that he is duly authorized to deliver
this Lease on behalf of Tenant and that this Lease is binding upon Tenant in
accordance with its terms.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed the day and year first above written.
LANDLORD: TENANT:
2545 Central, LLC SpectraLink Corporation
By: /s/ XXXXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXXXX
------------------------------- -------------------------------
Xxxxxxx X. Xxxxxx
Vice President Name: Xxxxx X. Xxxxxxxx
Authorized Agent for Landlord -----------------------------
Title: CFO
----------------------------
STATE OF COLORADO )
) ss. [STAMP]
COUNTY OF BOULDER )
The foregoing instrument was acknowledged before me this 1st day of
October, 2001 by Xxxxxxx X. Xxxxxx, as Vice President and Authorized Agent of
2545 Central, LLC.
Witness my hand and official seal. /s/ XXXXXXXX X. XXXX
My commission expires: April 11, 0000
Xxxxxx Xxxxxx
XXXXX XX XXXXXXXX )
) ss.
COUNTY OF BOULDER )
The foregoing instrument was acknowledged before me this 28th day of
September, 2001 by Xxxxx X. Xxxxxxxx, as CFO of SpectraLink Corporation.
Witness my hand and official seal. /s/ XXXXX XXXXX
My commission expires: 2/10/04
Notary Public
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EXHIBIT A
FLATIRON INDUSTRIAL PARK, FILING 4, LOT 5
EXHIBIT B
LOCATION OF DEMISED PREMISES WITHIN BUILDING
EXHIBIT B
[5766 CENTRAL AVENUE FIRST FLOOR PLAN]
EXHIBIT C
NOTICE OF NON-LIABILITY FOR MECHANICS' LIENS
Pursuant to C.R.S. Section 00-00-000, [Landlord], the owner of these premises,
located at [Building address], Boulder, Colorado, hereby gives notice to all
persons performing labor or furnishing skill, materials, machinery, or other
fixtures in connection with any construction, alteration, removal, addition,
repair or other improvement on or to these premises, that the owner shall not be
liable therefor and the interests of said owner shall not be subject to any lien
for the same.
EXHIBIT D
FORM OF
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT is entered into as of the ______ day of _______________,
______, among _________________________________ ("Landlord"); whose address is
c/o Flatiron Park Company, 0000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000, _____________
__________________________ ("Tenant"), whose address is ________________________
___________________________________, and _______________________________________
("Lender"), whose address is __________________________________________________.
RECITALS
A. Landlord is the owner or the ground lessee of the real property
described on Exhibit A attached hereto (the "Property").
B. Pursuant to a certain Lease dated _____________________, _________
(the "Lease"), Landlord has leased to Tenant all or a portion of the Property.
C. Financing for the Property is to be provided by a loan to be made by
Lender to Borrower (the "Loan"). The Loan will be secured, in part, by a Deed of
Trust (the "Deed of Trust") from Landlord to the Public Trustee of Boulder
County, Colorado, for the Use and benefit of Lender.
D. The parties wish to provide for subordination of the Lease to the
Deed of Trust, for the continuation of Tenant's right to occupy the Property so
long as no default exists under the Lease, notwithstanding any foreclosure of
the Deed of Trust, and for Tenant's attornment to any person or entity who may
acquire title to the Property upon or in lieu of foreclosure of the Deed of
Trust.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
TERMS AND CONDITIONS
1. Status of Lease. Tenant represents and warrants to Lender that the
Lease has been duly authorized, executed and delivered by Tenant. Landlord and
Tenant each represent and warrant to Lender that the lease is in full force and
effect and has not been modified or amended in any way, and neither party to the
Lease is in default with respect to such party's obligations under the Lease as
of the date of this Agreement.
2. Assignment of Landlord's Interest in Lease. Tenant acknowledges
that, pursuant to the Deed of Trust, Landlord has assigned all of the rights and
benefits (but none of the obligations) of Landlord under the Lease to Lender.
Upon notice from Lender that Lender has revoked its revocable waiver of Lender's
rights under the Deed of Trust, and until subsequent notice from Lender to fine
contrary, Tenant shall pay all rent and other sums coming due under the Lease
directly to Lender or in accordance with Lender's instructions, notwithstanding
any contrary instruction which Tenant may receive from Landlord. Landlord hereby
expressly authorizes Tenant to make such payments directly to
Lender and agrees that the rights of Tenant under the Lease will in no way be
prejudiced or impaired by reason of Tenant's compliance with any such notice
from Lender.
3. Subordination of Lease. Tenant hereby subordinates the Lease, and
all of Tenant's right, title and interest in and to the Property, to the Deed of
Trust and to any and all increases, renewals, modifications, extensions,
substitutions, replacements and/or consolidations of the Deed of Trust. The
lien of the Deed of Trust shall, with respect to all amounts now or at any time
hereafter secured by such lien (including amounts in excess of the principal
face amount of the Note referred to in the Deed of Trust) be senior and superior
in all respects to any interest of Tenant in the Property.
4. Non-Disturbance. Lender agrees that so long as Tenant is not in
default under the Lease and no right exists under the terms of the Lease whereby
the owner of the Property is entitled to terminate the Lease, the Lease will not
be terminated, and Tenant will not be disturbed in its possession of the
Property, by or as a result of any foreclosure of the Deed of Trust or any
conveyance in lieu of any such foreclosure. Nothing in this paragraph shall
prevent Lender from giving any notice to Tenant required by law in connection
with any such foreclosure, or joining Tenant as a party in any judicial
foreclosure action, but no such notice and no such joinder shall have any effect
inconsistent with the first sentence of this paragraph.
5. Attornment. Tenant shall attorn to, and recognize as Tenant's
landlord under the Lease, Lender or any other person who may acquire title to
the Property upon foreclosure of the Deed of Trust or by conveyance in lieu of
such foreclosure. The provisions of this paragraph shall be self-executing and
no further writing or other formal act of attornment shall be required, but
Tenant shall, upon the request of any person so acquiring title to the Property,
execute and deliver to such person an instrument in recordable form
acknowledging such attornment, but not otherwise modifying or amending Tenant's
obligations under the Lease. From and after any such attornment, Lender or any
other person who may acquire title to the Property upon or in lieu of a
foreclosure of the Deed of Trust shall be bound to Tenant under all of the
terms, covenants and conditions of the Lease; provided, however, that Lender or
such other person shall not be (a) liable for any act or omission of any prior
landlord (including Landlord); (b) bound by Tenant's payment to any prior
landlord (including Landlord) under the Lease of any rents beyond that due for
the then-current rent period; (c) liable for the return or application of any
security deposits unless Landlord delivers such deposits to Lender or such other
person; (d) bound by any amendment or modification to the Lease made without
Lender's written consent, which consent shall not be unreasonably withheld; or
(e) subject to any offsets or deficiencies which Tenant might be entitled to
assert against any prior landlord (including Landlord).
