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Exhibit 10.32
LEASE AGREEMENT
between
CLEARFIELD INVESTMENTS, LLC
("Landlord")
and
JENOPTIK INFAB, INC.
("Tenant")
4725 Centennial Drive
Colorado Springs, Colorado
February 24, 1999
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LEASE AGREEMENT
TABLE OF CONTENTS
Page
----
Summary Page ................................................. ii
1. TERM ....................................................... 1
2. RENT ....................................................... 3
3. CONSTRUCTION AND OCCUPANCY. ................................ 5
4. COMMENCEMENT DATE CERTIFICATE .............................. 6
5. USE OF PREMISES ............................................ 6
6. PARKING .................................................... 7
7. INSURANCE .................................................. 7
8. FIRE OR CASUALTY ........................................... 7
9. SERVICES AND EXPENSES ...................................... 8
10. ALTERATIONS AND CARE OF PREMISES ........................... 8
11. PERMITTED USE OF HAZARDOUS MATERIALS ....................... 9
12. ENVIRONMENTAL .............................................. 10
13, DEFAULT AND REMEDIES ....................................... 12
14. ASSIGNMENT OR SUBLETTING ................................... 15
15. ENCUMBRANCES ............................................... 16
16. EMINENT DOMAIN ............................................. 17
17. MUTUAL WAIVER OF SUBROGATION ............................... 17
18. ADDITIONAL COVENANTS AND AGREEMENTS ........................ 18
19. NO PARTNERSHIP, JOINT VENTURE OR AGENCY .................... 20
20. HOLDING OVER ............................................... 20
21. QUIET ENJOYMENT ............................................ 20
22. LANDLORD'S RESERVED RIGHTS ................................. 20
23. FORCE MAJEURE .............................................. 21
24. MISCELLANEOUS .............................................. 21
EXHIBIT A - Legal Description
EXHIBIT B - Site Plan
EXHIBIT C - Tenant Improvement Costs
EXHIBIT D - Construction Schedule
EXHIBIT E - Landlord Services and Expenses
EXHIBIT F - Commencement Date Certificate
EXHIBIT G - Parking Agreement
EXHIBIT H - Guarantee of Lease Jenoptik AG
EXHIBIT I - Guarantee of Lease Meissner & Wurst U.S. Inc.
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LEASE AGREEMENT
SUMMARY PAGE
This Summary Page is attached to and made a part of that certain Lease
Agreement dated February 24, 1999 between Clearfield Investments, LLC, as
Landlord, and the Tenant listed below.
TENANT:
Name: Jenoptik INFAB, Inc.
Current Address: 7150 Campus Drive Colorado Springs, CO 80920
DEMISED PREMISES:
Suite Number:
Rentable Square Feet: Approximately 14,133.22 square feet
BUILDING:
Address: 4747 Centennial Drive, Colorado Springs, Colorado 80919
Total Rentable Square Feet: Approximately 79,847 square feet
INITIAL LEASE TERM:
Number of years: 5 years
Scheduled Term Commencement Date: April 15, 1999
BASIC RENT: See Section 2 of the Lease (first month payable upon receipt of
Commencement Date Certificate)
SECURITY DEPOSIT: $12,250.00 (security deposit payable upon execution,
see Section 2F)
TENANT'S PRO RATA SHARE OF OPERATING COSTS: 17.7004%
PARKING: 42 spaces (see Section 6 and Exhibit F)
PERMITTED USE: Office warehouse storage and light manufacturing
OPTIONS FOR ADDITIONAL SPACE: None
RENEWAL OPTION: One (1). Three (3) Year Renewal at Market
PLACEMENT OF PAYMENTS: 2850 Serendipity Circle West, Suite 100
Colorado Springs, CO 80917
Attention: C. William Kephart
GUARANTOR(S): Jenoptik AG
PARTICIPATING BROKERS: Olive Real Estate Group, Inc.
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease"), made and entered into
this 24th day of February, 1999, by and between CLEARFIELD INVESTMENTS, LLC, a
Colorado limited liability company (hereinafter called "Landlord"), and
JENOPTIK INFAB, INC, a Delaware Corporation (hereinafter called "Tenant").
