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________________________________
LEASE
________________________________
Between
2545 Central LLC
and
Carrier Access Corporation
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SUMMARY OF BASIC LEASE TERMS
1. Tenant: Carrier Access Corporation
(a) Tenant's entity and jurisdiction: Delaware corporation
(b) Tenant's federal taxpayer identification number: 00-0000000
2. Building Address: 0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Type: Single User
3. Demised Premises:
(a) Approx. Total Rentable Square Footage: 14,966
(b) Suite Number: 100
4. Initial Lease Term:
(a) Period: 7 years
(b) Commencement Date: July 1, 2000
(c) Expiration Date: June 30, 2007
5. Basic Rent:
Rent Schedule:
July 1, 2000 to June 30, 2001 $18,708.00 per month
July 1, 2001 to June 30, 2002 $19,643.00 per month
July 1, 2002 to June 30, 2003 $20,625.00 per month
July 1, 2003 to June 30, 2004 $21,656.00 per month
July 1, 2004 to June 30, 2005 $22,739.00 per month
July 1, 2005 to June 30, 2006 $23,876.00 per month
July 1, 2006 to June 30, 2007 $25,070.00 per month
6. Additional Rent
Tenant's Pro Rata Share (for Additional Rent): 100%
7. Security Deposit Amount: $18,708.00
Landlord Initials ____
Tenant Initials ____
8. Place for Payments:
2545 Central LLC
c/o Flatiron Park Company
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
9. Place for Notices:
2545 Central, LLC. with a copy to: Xxxxxxxxxx Black and Xxxx, LLC
x/x Xxxxxxxx Xxxx Xxxxxxx 0000 Xxxxxx Xxxxxx
0000 Xxxxxxx Xxxxxx X.X. Xxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx and
Xxxxx X. Xxxxxxxx
Carrier Access Corporation
0000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
10. Permitted Use(s) by Tenant: Communication hardware and software research
and development, engineering laboratory, and accessory administrative
office uses.
11. Broker(s): None
12. Utilities: Direct to Tenant
Landlord Initials ____
Tenant Initials ____
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 GENERAL...................................................................... 1
1.1 Consideration................................................................ 1
1.2 Exhibits and Addenda to Lease................................................ 1
ARTICLE 2 DEFINITIONS; DEMISE OF PREMISES.............................................. 1
2.1 Demise....................................................................... 1
2.2 Demised Premises............................................................. 1
2.3 Square Footage and Address................................................... 1
2.4 Land......................................................................... 2
2.5 Building..................................................................... 2
2.6 Improvements................................................................. 2
2.7 Property..................................................................... 2
2.8 Common Facilities............................................................ 2
2.9 Parking Area................................................................. 2
2.10 Use of Common Facilities and Parking Area.................................... 2
2.11 Covenant of Quiet Enjoyment.................................................. 2
2.12 Condition of Demised Premises................................................ 2
ARTICLE 3 TERM OF LEASE................................................................ 3
3.1 Lease Term................................................................... 3
3.2 Commencement Date............................................................ 3
3.3 Early Occupancy or Entry..................................................... 3
3.4 Option to Renew or Extend.................................................... 3
ARTICLE 4 RENT AND OTHER AMOUNTS PAYABLE............................................... 4
4.1 Basic Rent................................................................... 4
4.2 Monthly Rent................................................................. 4
4.3 Place of Payments............................................................ 4
4.4 Lease a Net Lease and Rent Absolute.......................................... 4
4.5 Additional Rent.............................................................. 5
4.6 Tenant's Pro Rata Share...................................................... 5
4.7 Monthly Deposits for Taxes, Insurance, and Common Facilities Charges......... 5
4.8 Security Deposit............................................................. 5
4.9 General Provisions as to Monthly Deposits and Security Deposit............... 6
4.10 Rent Regulations............................................................. 6
ARTICLE 5 TAXES AND ASSESSMENTS........................................................ 6
5.1 Covenant to Pay Taxes and Assessments........................................ 6
5.2 Proration at Commencement and Expiration of Term............................. 6
5.3 Special Assessments.......................................................... 7
5.4 New or Additional Taxes...................................................... 7
i
5.5 Landlord's Sole Right to Contest Taxes....................................... 7
ARTICLE 6 INSURANCE.................................................................... 7
6.1 Casualty Insurance........................................................... 7
6.2 Liability Insurance.......................................................... 7
6.3 Other Insurance.............................................................. 8
6.4 General Provisions Respecting Insurance...................................... 8
6.5 Cooperation in the Event of Loss............................................. 8
ARTICLE 7 UTILITY, OPERATING, MAINTENANCE AND REPAIR EXPENSES.......................... 8
7.1 Utility Charges.............................................................. 8