6. Notice and Cure Rights. Notwithstanding anything to the contrary in
the Lease, Tenant agrees that it shall not commence any action against Landlord
or otherwise pursue any right or remedy against Landlord in consequence of a
default by Landlord under the terms and provisions of the Lease unless written
notice of such default is given to Lender. Tenant further agrees that Lender
shall have the right, but shall not be obligated, to cure such default on behalf
of Landlord within thirty (30) days after receipt of such notice. Tenant further
agrees not to invoke any of its remedies under the Lease (except in the case of
emergency repairs) unless such default shall remain uncured at the expiration of
the thirty (30) day period after such notice of default is given to Lender, or
if such default cannot reasonably be cured within such thirty (30) day period,
unless the cure of such default is not commenced within such thirty (30) day
period and thereafter prosecuted diligently to completion. In addition to such
notice and cure rights, Tenant agrees that if the Event of Default is one that
Lender cannot reasonably cure, such Event of Default shall be considered
excused.
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7. Casualty. Notwithstanding anything to the contrary that may be
contained in the Lease, Lender shall have the right, in its sole discretion, to
apply any insurance proceeds received as a result of any casualty to the
Property to reduce the mortgage or debt owed to Lender.
8. Responsibility. Neither this Agreement nor the Deed of Trust shall,
prior to Lender's succession to Landlord's interest in the Property, through
foreclosure, assignment in lieu of foreclosure, or a possessory action, operate
to place responsibility for the control, care, management or repair of the
Property upon Lender, or impose upon Lender any responsibility for the
performance of the terms and conditions of the Lease.
9. Notices. Any notice required or permitted to be given under this
Agreement must be in writing and will be deemed given upon personal delivery, or
on the third business day after mailing by registered or certified United States
mail, postage prepaid, to the appropriate party at such party's address set
forth on the first page of this Agreement. Any party may change such party's
address for future notices by notice to the other parties in accordance with
this paragraph.
10. Real Covenants: Successors and Assigns. The provisions of this
Agreement shall be real covenants running with title to the Property and to the
leasehold estate created by the Lease, and shall bind and benefit the parties
hereto and their respective successors and assigns.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
LANDLORD:
By:
-------------------------------------
Title:
----------------------------------
TENANT:
By:
-------------------------------------
Title:
----------------------------------
LENDER:
By:
-------------------------------------
Title:
----------------------------------
3
STATE OF COLORADO )
) ss.
COUNTY OF ________ )
The foregoing instrument was acknowledged before me this _______ day of
_________________, by ___________________, as __________________________________
of _____________________________.
Witness my hand and official seal.
My commission expires:
--------------------------------
--------------------------------------
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF ________ )
The foregoing instrument was acknowledged before me this _______ day of
_________________, by ___________________, as __________________________________
of _____________________________.
Witness my hand and official seal.
My commission expires:
--------------------------------
--------------------------------------
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF ________ )
The foregoing instrument was acknowledged before me this _______ day of
_________________, by ___________________, as __________________________________
of _____________________________.
Witness my hand and official seal.
My commission expires:
--------------------------------
--------------------------------------
Notary Public
4
EXHIBIT E
FORM OF
SUBLEASE, ASSUMPTION AND CONSENT AGREEMENT
(Sublease of Portion of Premises)
This Sublease, Assumption and Consent Agreement is entered into this
____ day of _______________, 199__, by and between __________________________, a
Colorado _____________ ("Landlord"), __________________________________
("Sublandlord") and __________________________________ ("Subtenant").
RECITALS
A. Sublandlord is a tenant in ______________________, located at
_______________________________, Boulder, Colorado (the "Premises").
B. Landlord and Sublandlord have entered into a Lease Agreement dated
_______________, 199__, attached hereto as Exhibit A and incorporated herein by
reference (the "Lease"). The term of the Lease extends through _______________,
199__.
C. Subtenant desires to sublease from Sublandlord and Sublandlord
desires to sublease to Subtenant that portion of the leased Premises described
on Exhibit B attached hereto (the "Subleased Premises") for the term to commence
on __________________, 199__ and continue through __________________, 199__
(the "Sublease Term").
D. Sublandlord and Subtenant have entered into a Sublease Agreement for
the Subleased Premises, dated as of_________________, 199__ (the "Sublease"),
which is attached hereto as Exhibit C.
E. In order to induce Landlord to consent to the Sublease, Subtenant is
willing to assume the obligations of Sublandlord and to be bound by the terms of
the Lease with respect to the Subleased Premises.
F. Landlord is willing to accept and consent to such sublease and
assumption upon the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the payment of rent and the
performance of the covenants and agreements by the parties as hereinafter set
forth, the parties agree as follows:
1. Sublease and Delivery of the Subleased Premises. Sublandlord
subleases to Subtenant, effective as of the _________ day of
____________________, 199__ (the "Effective Date"), all of Sublandlord's right,
title and interest in the Subleased Premises during the Sublease Term.
Sublandlord will deliver possession of the Subleased Premises to Subtenant on
the Effective Date.
2. Assumption and Acceptance of the Subleased Premises. Subtenant
assumes and agrees to perform each and every obligation of Sublandlord under the
Lease that arises on or after the Effective Date as to the Subleased Premises.
Subtenant will accept the Subleased Premises in its condition as of the
Effective Date and acknowledges that it shall have no claim against Landlord for
any matters arising prior to the Effective Date.
3. Sublandlord's Representations and Warranties. Sublandlord represents
and warrants that:
a. The Lease is in full force and effect, and unmodified,
except as provided in this Sublease, Assumption and Consent Agreement;
b. Sublandlord's interest in the Lease is free and clear of
any liens, encumbrances, or adverse interests of third-parties; and
c. Sublandlord possesses the requisite legal authority to
assign its interest in the Lease.
4. Sublandlord's and Subtenant's Responsibility for Payment of Rent and
Other Charges. Although Sublandlord shall be responsible to xxxx Subtenant for
rent and other charges associated with the Subleased Premises, Subtenant agrees
to make all payments directly to Landlord for any rent and all other charges,
fees and expenses payable to Landlord pursuant to the Lease for or attributable
to the Subleased Premises. Sublandlord agrees to make all payments to Landlord
for the rent and all other charges, fees and expenses payable to Landlord
pursuant to the Lease for or attributable to the remaining portion of the leased
Premises.
5. Subsequent Amendment of Lease or Sublease. During the Sublease
Term, neither the Lease nor the Sublease may be subsequently amended or modified
by without the express written consent of Landlord, Sublandlord, and Subtenant.
6. Tenant Improvements. Subtenant shall not make any alterations to the
Subleased Premises or undertake any tenant improvements without obtaining a
prior written approval of Landlord and Sublandlord, pursuant to the Lease.
Subtenant shall be solely responsible for the cost of any modification to the
Subleased Premises and/or restoring the Subleased Premises to its original
condition at the expiration or earlier termination of the Lease or Sublease.