WITNESSETH:
Landlord desires to lease to Tenant and Tenant desires to lease
from Landlord, that approximately 14,133.22 square foot portion (subject to
adjustment in accordance with the Plans described below) (hereinafter called the
"Leased Premises") in the approximately 79,042 square foot building (the
"Building") being constructed, together with related site improvements, on
approximately 5-1/2 acres of land (the "Land") described on Exhibit A attached
hereto, more commonly known as 4725 Centennial Drive, Colorado Springs,
Colorado, as shown on the site plan attached hereto as Exhibit B (such Building
and related site improvements sometimes collectively referred to herein as the
"Project"). The purpose of the site plan shown on Exhibit B is to show the
approximate location of the Building and the Leased Premises. Landlord reserves
the right at any time to relocate or make additions to the various buildings,
automobile parking areas and other common areas shown on said site plan.
NOW, THEREFORE, Landlord does hereby lease and demise unto
Tenant, and Tenant does hereby Lease from Landlord, the Leased Premises, upon
the terms and conditions hereinafter set forth.
1. TERM
A. The term of this Lease (the "Term" or "Lease Term") shall be
five (5) years, commencing on the date (the "Commencement Date") which shall be
computed from the earlier of (i) the date on which the Leased Premises are Ready
for Occupancy (as defined in Section 3B) or (ii) the date on which Tenant takes
possession of or commences use of the Leased Premises for any purpose (except as
provided in Section 3D), and ending sixty (60) months thereafter (the
"Termination Date"), unless extended or sooner terminated as provided herein.
B. Landlord hereby grants to Tenant one (1) three (3) year
option to renew this Lease ("Option to Renew") as specified herein. The Option
to Renew shall be exercisable by Tenant giving Landlord written notice of its
election to renew (the "Notice to Renew") at least six (6) months before the
expiration of the Lease Term, subject to the following terms and conditions:
(i) Tenant is not in default under any term of this Lease,
either at the time the Notice to Renew is given or when the renewal term
commences.
(ii) During the renewal term, all terms, covenants and
conditions of the Lease shall apply, except that the base rent payable during
such renewal term shall be determined as set forth in paragraph (iii) below.
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(iii) The monthly base rent during the renewal term shall be
equal to the greater of (a) the amount of the monthly base rent payable during
the last full month of the Lease Term then expiring, or (b) the fair rental
value of the Leased Premises at the time of the commencement of the renewal
period, as determined by agreement between Landlord and Tenant or by appraisal
in accordance with the provisions of paragraph (d). Within thirty (30) days of
receipt of the Notice to Renew, Landlord shall notify Tenant in writing of its
evaluation of the fair rental value of the Leased Premises ("Landlord's Rent")
for the period covered by the renewal term (expressed on a monthly basis).
Within thirty (30) days thereafter, Tenant shall send to Landlord a notice
("Tenant's Notice") stating either (1) Tenant's agreement with Landlord's Rent,
in which event such amount shall be fixed as the base rent payable by Tenant for
the renewal term, or (2) Tenant's evaluation of such fair rental value
("Tenant's Rent") (expressed on a monthly basis). If Landlord and Tenant are
unable to agree upon such fair rental value within thirty (30) days from the
date of sending the Tenant's Notice, the matter shall be determined by appraisal
in accordance with the provisions of paragraph (iv). The appraiser's
determination of the fair rental value of the Leased Premises for the renewal
term may not, in any event, be less than the base rent payable during the last
full month of the Lease Term then expiring.
(iv) In absence of agreement between Landlord and Tenant as to
the fair rental value pursuant to the procedures set forth in paragraph (iii)
above, within thirty (30) days after the Tenant's Notice, the fair rental value
shall be established by an appraisal of the Leased Premises performed as
follows. Landlord and Tenant each shall appoint an appraiser certified to
appraise commercial real property in the State of Colorado, and the two thus
appointed shall appoint a third such appraiser. Such three appraisers or, if
either Landlord or Tenant shall fail to appoint its respective appraiser within
sixty (60) days alter the Tenant's Notice, the appraiser timely appointed by the
other, shall conduct their or its appraisals independently, and the fair rental
value of the Leased Premises shall be (a) the average of the two closest of the
three (3) values determined by the three (3) appraisers, or (b) the value
determined by such single appraiser, as the case may be. The appraiser(s) shall
complete their (its) appraisal(s) within ninety (90) days after Tenant's
Notice. All costs of appraisal shall be shared equally by Landlord and Tenant,
unless Landlord or Tenant shall fail to timely appoint its appraiser. If the
appraiser selected by either one alone determines the fair rental value, the
other shall pay all costs of the appraisal.