7.2 Common Facilities Charges.................................................... 8
7.3 Tenant's Maintenance Obligation.............................................. 9
7.4 Landlord's Maintenance Obligation............................................ 9
ARTICLE 8 OTHER COVENANTS OF TENANT.................................................... 9
8.1 Limitation on Use by Tenant.................................................. 9
8.2 Compliance with Laws......................................................... 9
8.3 Compliance with Insurance Requirements....................................... 10
8.4 No Waste or Impairment of Value.............................................. 10
8.5 No Overloading............................................................... 10
8.6 No Nuisance, Noxious or Offensive Activity................................... 10
8.7 No Annoying Lights, Sounds or Odors.......................................... 10
8.8 No Unsightliness............................................................. 10
8.9 No Animals................................................................... 10
8.10 Restriction on Signs and Exterior Lighting................................... 11
8.11 No Violation of Covenants.................................................... 11
8.12 Restriction on Changes and Alterations....................................... 11
8.13 No Mechanic's Liens.......................................................... 11
8.14 No Other Encumbrances........................................................ 12
8.15 Subordination to Landlord Mortgages.......................................... 12
8.16 Assignment or Subletting..................................................... 12
8.17 Annual Financial Statements.................................................. 13
8.18 Payment of Income and Other Taxes............................................ 13
8.19 Estoppel Certificates........................................................ 13
8.20 Landlord Right to Inspect and Show Premises and to Install "For Sale" Signs.. 14
8.21 Landlord Right to Renovate, Expand or Modify Building........................ 14
8.22 Landlord Right to Relocate................................................... 14
8.23 Landlord Title to Fixtures, Improvements and Equipment....................... 14
8.24 Removal of Tenant's Equipment................................................ 14
8.25 Tenant Indemnification of Landlord........................................... 15
8.26 Liability of Landlord........................................................ 15
8.27 Release upon Transfer by Landlord............................................ 15
8.28 Rules and Regulations........................................................ 15
8.29 Monitoring Equipment......................................................... 15
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ARTICLE 9 ENVIRONMENTAL MATTERS........................................................ 16
9.1 Definitions.................................................................. 16
9.1.1 Hazardous Material.................................................... 16
9.1.2 Environmental Requirements............................................ 16
9.1.3 Environmental Damages................................................. 16
9.2 Tenant's Obligation to Indemnify, Defend and Hold Harmless................... 17
9.3 Tenant's Obligation to Remediate............................................. 17
9.4 Notification................................................................. 17
9.5 Negative Covenants........................................................... 18
9.5.1 No Hazardous Material on Demised Premises............................. 18
9.5.2 No Violations of Environmental Requirements........................... 18
9.6 Landlord's Right to Inspect and to Audit Tenant's Records.................... 18
9.7 Landlord's Right to Remediate................................................ 18
9.8 Survival of Environmental Obligations........................................ 18
ARTICLE 10 DAMAGE OR DESTRUCTION........................................................ 18
10.1 Damage to Demised Premises................................................... 18
10.2 Options to Terminate if Damage to Demised Premises is Substantial............ 18
10.3 Damage to Building........................................................... 19
10.4 Obligations to Repair and Restore............................................ 19
10.5 Application of Insurance Proceeds............................................ 19
ARTICLE 11 CONDEMNATION................................................................. 20
11.1 Taking -- Substantial Taking -- Insubstantial Taking......................... 20
11.2 Termination on Substantial Taking............................................ 20
11.3 Restoration on Insubstantial Taking.......................................... 20
11.4 Right to Award............................................................... 20
ARTICLE 12 DEFAULTS BY TENANT........................................................... 20
12.1 Defaults Generally........................................................... 20
12.2 Failure to Pay Rent or Other Amounts......................................... 20
12.3 Violation of Lease Terms..................................................... 20
12.4 Nonoccupancy of Demised Premises............................................. 21
12.5 Transfer of Interest Without Consent......................................... 21
12.6 Execution and Attachment Against............................................. 21
12.7 Bankruptcy or Related Proceedings............................................ 21
ARTICLE 13 LANDLORD'S REMEDIES.......................................................... 21
13.1 Remedies Generally........................................................... 21
13.2 Cure by Landlord............................................................. 21