7. Sublandlord's Responsibility for Obligations Under Lease.
Notwithstanding Subtenant's assumption of Sublandlord's obligations under the
Lease (including obligations relating to the Subleased Premises), Sublandlord
shall remain fully liable, jointly and severally, to Landlord for the
performance of each and every obligation under the Lease, and such assumption
shall in no way release Sublandlord from said obligations.
8. Enforceability. The provisions of this Sublease, Assumption and
Consent Agreement shall be binding upon and inure to the benefit of the parties
and their respective successors and permitted assigns.
9. Landlord's Consent. Landlord consents to this Sublease, Assumption
and Consent Agreement on the express conditions that such consent will not be
deemed a consent to any subsequent sublease or assignment but, rather, any
subsequent sublease or assignment will require the consent of Landlord pursuant
to the Lease.
10. Entire Agreement. This Sublease, Assumption and Consent Agreement
embodies the entire agreement of Landlord, Sublandlord, and Subtenant with
respect to the subject matter contained herein and supersedes any prior
agreements, whether written or oral, with respect to the subject matter
contained
2
herein. This Sublease, Assumption and Consent Agreement may be modified only by
written instrument duly executed by Landlord, Sublandlord and Subtenant.
11. Notices. All notices required to be given or desired to be given
hereunder shall be in writing and shall be deemed duly served for all purposes
by delivery in person or by mailing a copy thereof, postage prepaid, addressed
to:
Landlord: ----------------------------------
----------------------------------
----------------------------------
Sublandlord: ----------------------------------
----------------------------------
----------------------------------
Subtenant: ----------------------------------
----------------------------------
----------------------------------
or at such address as such party shall subsequently designate by notice given in
accordance with this paragraph.
IN WITNESS WHEREOF, the parties have executed this Sublease, Assumption
and Consent Agreement on the day and year first above written.
LANDLORD: SUBLANDLORD
--------------------------------- ---------------------------------
By: By:
------------------------------ ------------------------------
Name: Name:
---------------------------- ----------------------------
Title: Title:
--------------------------- ---------------------------
SUBTENANT:
---------------------------------
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
3
EXHIBIT F
FORM OF
ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT
(ASSIGNMENT OF ENTIRE PREMISES)
This Assignment, Assumption and Consent Agreement is entered into this
______ day of ______________, 199__, by and between ________________________
("Landlord"), [TENANT]; a _____________________ ("Assignor"), and [NEW TENANT],
a _______________________ ("Assignee").
RECITALS
A. Assignor is a tenant in the building located at
________________________________________, Boulder, Colorado (the "Premises").
B. Landlord and Assignor have entered into a lease dated
______________________________ attached hereto as Exhibit A and incorporated
herein by reference (the "Lease"). The term of the Lease extends through
_______________________.
C. Assignor desires to assign to Assignee and Assignee desires to
assume from Assignor the Lease for the remainder of the term.
D. Landlord is willing to accept and consent to such assignment and
assumption upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the payment of rent and the
performance of the covenants and agreements by the parties as hereinafter set
forth, the parties agree as follows:
1. Assignment and Delivery of the Premises. Assignor assigns to
Assignee, effective as of the ________________________________ (the "Effective
Date"), all of Assignor's right, title and interest in the Lease. Assignor shall
deliver possession of the Premises to Assignee on the Effective Date. Any
adjustments or prorations in rent or other charges due under the Lease shall
be made between Assignor and Assignee, and under no circumstances shall Landlord
have any obligation to refund any amounts paid by either Assignor or Assignee as
a result of this Agreement.
2. Assumption and Acceptance of the Premises. Assignee assumes and
agrees to perform each and every obligation of Assignor under the Lease that
arises on or after the Effective Date. Assignee will accept the Premises in
its condition as of the Effective Date and acknowledges that it shall have no
claim against Landlord for any matters arising prior to the Effective Date.
3. Assignor's Representations and Warranties. Assignor represents and
warrants that:
a. The Lease is in full force and effect, and unmodified,
except as provided in this Assignment, Assumption and Consent
Agreement;
b. Assignor has not sold, conveyed, transferred, assigned,
encumbered, or granted any lien or interest in the Lease; and
c. Assignor possesses the requisite legal authority to assign
its interest in the Lease.
4. Subsequent Amendment of Lease. The Lease may not be subsequently
amended or modified by Landlord and/or Assignee without the express written
consent of Assignor. Assignor hereby consents to any subsequent amendment of the
Lease provided Assignor is given fifteen (15) days notice of such amendment and
does not object thereto within said fifteen-day period.
5. Assignor's Responsibility for Obligations Under Lease.
Notwithstanding Assignee's assumption of Assignor's obligations under the Lease,
Assignor shall remain fully liable, jointly and severally, to Landlord for the
performance of each and every obligation under the Lease, and such assumption
shall in no way release Assignor from said obligations. Assignee shall indemnify
and hold harmless Assignor from and against any and all claims of Landlord
pursuant to this Section 5 and pursuant to any obligations under the Lease which
shall accrue from and after the Effective Date.
6. Enforceability by Landlord and Assignor. The provisions of this
Assignment, Assumption and Consent Agreement inure to the benefit of Landlord
and Assignor and shall be enforceable by Landlord and Assignor.
7. Landlord's Consent to Assignment. Landlord consents to this
Assignment, Assumption and Consent Agreement on the express condition that such
consent will not be deemed a consent to any subsequent assignment but, rather,
any subsequent assignment or sublease will require the consent of Landlord
pursuant to the Lease. Any subsequent assignment or sublease of the Lease shall
also require the consent of Assignor, which consent shall not be unreasonably
withheld. Assignor hereby consents to any subsequent assignment or sublease of
the Lease provided Assignor is given fifteen (15) days notice of such assignment
or sublease and does not object thereto within said fifteen-day period.
8. Security Deposit. Pursuant to the Lease, Assignor has deposited with
Landlord a security deposit in the amount of $_________. Assignor hereby assigns
all right, title, interest, and claim in and to said security deposit to
Assignee, and Landlord shall have no further liability to Assignor with respect
to said security deposit. Landlord shall continue to hold the security deposit
pursuant to the Lease, and at the end of the term of the Lease, shall refund
said security deposit or any portion thereof to Assignee as provided therein.
9. Additional Rent Reconciliation. Assignee acknowledges that
additional rent payments (triple net charges) paid to Landlord pursuant to the
Lease are estimates only, and are subject to reconciliation by Landlord.
Landlord's annual reconciliation for 199__ will be completed in approximately
April 199__, and a copy of said reconciliation transmitted to Assignee. Any
shortfall in additional rent which is owing to Landlord shall be paid by
Assignee within fifteen (15) days after such reconciliation is transmitted to
Assignee, and any overpayment which is owing by Landlord shall be paid to
Assignee at the time such reconciliation is transmitted. Any adjustment or
proration between Assignor and Assignee with respect to said additional rent
reconciliation shall be the responsibility of Assignor and Assignee, not
Landlord.