(v) If for any reason the renewal term commences before the
base rent for such term is determined, Tenant, in the meantime, shall pay the
monthly installments of base rent (the "Prior Rent") in effect under this Lease
on the last day of the term being renewed. Immediately following such
determination, Tenant shall pay to Landlord the difference between the monthly
installments of the Prior Rent actually paid and those which should have been
paid on the basis of such determination. Tenant shall pay the base rent as so
determined.
(vi) Tenant shall accept the Leased Premises in the condition
then existing as of the commencement of the renewal term of this Lease. Landlord
shall not be responsible for performing any work or furnishing any materials to
the Leased Premises. If Tenant fails to give the required Notice to Renew
exercising its Option to Renew within the time and manner provided, such failure
or omission shall be deemed, without further notice or agreement between the
parties, to be an election by Tenant not to exercise such option.
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2. RENT
A. Throughout the Term of this Lease, Tenant shall pay as rent for
the Leased Premises the base annual rent (sometimes referred to herein as "base
rent" or "rent") as provided in this Section. Rent shall be payable, at the
address set forth on the Summary Page, in equal monthly installments in advance
on the first day of each calendar month, in full, without deduction, abatement
or setoff, the first monthly payment to be made concurrently with the
Certificate of Occupancy being provided to the Tenant. Rent for any partial
month during the Term of this Lease shall be prorated on a per diem basis.
B. TENANT covenants and agrees to pay without prior demand thereof
a fixed minimum rental of $803,776.00 for the Leased Premises as follows:
Rent/Sq. Foot Monthly Base Rent Base Annual Rent
Year 1 $10.5000 $12,366.57 $148,398.81
Year 2 $10.9200 $12,861.23 $154,334.76
Year 3 $11.3568 $13,375.68 $160,508.15
Year 4 $11.8111 $13,910.74 $166,928.87
Year 5 $12.2835 $14,467.12 $173,605.41
C. The base rent shall be adjusted effective each anniversary of
the Commencement Date. The base rent assumes that the rentable square feet of
the Leased Premises will be as set forth on the Summary Page and that the Tenant
Improvement Cost per square foot will be as set forth in Exhibit C attached
hereto. If the Commencement Date Certificate (described in Section 4) reflects a
different square footage and/or final Tenant Improvement Cost, the base rent
will be adjusted accordingly and reflected in such Commencement Date
Certificate.
D. As additional rent, Tenant shall pay Tenant's "Pro Rata Share"
as set forth on the Summary Page (or, if different, as contained in the
Commencement Date Certificate described in Section 4) (computed by multiplying
the Operating Costs by a fraction, the numerator of which is the number of net
rentable square feet of area in the Leased Premises and the denominator of which
is the total number of net rentable square feet of area in the Building) of
Landlord's Operating Costs (as defined in Exhibit E attached hereto). Tenant's
Pro Rata Share shall be increased or decreased in the event the rentable square
feet of the Leased Premises shall be increased or decreased, or if the rentable
area of the Building is increased or decreased (however such events may occur).
Landlord shall provide a reasonable estimate of the next yearly Operating Costs,
and Tenant shall pay 1/12th of the estimated Tenant's Pro Rata Share monthly on
the same date and at the same place as base rent is payable, commencing on the
Commencement Date and continuing through the Term. Landlord shall provide
Tenant, by April 15 of each year, a summary of factual Operating Costs for the
prior year and Landlord shall bill or credit to Tenant the difference of
Tenant's share of actual costs from the estimate. After the end of the Term of
this Lease, or the sooner termination thereof~ Landlord shall, within thirty
(30) days of such expiration or termination, provide Tenant with a summary of
actual Operating Costs for the last partial year, and if Tenant shall have
theretofore paid as Tenant's Pro Rata Share an amount greater than that
calculated to have been due pursuant to this Section for the calendar
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year in which the Term of this Lease terminates, Landlord shall refund the
overpayment to Tenant within thirty (30) days from the date of the determination
of the date of such overpayment. In the event that, after the end of the Term of
this Lease, or the sooner termination thereof, Tenant shall have theretofore
paid as Tenant's Pro Rata Share an amount less than that calculated to have been
due pursuant to this Section for the calendar year in which the Term of this
Lease terminates, Tenant agrees to pay to Landlord, within thirty (30) days of
Tenant's receipt of Landlord's bill, that amount calculated as actually owed by
Tenant to Landlord pursuant to this Section.