13.3 Termination of Lease and Damages............................................. 21
13.4 Repossession and Reletting................................................... 22
13.5 Security Interest............................................................ 22
13.6 Suits by Landlord............................................................ 23
13.7 Recovery of Landlord Enforcement Costs....................................... 23
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13.8 Administrative Late Charge................................................... 23
13.9 Interest on Past-Due Payments and Advances................................... 23
13.10 Landlord's Bankruptcy........................................................ 23
13.11 Remedies Cumulative.......................................................... 23
ARTICLE 14 SURRENDER AND HOLDING OVER................................................... 23
14.1 Surrender upon Lease......................................................... 23
14.2 Holding Over................................................................. 23
ARTICLE 15 MISCELLANEOUS................................................................ 24
15.1 No Implied Waiver............................................................ 24
15.2 Survival of Provisions....................................................... 24
15.3 Covenants Independent........................................................ 24
15.4 Covenants as Conditions...................................................... 24
15.5 Tenant's Remedies............................................................ 24
15.6 Binding Effect............................................................... 24
15.7 Short Form Lease............................................................. 24
15.8 Notices and Demands.......................................................... 24
15.9 Force Majeure................................................................ 25
15.10 Time of the Essence.......................................................... 25
15.11 Captions for Convenience..................................................... 25
15.12 Severability................................................................. 25
15.13 Governing Law and Venue...................................................... 25
15.14 Entire Agreement/Further Assurances.......................................... 25
15.15 No Oral Amendment or Modifications........................................... 25
15.16 Real Estate Brokers.......................................................... 25
15.17 Relationship of Landlord and Tenant.......................................... 25
15.18 Authority of Tenant.......................................................... 26
iv
LEASE
This Lease is made this 13 day of December, 1999, between 2545 Central LLC,
a Colorado limited liability company, ("Landlord), whose address is c/o Flatiron
Park Company, 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and Carrier Access
Corporation, a Delaware corporation, ("Tenant"), whose address is 0000 Xxxxxxx
Xxxxxx, Xxxxxxx, XX 00000.
ARTICLE 1
GENERAL
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1.1 Consideration. Landlord enters into this Lease in consideration of
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the payment by Tenant of the Rents herein reserved and the keeping, observance
and 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
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2.1 Demise. Subject to the provisions, covenants and agreements herein
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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
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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
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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
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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; PROVIDED, HOWEVER, THAT NO SUCH REPLAT OR RESUBDIVISION SHALL
HAVE ANY MATERIAL ADVERSE IMPACT ON TENANT'S USE AND ENJOYMENT OF THE DEMISED
PREMISES, INCLUDING THE PARKING AREA.
2.5 Building. "Building" shall mean the building or buildings constructed
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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; PROVIDED, HOWEVER, THAT NO SUCH
CONSTRUCTION SHALL HAVE ANY MATERIAL ADVERSE IMPACT ON TENANT'S USE AND
ENJOYMENT OF THE DEMISED PREMISES, INCLUDING THE PARKING AREA.
2.6 Improvements. "Improvements" shall mean the Building, the Parking
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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
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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
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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
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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
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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. LANDLORD SHALL NOT
MATERIALLY REDUCE THE PARKING AREA WITHOUT TENANT'S PRIOR WRITTEN CONSENT.
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; PROVIDED, HOWEVER, THAT
TENANT SHALL NOT BE REQUIRED TO OBTAIN LANDLORD'S PERMISSION FOR OVERNIGHT
PARKING OF OPERATIONAL VEHICLES BELONGING TO EMPLOYEES WHO ARE TRAVELING OR FOR
OTHER OCCASIONS WHEN VEHICLES ARE PARKED OVERNIGHT FOR SHORT PERIODS FOR A BONA
FIDE BUSINESS PURPOSE.
2
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 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
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3.1 Lease Term. "Lease Term" shall mean the period of time specified in
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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
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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.