10. Entire Agreement. The Assignment, Assumption and Consent Agreement
embodies the entire agreement of Landlord, Assignor, and Assignee with respect
to the subject matter contained herein, and this Agreement supersedes any prior
agreements, whether written or oral, with respect to the subject
2
matter contained herein. This Assignment, Assumption and Consent Agreement may
be modified only by written instrument duly executed by Landlord, Assignor, and
Assignee.
11. Notices. All notices required to be given or desired to be given
hereunder shall be in writing and shall be deemed duly served for all purposes
by delivery in person or by mailing a copy thereof, postage prepaid, addressed
to:
Landlord: c/o Flatiron Park Company
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Assignor:
--------------------------
--------------------------
--------------------------
Assignee:
--------------------------
--------------------------
Xxxxxxx, XX 00000
or at such address as such party shall subsequently designate in writing.
IN WITNESS WHEREOF, the parties have executed this Assignment,
Assumption and Consent Agreement on the day and year first above written.
LANDLORD: ASSIGNOR:
--------------------------------- ---------------------------------
By: By:
------------------------------ ------------------------------
Name: Name:
---------------------------- ----------------------------
Title: Title:
--------------------------- ---------------------------
ASSIGNEE:
---------------------------------
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
3
EXHIBIT G
FORM OF
ESTOPPEL CERTIFICATE
TO:
-------------------------------
-------------------------------
-------------------------------
FROM:
-------------------------------
-------------------------------
-------------------------------
RE: ("Tenant")
-------------------------------
("the Premises")
-------------------------------
Ladies and Gentlemen:
The undersigned is the (check one) Tenant (__) or Guarantor (__) under
that certain Lease of the Premises consisting of approximately ___________
rentable square feet in the building located at _________________, between
Tenant and the Landlord. The undersigned hereby certifies, at the date hereof,
as follows:
1. The Lease identified above is the Lease with _______________________
as Landlord. A true, correct and complete copy of the Lease and all amendments,
guaranties, security agreements, subleases and other related documents are
attached hereto as Schedule "1" and incorporated herein by this reference. Said
Schedule "1" consists of the following: ______________________________________
(describe documents and set forth number of pages). There are no other
agreements or understandings between such Landlord and Tenant and/or Guarantor
which related to the Property.
2. The Lease sets forth the entire agreement between the undersigned
Tenant and Landlord with respect to the leasing of the Premises, including but
not limited to all understandings and agreements relating to the construction or
installation of any leasehold improvements by the Landlord and to the conditions
precedent to occupancy of the Premises by the undersigned.
3. Tenant entered into occupancy of the Premises described in the Lease
on _______________, 19___, and is in possession of and occupies those Leased
Premises for purposes permitted under the Lease.
4. The commencement date under the Lease was ________________________,
19___.
5. The Lease Term will expires on _____________________________, _____.
Tenant has no rights to renew or extend the Term of the Lease or any expansion
rights under the Lease, except those (if any) set forth in the Lease.
6. Tenant has deposited with Landlord the sum of
___________________________________ Dollars ($_______) in cash as security
deposit or for other purposes stated in the Lease.
7. No rents or charges have been paid in advance, except for the
following rents or charges which have been paid to the date specified:
_____________________________ Dollars ($_______) paid to __________________,
19___.
8. The current Basic Rent is $_________________ per month and the
current total payment for Basic Rent and Monthly Deposits of Additional Rent is
$______________________ per month.
9. Landlord has not, as an inducement, assumed any of Tenant's Lease
obligations and has made no agreements with Tenant covering free rent, partial
rent, rebate of rental payments or any other type of rental concession, except
as follows: __________________________________________________________________
______________________________________________________________________________.
10. The undersigned certifies that Tenant is required to pay the pro
rata share of operating expenses as set forth in the lease. The undersigned
certifies that this pro rata share is ________%. In 19___, the Tenant paid to
Landlord _____________________________ Dollars ($_______) for real property
taxes, and ________________________________ Dollars ($_______) for operating
expenses. Moreover, Tenant is required to pay for all utilities including water
and sewer used in and upon the Premises, and is responsible for all repairs and
maintenance to the HVAC/mechanical systems.
11. All Minimum Rent and other rentals under the Lease including the
payment of any taxes, utilities, common area maintenance payments or other
charges that are currently due have been paid, except ________________________
____________________, all such rentals are being paid on a current basis without
any claims for offsets or deductions.
12. The Lease (including all exhibits) and all related agreements and
documents listed above are duly authorized, executed and delivered by Tenant
and/or Guarantor and are in full force and effect and have not been assigned,
modified, supplemented or amended except as indicated in paragraph 1 above; nor
have the undersigned Tenant's rights in or under such Lease been assigned.
13. The Lease and the other agreements listed above represent the
entire agreement between the parties as to the Premises.
14. No person or firm other than the undersigned is in possession of
the Premises, and to the best of the undersigned's knowledge, no person or firm
other than the Landlord has a future right to the Premises.
15. The undersigned is not the subject of any pending bankruptcy,
insolvency, debtor's relief, reorganization, receivership or similar
proceedings, nor is the subject of a ruling with respect to any of the
foregoing.
16. Except as may be specifically set forth in the Lease, Tenant does
not have any right to renew or extend the Lease Term nor any option or
preferential right to purchase all or any part of the Property or all or any
part of the building of which the Premises is a part, nor any right, title or
interest with respect to the Property other than as Tenant under the Lease.
2
17. There are no uncured defaults by Landlord under the Lease or any of
the related agreements described above, and Tenant knows of no event or
conditions which if uncured shall with the passage of time or notice or both,
would constitute a default by Landlord under the Lease or any of the related
agreements described above. There are no existing defenses or offsets which the
undersigned has against the enforcement of the Lease by Landlord.
18. The undersigned represents that the improvements and space required
to be furnished according to the Lease have been duly delivered by the Landlord
and accepted by the Tenant, and the Premises is in good condition and not in
need of repair as of the date of this Certificate.
19. All conditions of the Lease to be performed by Landlord and
necessary to the enforceability of the Lease have, to the undersigned Tenant's
knowledge, been satisfied.
20. As of the date hereof, the condition of the Premises is
satisfactory and adequate.
21. The undersigned represents that the Landlord has not guaranteed the
Lease or any of Tenant's obligations thereunder or otherwise provided Tenant
with inducement that the Landlord will pay for Tenant's obligation(s) in the
event that Tenant fails to pay any obligation that Tenant is required to pay
under the terms of the Lease.