E. Any rent and other amounts due from Tenant to Landlord
hereunder which is not paid within twelve (12) days when due shall, upon notice
from Landlord, be subject to a five percent (5%) service charge and shall bear
interest at the rate of eighteen percent (18%) per annum from the date due to
the date paid, unless, within two (2) calendar days after receipt of such
notice, Tenant pays Landlord the full amount of the rent or other amount then
due. The parties agree that such late charge and default interest constitute a
reasonable estimate of the damages Landlord will suffer as a result of Tenant's
late payment, which damages include Landlord's additional administrative and
other costs associated with such late payment. The parties further agree that
such late charge and default interest shall in no event constitute a waiver of
Tenant's default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted at law or equity or
pursuant to this Lease.
F. Upon Tenant's execution of this Lease Tenant shall pay to
Landlord a Security Deposit in the mount of $12,250. Upon the occurrence of any
event of default by Tenant, landlord may, from time to time, without prejudice
to any other remedy, use the Security Deposit to the extent necessary to make
good any arrears of rent and any other damage, injury, expense or liability
caused to Landlord by such event of default. If any portion of the Security
Deposit is so used or applied, Tenant shall, within five (5) days after written
demand therefor, deposit cash with Landlord in an amount sufficient to restore
the Security Deposit to its original amount. Tenant shall not be entitled to
interest on the Security Deposit. Landlord shall not be required to keep the
Security Deposit separate from its other accounts and no trust relationship is
created with respect to the Security Deposit. Tenant shall not grant anyone a
security interest of any kind in the Security Deposit and no such security
agreement shall be binding on Landlord. Each time the base rent is increased,
Tenant shall deposit additional funds with Landlord sufficient to increase the
Security Deposit to an amount that bears the same relationship to the adjusted
base rent as the initial Security Deposit bears to the initial base rent. If
Tenant shall fully and faithfully perform every provision of this Lease to be
performed by it, the Security Deposit, or such balance thereof as may then be
remaining shall be returned to Tenant within sixty (60) days following the
termination of this Lease and upon Tenant's vacation of the Leased Premises. The
Security Deposit shall not be considered an advance payment of rental or a
measure of Landlord's damages in case of default by Tenant.
G. As additional rent, Tenant shall pay the "Unamortized Tenant
Improvement Costs" (sixth (6) year and seventh (7) year) in the sum of
$97,550.11 with the last month's rent. If the Tenant signs the three (3) year
renewal the sum of $97,550.11 will be forgiven by Landlord and the amount will
not be due and payable by Tenant.
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3. CONSTRUCTION AND OCCUPANCY
A. Landlord shall complete and improve the Leased Premises
substantially in accordance with (i) the preliminary Construction Schedule
attached hereto as Exhibit D. (ii) the plans and other specifications therefor
to be prepared by Landlord with input from tenant (collectively, the "Plans"),
which shall be subject to the reasonable approval of both Landlord and Tenant,
and (iii) a Work Letter to be entered into by Landlord and Tenant by the date
specified in Exhibit D. Landlord shall complete the Leased Premises in a
first-class workmanlike manner and in compliance with applicable laws and code
requirements. Landlord's obligation for completion of the Leased Premises shall
be defined and limited by the Plans and the Work Letter, and Landlord shall not
be required to furnish or install any item not included therein.