3
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 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 AS PROVIDED IN ARTICLE 7 BELOW;
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.
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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
4
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 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. "TAXES AND ASSESSMENTS"
5
SHALL NOT INCLUDE ANY PENALTIES, INTEREST, OR OTHER CHARGES INCURRED BY LANDLORD
AS A RESULT OF FAILING TO PAY ANY TAX OR ASSESSMENT WHEN DUE, PROVIDED THAT
TENANT HAS NOT FAILED TO PAY MATERIAL AMOUNTS OF ADDITIONAL RENT WHEN DUE
HEREUNDER.
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 full 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 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,
6
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
Tenant's 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.
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
7
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 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
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.
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
9
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.
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.
10
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.
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 UNREASONABLY OR IN BAD FAITH fails to
execute any documents REASONABLY required to be executed by Tenant under the
provisions hereof WITHIN FIFTEEN (15) DAYS AFTER REQUEST, 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
11
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. UNDER NO CIRCUMSTANCES SHALL TENANT BE PERMITTED TO MAKE ANY
ASSIGNMENT, SUBLEASE OR OTHER TRANSFER OF THIS LEASE TO, NOR PERMIT ANY
OCCUPANCY OR USE OF THE DEMISED PREMISES BY, XOR NETWORK ENGINEERING, INC., RED
SHIFT, INC., OR ANY PARENT, SUBSIDIARY, OR AFFILIATE OF SUCH CORPORATIONS.
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 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 REASONABLE 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 REASONABLE attorneys' fees. LANDLORD AGREES
THAT SO LONG AS TENANT IS NOT IN DEFAULT, TENANT MAY COLLECT RENT ON ANY
SUBLEASES AND LANDLORD WILL NOT REQUIRE SUCH SUBTENANTS TO MAKE DIRECT PAYMENTS
TO LANDLORD.
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; PROVIDED, HOWEVER, THAT TENANT SHALL NOT
BE OBLIGATED TO PROVIDE ANY FINANCIAL STATEMENTS TO LANDLORD THAT HAVE NOT YET
BEEN RELEASED BY TENANT IN ITS FILINGS WITH THE SECURITIES AND
12
EXCHANGE COMMISSION. 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) FIFTEEN
(15) 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, OTHER THAN CHANGES
NECESSARY TO MAKE THE STATEMENTS CONTAINED IN SUCH CERTIFICATE ACCURATE, 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 REASONABLE
attorneys' fees.
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.
13
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 personalty 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. LANDLORD AGREES THAT IF THE REPLACEMENT SPACE OR BUILDING PROPOSED
BY LANDLORD IS NOT REASONABLY SUITABLE FOR TENANT'S BUSINESS, TENANT MAY GIVE
WRITTEN NOTICE OF ITS OBJECTION TO SUCH PROPOSED RELOCATION WITHIN THIRTY (30)
DAYS AFTER LANDLORD'S NOTICE OF INTENT TO RELOCATE TENANT. IF LANDLORD ELECTS
TO PROCEED WITH RELOCATION AFTER SUCH OBJECTION NOTICE, TENANT SHALL HAVE THE
RIGHT TO TERMINATE THIS LEASE BY WRITTEN NOTICE TO LANDLORD, SUCH TERMINATION TO
BE EFFECTIVE AS OF THE DAY LANDLORD REQUIRES TENANT TO VACATE THE BUILDING.
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,
AFTER TEN (10) DAYS WRITTEN NOTICE TO TENANT, keep and retain any such Tenant's
Equipment or dispose of the same and retain any proceeds therefrom, and Landlord
shall be entitled 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;
14
(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 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.
-----------------
15
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. (S) 9601 et
seq.) and the Resource Conservation and Recovery Act (42 U.S.C. (S) 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
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:
16
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 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.
17
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 UPON
TWO BUSINESS DAYS' NOTICE, EXCEPT IN CASE OF EMERGENCY, IN WHICH CASE SUCH
NOTICE SHALL NOT BE REQUIRED, 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 destruction and to estimate the
time necessary to repair or restore the Demised Premises. As soon as reasonably
possible, BUT IN NO EVENT LATER THAN THIRTY (30) DAYS, 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) ONE HUNDRED EIGHTY (180) 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 NEGLIGENCE 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) ONE HUNDRED EIGHTY (180)
days from the time of Tenant's Notice of Damage, but Tenant shall not have the
option to terminate this 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
18
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. IF INSURANCE PROCEEDS ARE
INADEQUATE TO PERMIT RESTORATION OF THE DEMISED PREMISES AS REQUIRED HEREIN,
TENANT SHALL HAVE THE RIGHT TO TERMINATE THIS LEASE UPON WRITTEN NOTICE TO
LANDLORD.