22. The undersigned has been advised that _________________________
intends to sell the Property, including the building in which the Premises is
located to ________________________________ or its assigns ("Purchaser"), and
that in connection with such sale transaction, Purchaser intends to enter into a
mortgage loan with ____________________________________________________
("Lender"), or another reputable lending institution, which loan will be secured
by the Property, including the building, all associated real estate and all
tenant leases in the building. Accordingly, Tenant understands that this
Certificate shall be relied upon by Purchaser and by Lender, or by such other
lending institution as may be involved in the mortgage loan transaction.
23. The undersigned has not dumped, spilled or in any other manner
discharged or deposited any hazardous waste substances on the Property. The
undersigned has received no notice of, and has no knowledge of, any violation or
claimed violation of any law, rule or regulation relating to hazardous waste
substances. The undersigned has not used, and the undersigned has no knowledge
of any use of petroleum distillation or other hazardous material.
It is understood that you require this Certificate from the undersigned
as a condition to the purchase of the Property from the Landlord, and that you
are relying on this Certificate. After receipt of notice from Landlord that the
sale has been completed, the undersigned will honor the assignment of Landlord's
interest in the Lease.
Dated this ________ day of ________________________, 19_____.
TENANT___GUARANTOR
(Check one)
By:
-----------------------------
Title:
--------------------------
3
STATE OF COLORADO )
) ss.
COUNTY OF )
----------
The foregoing instrument was acknowledged before me this ______ day of
_______________, by _____________________, as _____________ of
_____________________________.
Witness my hand and official seal.
My commission expires:
------------------------------
-----------------------------
Notary Public
4
EXHIBIT H
DECLARATION OF PROTECTIVE COVENANTS
[Attached]
DECLARATION OF PROTECTIVE COVENANTS
FOR THE FLATIRON INDUSTRIAL PARK
FILING NUMBER FOUR
Filing #4
Film #1144
Reception #425293
Recorded Date: 12/04/80
1
This declaration is made this 1st day of August, 1980, by Flatiron Industrial
Park Co., a Colorado partnership (hereinafter called "FIPCO").
WHEREAS, FIPCO is the owner of all that certain real property (hereinafter
called the "Park"), which is situated in the City of Boulder, County of Boulder,
State of Colorado, and more particularly described on Exhibit A (reduced copy of
Plat), which is attached hereto and incorporated herein by reference, which real
property is more commonly known as a subdivision named Flatiron Industrial Park
Filing No. 4;
WHEREAS, FIPCO desires and intends to develop the Park as a Landscaped
Industrial Center, and to impose thereon mutually beneficial restrictions under
a general plan of improvement for the benefit of all of the Park, the
improvements thereon and the future owners thereof.
NOW, THEREFORE, pursuant to a general plan of improvement for the Park, FIPCO
hereby declares that all of the property in the Park is and shall be held,
conveyed, hypothecated, encumbered, leased, rented, used, occupied and improved
subject to the covenants, conditions, restrictions and limitations hereinafter
set forth, all of which are declared to be in furtherance of a plan for the
subdivision, improvement, and the lease or sale of Sites in the Park, and are
established for the purpose of enhancing the value, desirability, and
attractiveness of said property and every part thereof. All of said covenants,
conditions, restrictions, and limitations shall run with said real property and
every part thereof shall bind all parties having or acquiring any right, title
or interest in said real property or any part thereof, shall be for the benefit
of each owner of any portion of said property, or any interest therein, and
shall inure to the benefit of and bind each successor in interest of the owners
thereof.
DEFINITIONS
a. "Site" or "Sites"
means a contiguous area of land in the same record ownership whether or not
shown as one parcel on the Map, or as a combination of parcels or portions
thereof.
b. "Building"
means the principal structure or structures on any Site, including all
projections or extensions thereof, and all garages, outside platforms,
outbuildings, docks, canopies, porches and the like.
2
c. "Improvements"
means all improvements on a Site, including, without limitation, buildings,
loading areas, trackage, parking areas, pavement, poles, fences, signs, walks,
driveways, paths, aerial antennae, and landscaping.
d. "Mortgage."
As used herein, the term "mortgage" shall be deemed to include a deed of trust,
and the term "mortgagee" shall be deemed to include the trustee and/or the
beneficiary of a deed of trust, as the context may require.
e. "Owner"
means any person, firm or corporation, including FIPCO, holding legal title to a
Site as shown by the Official Records of the County of Boulder, and any tenant
or other occupant of a Site; provided, however, that a mortgagee holding a
recorded security interest in a Site shall not be deemed an Owner.
f. The "Park"
means the real property described in Exhibit A hereto.
1. GENERAL PURPOSES:
FIPCO hereby declares the purpose of this Declaration to be to ensure
establishment of a general plan for the development and use of the Park, to
protect the Owner of each Site against such improper development or use of other
Sites as would depreciate the value of such Owner's Site, to prevent the
construction of Buildings or other improvements having a design or mode of
construction which is unsuitable to or unharmonious with said general plan, and,
generally, to provide for a landscaped industrial park of high quality.
2. ARCHITECTURAL APPROVAL:
a. Approval of Plans.
No Improvements (as herein defined, including landscaping) shall be constructed
or substantially altered on any Site unless FIPCO shall first have issued its
written approval of plans and specifications therefor, which plans and
specifications shall clearly show, to scale, at least the following: a site plan
(plot layout); all exterior elevations, exterior mechanical apparatus and
proposed screening thereof; specification for exterior materials to be used
(including the color of such materials); structural design; signs; floor plans;
and details of landscaping, fencing and screening, or any proposed alteration
thereof. At least thirty (30) days prior to commencement of any work
contemplated in any plans and specifications, such plans and specifications
shall be submitted by the Owner of the Site or by such Owner's authorized agent,
accompanied by a written request, executed by the Owner of the Site, for
3
FIPCO approval. Any significant changes in the plans and specifications first
submitted shall likewise be submitted. FIPCO shall base its approval (or
disapproval) on considerations which shall include, among other things:
compliance of the plans and specifications with all express requirements of
these covenants; the adequacy of Site dimensions; the adequacy of structural
design; whether the proposed design is of reasonable aesthetic appeal; the
effect of the proposed Improvements and their location and use on the
development or maintenance of Improvements on neighboring Sites; the proposed
operations and uses; the effect upon neighboring Sites of the topography, grade
and finished ground elevation proposed for the Site; coordination of landscaping
and aesthetic appeal within the Site or with neighboring Sites; facing of the
main elevation with respect to nearby streets; style and design of signs; the
extent to which the design of all proposed elevations is integrated.
b. Presumptive Approval.
If FIPCO fails to give notice of approval or disapproval of plans and
specifications submitted to it within thirty (30) days after receiving same, it
shall be conclusively presumed that FIPCO has approved such plans and
specifications, subject, however, to all the restrictions set forth in this
Declaration. Any Building which has been completed prior to commencement of suit
to enforce the within covenants and recording of lispendens giving notice of
said suit, shall be conclusively deemed to comply with the requirements of the
within covenants.
c. Non-liability.
Neither FIPCO, its partners, nor any employees thereof shall be responsible to
the record Owner or to any other person, firm or corporation for the structural
design or architectural validity of all or any portion of any plans and
specifications submitted to FIPCO, and neither FIPCO, its partners nor any
employee thereof shall be liable to any Owner or any person having any interest
in a Site for any act or failure to act on any application submitted to FIPCO.
Each Owner agrees, by accepting title or any interest in any Site, that FIPCO,
its partners, and each employee thereof shall be immune from suit or liability
in accordance with the foregoing.
d. FIPCO may at any time resign its duties
under paragraphs 2a or 2b hereof, and designate an architectural control
committee to perform its duties under those paragraphs.
Resignation and appointment shall be accomplished by mailing written notice
thereof to each Owner in fee of a Site in the Park. The committee shall be
composed of three persons and shall make decisions by majority vote. The
committee shall have the same rights, duties, and immunities as are granted to
FIPCO under this Section 2. In the event of the death, incapacity or resignation
of a committee member, FIPCO shall appoint a successor.
In the event that FIPCO is no longer in existence, and no architectural control
committee has been appointed, or there is a vacancy in the committee, then the
membership of the
4
committee shall be filled by an election held by the fee Owners of the Sites in
the Park, and those lots located within Flatiron Industrial Park Filing No. One,
Flatiron Industrial Park Filing No. Two, Flatiron Industrial Park Filing No.
Three, and Xxxx 0 xxx 0 xx Xxxxxxxx Xxxxxxxxxx Xxxx Filing West. Any fee Owner
may call the election by mailing written notice of the time and place of the
election to each other fee Owner at least twenty (20) days in advance of the
time set. The place of the election shall be in Boulder County, Colorado, and
both time and place shall be reasonable. At the election, there shall be one
vote for each Site in the Park. Each member be elected shall be elected
separately, and a majority of the votes cast shall be required for election.
Whenever mailing of notice is required by the covenants, the mailing shall be
deemed sufficient if addressed to the particular Owner at the address of the
Owner shown by the records of the Boulder County Treasurer or Assessor or any
other county official. FIPCO or the architectural control committee may charge a
reasonable fee for examining plans and specifications.
3. BUILDING SPECIFICATIONS:
All buildings and Improvements shall be constructed and maintained by the Owner
in accordance with the following standards, unless an exception is approved in
writing by FIPCO.
a. Materials.
All Buildings erected on any building Site shall have either concrete, stone, or
brick exterior walls. Acceptable concrete wall materials shall include concrete
block, prestressed concrete, pre-cast concrete panels, and poured-in-place or
tilt-up concrete components. However, glass/or wood may be used for up to
twenty-five percent (25%) of the wall surface area. (Doors, windows and trim
shall not be considered as a part of the exterior walls.) Concrete twin tee wall
components shall not be acceptable.
b. Paint.
Exterior walls shall be painted or otherwise finished in a manner acceptable to
FIPCO. After initial painting color is approved and applied, the exterior wall
paint colors may not be changed without written approval of FIPCO. Colors and
finishes shall harmonize with the natural surroundings. Exterior trim and sashes
of windows and doors must either be of a natural "earth tone" color or painted
to match the surrounding exterior walls.
c. Electrical and Mechanical.
All electrical and mechanical apparatus, equipment fixtures (other than lighting
fixtures), conduits, ducts, flues, utility meters, downspouts, vents and pipes
located on the exterior of any Building shall be concealed from view from
streets and the ground level of Buildings on other Sites and shall be
architecturally treated in a manner acceptable to FIPCO. All roof apparatus
shall be screened by roof screening or a parapet that shall be a minimum of two
inches higher than the apparatus itself. Such screens must have approval by
FIPCO.
5
d. Building Elevation.
Minimum first floor elevations for all Buildings in the Park shall be subject to
approval by FIPCO dependent upon location with the Park. Basements, pipe chases,
sumps or other such construction below this elevation shall be floodproofed in a
manner approved by FIPCO.
e. Utilities.
All on-site electrical, telephone, and other utility lines shall be underground,
and shall not be exposed on the exterior of any Building or improvement, except
as specifically authorized in writing by FIPCO.
f. Continuity of Construction.
All structures commenced in the Park shall be prosecuted diligently to
completion and shall be completed within twelve (12) months of commencement
unless exception is granted in writing by FIPCO.
g. Loading Platforms
All loading platforms and areas facing streets must be screened in a manner
approved by FIPCO.
h. Signs.
Any Owner of any Building shall submit to FIPCO, or its designee, all plans for
signs to be erected, substituted, changed or modified on the premises, including
details of design, materials, locations, size, heights, color and lighting. No
sign shall be erected, substituted, changed or modified on the premises without
the prior written approval of plans and specifications therefor given by FIPCO,
or its designee.
i. Whenever approval of FIPCO is required
under this Section 3, such approval shall be applied for and granted in the
manner established by Section 2, relating to plans and specifications and items
requiring approval under Section 3 shall be included in specifications submitted
under Section 2.
4. SITE SPECIFICATIONS:
All Site Improvements shall be constructed and maintained by the Owner in
accordance with the following standards unless an exception is made by FIPCO.
6
a. Setback.
Minimum setback requirements from the street right-of-way line for all Buildings
shall be twenty (20) feet. Said twenty feet shall be landscaped and maintained
in accordance with a plan submitted to and approved by FIPCO. Access and egress
driveways will be allowed within the 20-foot setback strip. Minimum setback from
an interior lot line for all principal Buildings shall be forty (40) feet to the
side and forty-five (45) feet to the rear. Minimum setback for all accessory
Buildings and uses shall be fifty-five (55) feet to the front and twenty (20)
feet to the side and rear from the interior lot line.
b. Parking.
Any Owner of any building Site shall provide on the premises off-street
automobile parking facilities based on one 200 square-foot space for each 000
xxxxxx xxxx xx xxxxxxxx xxxxx xxxx. All off-street parking and access drives and
all loading areas shall be hard surfaced and properly graded to ensure proper
drainage.
c. Storage Areas.
Storage areas on any building Site for equipment, raw materials, semi-finished
or finished products shall be so shielded by a fence, shrubs, xxxxxx or other
foliage as to effectively screen the view of such storage area from the street
throughout the year.
d. Fences.
No fence, wall, hedge, shrub, plant or tree which obstructs sight lines at
elevations more than two (2) feet above the roadway shall be placed or permitted
to remain on any building Site within the triangular area formed by lot
boundaries adjacent to streets and a line connecting them at points twenty-five
(25) feet from the intersection of those lot boundaries.
e. Temporary Structures.
No temporary structure, excavation, basement, trailer or tent shall be
constructed or be permitted to remain in the subdivision, except as may be
reasonably necessary during construction or specifically authorized in writing
by FIPCO.
f. Landscaping.