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.
19
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 AND LANDLORD SHALL REASONABLY COOPERATE
WITH TENANT IN ITS EFFORTS TO PURSUE SUCH A SEPARATE AWARD.
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) FIVE (5) 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 WRITTEN 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 with such 30-day period or shall not
diligently proceed therewith to completion with sixty (60) days following the
occurrence of the breach or failure.
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 LEAVE THE DEMISED
20
PREMISES CONTINUOUSLY VACANT FOR SIXTY (60) DAYS 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 be 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 SHALL GIVE TENANT NOTICE AND OPPORTUNITY TO CURE SUCH
DEFAULT WITHIN THE TIME PERIODS SPECIFIED IN THIS LEASE, EXCEPT IN CASE OF
EMERGENCY, IN WHICH CASE 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 THAT IS NOT CURED WITHIN THE APPLICABLE CURE PERIOD(S) PROVIDED IN THIS
LEASE, 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
21
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 termination, after deducting
all Landlord's REASONABLE 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 THAT
--------------------------------
IS NOT CURED WITHIN THE APPLICABLE CURE PERIOD(S) PROVIDED IN THIS LEASE,
Landlord may reenter and take possession of the Demised Premises or any part
thereof, without demand or noticeWITH SUCH DEMAND OR NOTICE AS MAY BE REQUIRED
BY APPLICABLE LAW, 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 REASONABLE 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. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, LANDLORD
SHALL MAKE COMMERCIALLY REASONABLE EFFORTS TO MITIGATE ITS DAMAGES.
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
22
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.
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 FIFTH 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%) FOUR PERCENT (4%) of such
past due amount shall be come 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%) EIGHTEEN PERCENT (18%) 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 UNCURED 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,
23
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%) ONE HUNDRED FIFTY PERCENT (150%) 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 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.
24
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 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.
25
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 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.
15.19 REASONABLE COSTS AND EXPENSES. WHENEVER ANY PROVISON OF THIS LEASE
------------------------------------
REQUIRES THE REIMBURSEMENT OF COSTS OR EXPENSES BY TENANT, SUCH PROVISION SHALL
BE INTERPRETED TO MEAN REASONABLE COSTS AND EXPENSES.
* * *
26
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. Carrier Access Corporation
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxx
-------------------------------- ----------------------------
Xxxxxxx X. Xxxxxx Xxxxx Xxxxxx
Vice President Chief Financial Officer
Authorized Agent for Landlord
STATE OF COLORADO )
) ss
COUNTY OF BOULDER )
The foregoing instrument was acknowledged before me this 15th day of
December, 1999 by Xxxxxxx X. Xxxxxx, as Vice President and Authorized Agent of
Flatiron Park Company.
Witness my hand and official seal.
My commission expires: February 11, 2002
------------------
/s/ Xxxxxxxx X. Xxxxxx
___________________________________
Notary Public
STATE OF Colorado )
----------- ) ss
COUNTY OF Boulder )
----------
The foregoing instrument was acknowledged before me this _____ day of
December, 1999 by Xxxxx Xxxxxx, as Chief Financial Officer of Carrier Access
Corporation.
Witness my hand and official seal.
My commission expires: February 11, 2002
------------------
/s/ Xxxxxxxx X. Xxxxxx
___________________________________
Notary Public
27
EXHIBIT A
LEGAL DESCRIPTION OF LAND
XXX 0, XXXXXXXX XXXXXXXXXX XXXX FILING XX.0
XXXXXX XX XXXXXXX, XXXXX XX XXXXXXXX
XXXXXXX X
LOCATION OF DEMISED PREMISES WITHIN BUILDING
[ENTIRE BUILDING]
EXHIBIT C
NOTICE OF NON-LIABILITY FOR MECHANICS' LIENS
Pursuant to C.R.S. (S) 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 80301,_______________
__________________________________ ("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 the
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.
2
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. This 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
land 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]