FIPCO, or its responsible assignee, shall landscape and maintain not more than
two islands in Central Avenue at the entrances to the Park from 00xx Xxxxxx or
other major street. FIPCO, or its responsible assignee, shall xxxx each Owner in
fee of a Site and each Owner in fee of a Site shall promptly pay FIPCO an equal
share of the reasonable annual cost of maintenance of such islands.
Each Owner shall maintain the landscaping on its Site and all plantings thereon
in good health and appearance and replace dead or diseased specimens without
substantial alteration, (unless plans showing the substantial alteration are
submitted as provided in paragraph 2b) and shall
7
repair any damages thereto occurring by reason of any cause whatsoever. If an
Owner fails so to do, FIPCO, upon twenty (20) days written notice to such Owner,
shall have the right to enter such Site, by itself or by agents, and at such
Owner's expense to do an maintenance, repairs or restoration which may be
reasonably necessary. FIPCO shall charge such expense to the Owner and the Owner
shall pay such charge forthwith. The Owner shall, in addition to such charge,
pay all costs and expenses, including reasonable attorney's fees, incurred by
FIPCO in any legal proceeding brought to enforce its rights under this paragraph
4f.
Any Owner of a Site in fee may bring legal action to compel any Owner to comply
with his obligations under this paragraph 4f unless FIPCO has exercised it right
to perform such obligations and obtain reimbursement from the Owner.
Any Owner, tenant or occupant of any building Site agrees that the area between
the building lines as herein defined and the street property lines shall be used
only for either open landscaped and green areas, automobile parking areas (but
not truck parking areas), utility easements, service access to the Building, or
service access to a parking lot. Landscaped areas shall be done attractively
with live lawn, trees, shrubs and similar treatment, unless written exception is
made by FIPCO.
g. Drainage Easements.
Each Owner shall maintain any drainage easements on its Site as indicated on the
recorded plat without substantial alteration of the design as prepared and
constructed for FIPCO by others, and shall promptly repair any damage thereto
occurring by reason of any cause whatsoever. If any Owner fails so to do,
FIPCO, upon twenty (20) days written notice to such Owner, shall have the right
to enter such Site, by itself or by agents, and at such Owner's expense to do
any maintenance repairs or restoration which may be necessary. FIPCO shall
charge such expense to the Owner and the Owner shall pay such charge forthwith.
The Owner shall, in addition to such charge, pay all costs and expenses,
including reasonable attorney's fees, incurred by FIPCO in an legal proceeding
brought to enforce its rights under this paragraph 4g.
Any Owner of a Site in fee may bring legal action to compel any Owner to comply
with his obligations under this paragraph 4g unless FIPCO has exercised its
right to perform such obligations and obtain reimbursement from the Owner.
h. Appearance.
Each Owner, tenant or occupant of any building Site shall keep said building
Site and the Buildings, Improvements and appurtenances thereon in a safe, clean,
neat, wholesome condition, and shall comply in all respects with all
governmental statutes, ordinances, regulations, health and police and fire
requirements. Each such Owner, tenant or occupant shall remove, at its own
expense, any rubbish or trash of any character which may accumulate on its
building Site and shall keep unlandscaped areas maintained in a neat and
sightly manner. Rubbish, trash, garbage or other waste shall be kept only in
sanitary containers. All
8
trash containers are to be concealed from view from streets, and treated in a
manner acceptable to FIPCO. All equipment for the storage or disposal of such
material shall be kept in a clean and sanitary condition. Rubbish and trash
shall not be disposed of on the premises by burning in open fires. Trucks shall
not be parked between that part of a building which fronts on a street and the
street, except while loading or unloading is in progress.
i. Each Owner of a lot
(as shown on the recorded plat of the Park) shall pay on account of each lot
owned, an annual "litter disposal" fee to FIPCO. The annual litter disposal fee
paid to FIPCO by each Owner for each lot shall be $100.00 for each calendar year
during which these covenants are in effect, through 1987; and $175.00 for each
such year thereafter. Payment for each year shall be due February 1st of that
year. In the event of non-payment, FIPCO may bring suit to collect, and FIPCO
will, in addition to the fee, be entitled to recover all its costs and expenses,
including reasonable attorney's fees. FIPCO shall expend the fee for picking up
and disposing of litter and rubbish from the streets, entrance islands, and
drainage easements within the Park. FIPCO may, but shall not be required to,
expend amounts in excess of the annual fee for such services. FIPCO's obligation
to expend the annual fee is not intended as a substitute for regular trash
hauling and clean-up procedures by Owners; nor shall the existence of FIPCO's
obligation, or any failure of FIPCO to perform same, relieve any Owner from any
other obligation under these covenants; specifically but not as a limitation,
each Owner shall remain fully bound by the terms of paragraphs 4g and 4h, and
Section 5. In the event that FIPCO ceases to exist it may assign its obligations
and right to collect hereunder in writing, to the architectural control
committee, or terminate such obligations and the right to collect the annual
fee. The obligation of an Owner to pay the annual fee shall be only a personal
obligation of the Owner, and shall not constitute a lien against any site in the
Park unless the obligation is reduced to judgments and a transcript or other
evidence thereof is recorded as provided by law, in which event the lien of the
judgment shall have such priority as is provided by law with respect to judgment
rendered upon personal obligations. No successor Owner who purchases for value
shall be responsible for unpaid obligations of a prior Owner with respect to the
annual fee.
5. NUISANCE:
No noxious or offensive trades, services or activities shall be conducted on any
building Site nor shall anything be done thereon which may be or become an
annoyance or nuisance to the Owner, tenant or occupant of other building Sites
within the Flatiron Industrial Park by reason of unsightliness or the excessive
emission of fumes, odors, glare, vibration, gases, radiation, dust, liquid
waste, smoke or noise.
6. SPECIFICALLY UNACCEPTABLE USES:
No building Site nor any part thereof shall at any time be used for any of the
following purposes:
9
a. Dump or landfill.
b. Public incinerator.
c. Pet Store or Veterinary Hospital or Kennel or building place for animals.
d. Sewage Disposal Plant.
e. Riding Academy.
f. Rodeo.
g. Junk Yard.
h. Feed Lot or other use involving keeping of live animals.
i. So-called "mini-storage" or "mini-warehouses".
7. RIGHT TO CROSS OTHER SITES:
The various Owners of Sites in the Park and their assigns, shall have the right
to cross each Site in the Park in the designated setback areas between the
building lines and the property lines with equipment and personnel if such
crossing is reasonably necessary for the repair or construction of any utility
service or drainage facility. (The preceding sentence shall not give any right
to place permanent utility pipe or lines or drainage facilities in any area not
designated as an easement for such on the recorded plat of the Park or herein.)
The right to cross shall include the right to remove fences and landscaping.
However, any person or entity exercising any of the foregoing rights shall be
obligated promptly to restore the premises to a condition reasonably
approximating that prior to the crossing, after the work requiring the crossing
has been completed. The term "utility" as used in the preceding paragraph shall
encompass all types of utilities, including, but not as a limitation, water,
sewer, electricity, gas and telephone service.
Each site shall be subject to, and have the right to use, an easement for storm
and surface water drainage as shown on attached Exhibit A. No Owner shall change
the elevation or contours of the land within the easement, nor construct therein
any structure or improvement which will cause or be likely to cause interference
with the flow of water through the easement. However, any Owner may pave the
portion of the easement which lies within that Owner's site, so long as the
paving does not change the elevation or contours of the land within the
easement.
8. Each of the foregoing covenants, conditions and restrictions shall run with
the land hereby conveyed, and a breach of any one of them and continuance
thereof, may, at the option of FIPCO, its successors or assigns, be enjoined,
abated or remedied by appropriate proceedings, in addition to any other remedy
at law or in equity. It is understood, however, that the breach of any of the
foregoing covenants, conditions, and restrictions shall not defeat or render
invalid the lien of any mortgage or deed of trust on the premises made in good
faith and for value; provided, however, (i) that any breach or continuance
thereof may be enjoined, abated or remedied by the proper proceedings as
aforesaid; and (ii) that each and all of the foregoing covenants, conditions and
restrictions shall at all times remain in full force and effect against said
premises or any part thereof, notwithstanding any foreclosure of any such
10
mortgage or deed of trust. No assent, expressed or implied, to any breach of any
one or more of the within covenants or agreements hereof shall be deemed to be
taken to be a waiver of any succeeding or other breach. In the event that FIPCO
brings suit to remedy a breach hereof, and prevails in the suit, the party or
parties committing the breach shall pay FIPCO's attorney's fees incurred in
connection with the breach.
9. If any provisions of these covenants are held invalid in any judicial
proceeding, such invalidity shall not affect the other provisions of these
covenants, all of which shall remain in full force and effect as herein set
forth.
10. FIPCO may by its signed written instrument waive or release any provision of
the within protective covenants as they pertain to any part or all of the Park,
which waiver or release shall be effective as to all parties otherwise entitled
to enforce the within protective covenants. Neither FIPCO, its partners, nor any
employee thereof shall incur any liability whatsoever to any Owner or other
party aggrieved or injured on account of such release or waiver. In return for
such waiver or release, FIPCO may impose on the Site involved such additional or
altered covenants as the Owner in fee of the Site involved may agree to. Each
Owner agrees by accepting title or any interest in any Site that FIPCO, its
partners and each employee thereof shall be immune from suit or liability in
accordance with the foregoing.
11. These protective covenants and any amendments thereto shall remain in effect
until January 1, 2000, after which time they may be revoked in whole or in part
by the recording in the Boulder County records of an instrument signed by the
then Owners in fee of a majority of the Sites in the Park, setting forth and
agreeing to such revocation. Absent such revocation, these covenants and
amendments shall continue in full force and effect.
IN WITNESS WHEREOF, FIPCO has caused these covenants to be executed the day and
year first above written by its duly authorized and empowered partners.
11
EXHIBIT A TO DECLARATION OF PROTECTIVE COVENANTS FOR THE FLATIRON INDUSTRIAL
PARK FILING #4
Beginning at the Xxxxxxxxx xxxxxx xx Xxxxxxx 00, XXX, X00X of the 6th P.M., from
which the West 1/4 corner of said Section 27 bears S00degrees 03'50"W a distance
of 2654.97 feet; Thence S49degrees 35'48"E a distance of 1686.48 feet to the
True Point of Beginning; Thence S00degrees 00'00"E a distance of 246.98 feet to
a point of non-tangent curvature; Thence 118.98 feet along the arc of a circular
curve to the left, said curve having a radius of 105.00 feet a central angle of
64degrees 55'29", and chord bearing S39degrees 27'44"W a distance of 112.72
feet; Thence S00degrees 00'00"E a distance of 426.24 feet to a point; Thence
N90degrees 00'00"E a distance 697.03 feet to a point on the Westerly line of
that recorded subdivision known as Flatiron Industrial Park, Filing No. 3;
Thence N05degrees 17'47"W along the Westerly line of said subdivision known as
Flatiron Industrial Park, Filing No. 3, a distance of 234.85 feet to the
Northwesterly corner of said Flatiron Industrial Park, Filing No. 3; Thence
N84degrees 42'13"E along the Northerly line of said Flatiron Industrial Park,
Filing No. 3, a distance of 446.44 feet to the Northeast corner of said Flatiron
Industrial Park, Filing No. 3, and the Westerly boundary of a parcel conveyed to
the City of Boulder as recorded on Film 910, at Reception No. 162567; Thence
Northwesterly along a curve being the Westerly boundary of that parcel described
on Film 910 at Reception No. 162567, a distance of 329.38 feet to a point of
tangency, said curve being concave Southwesterly and having a radius of 575.00
feet and a central angle of 32degrees 49'15", and a chord bearing N32degrees
30'16"W a distance of 324.89 feet; Thence N49degrees 25'25"W a distance of
150.00 feet to a point of curvature to the right; Thence 409.04 feet along the
arc of a circular curve to the right; said curve having a radius of 785.00 feet,
a central angle of 29degrees 51'19", and a chord bearing N34degrees 29'46"W a
distance of 404.43 feet to a point of reverse curvature; Thence 357.72 feet
along the arc of a circular curve to the left; said curve having a radius of
150.00 feet, a central angle of 136degrees 38'20" and a cord bearing N87degrees
53'16"W a distance of 278.78 feet to a point of reverse curvature; Thence 321.33
feet along an arc of a circular curve to the right; said curve having a radius
of 385.61 feet, a central angle of 47degrees 44'42", and a chord bearing
S47degrees 39'54"W a distance of 312.12 feet to a point of reverse curvature;
Thence 34.55 feet along an arc of a circular curve to the left to the True Point
of Beginning; said curve having a radius of 742.08 feet, a central angle of
02degrees 40'03", and a chord bearing S70degress 12'14"W a distance of 34.54
feet.
Containing 17.438 acres, more or less.
00
XXXXXXXX XXXXXXXXXX XXXX CO.,
A Colorado Partnership
By /s/ XXXXX X. XxXXXXXX, XX.
---------------------------------
Partner
By /s/ XXXXX X. XXXX
---------------------------------
Partner
STATE OF COLORADO )
) ss.
COUNTY OF BOULDER )
The foregoing instrument was acknowledged before me this 3rd day of
October, 1980, by Xxxxx X. XxXxxxxx, Xx. and Xxxxx X. Xxxx as partners of
Flatiron Industrial Park Co., a Colorado Partnership.
Witness my hand and official seal.
My commission expires: My Commission Expires August 12, 1984
[SEAL]
/s/ [ILLEGIBLE]
-------------------------------
Notary Public
[FLATIRON INDUSTRIAL PARK FILING NO. 4 REPLAT]