B. The Leased Premises shall be "Ready for Occupancy" on the date
on which all of the following have been received and presented to Tenant: (i) a
Certificate of Completion signed by the architect for the construction of the
Leased Premises, indicating that all improvement described in the approved Plans
have been completed in substantial compliance therewith (subject to clause (iii)
herein below; (ii) a Certificate of Occupancy for the Leased Premises issued by
the appropriate governmental agency, and (iii) Landlord's notification that the
Leased Premises have been substantially completed, except for items of work and
adjustment of equipment and fixtures that can be completed after occupancy has
been taken without causing substantial interference with Tenant's use of the
Leased Premises (i.e., so-called "punch list" items), which punch list items are
subject to the reasonable approval of Landlord and Tenant. Landlord shall
complete the punch list items within three (3) months alter the punch list is
completed (subject to availability of materials) after Tenant's taking
possession of the Leased Premises. If Landlord and Tenant cannot agree on the
punch list or as to incomplete work, the decision of Landlord's architect
preparing the working drawings as to such issues shall be considered by the
parties as final. It is expressly understood by the parties that Ready for
Occupancy does not include the installation of a telephone system by Landlord.
Any additional changes or improvements to the Leased Premises shall be at
Tenant's sole cost and expense.
C. The parties anticipate that the Leased Premises shall be Ready
for Occupancy by the Scheduled Term Commencement Date set forth on the Summary
Page. Landlord and Tenant shall use their best efforts and cooperate with each
other in order to expedite the preparation and completion of the Plans and the
Work Letter. Landlord agrees to use its reasonable best efforts to cause the
Leased Premises to be completed and available for Tenant's occupancy by the
Scheduled Term Commencement Date. However, in the event that the Leased Premises
shall not be Ready for Occupancy on the Scheduled Term Commencement Date,
Landlord shall, within ten (10) days prior to the Scheduled Term Commencement
Date, give written notice to Tenant of the anticipated date that the Leased
Premises will be Ready for Occupancy, but the failure to give such notice shall
not constitute a default hereunder by Landlord. In the event Landlord fails to
deliver possession of the Leased Premises to Tenant by the Scheduled Term
Commencement Date, this Lease shall not be void or voidable, nor shall Landlord
be liable to Tenant for any loss or damage resulting therefrom, except for
actual increases to Tenant's lease cost in Tenant's current occupancy for delays
over two (2) months from the Scheduled Term Commencement Date, but in such event
Tenant shall not be liable for
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rent until such time as the Leased Premises are Ready for Occupancy (except as
otherwise provided in Section 3.D. Any failure by Landlord to deliver possession
of the Leased Premises by the Scheduled Term Commencement Date, or delivery of
possession before the Scheduled Term Commencement Date, shall not in any way
affect the obligations of Tenant hereunder. Notwithstanding the foregoing and
except as provided in the next sentence and subject to Section 23, if the Leased
Premises are not Ready for Occupancy within two (2) months after the Scheduled
Term Commencement Date, then within the next ten (10) day period thereafter
ensuing, but not subsequent to the date Landlord delivers possession of the
Leased Premises to Tenant, Tenant may, by notice to Landlord, terminate this
Lease without any further obligation by Tenant or Landlord to the other.
D. Tenant may take partial possession of the Leased Premises ten
(10) days prior to the date the Leased Premises are estimated to be Ready for
Occupancy for the purpose of installing Tenant's furniture, fixtures, equipment
and other leasehold improvements, provided that such early occupancy by Tenant
shall not unreasonably interfere with the construction and completion of the
Project or the Leased Premises by Landlord or cause union jurisdictional
disputes; and provided further that such early occupancy shall be subject to all
the terms of this Lease, except that the payment of rent shall not be
accelerated. Tenant shall give Landlord notice at least twenty-four (24) hours
prior to the time Tenant intends to take such early partial possession of the
Leased Premises, and Tenant shall coordinate Tenant's activities relating to the
Leased Premises with Landlord's Project manager during such early occupancy
period.
E. Occupancy of the Leased Premises by Tenant shall be deemed
acceptance thereof by Tenant in good and suitable condition (other than punch
list items and latent defects) and acknowledgment of completion in full
accordance with the provisions hereof.
4. COMMENCEMENT DATE CERTIFICATE
Landlord and Tenant shall execute a Commencement Date Certificate
substantially in the form of Exhibit F, attached hereto, promptly following the
determination of the Commencement Date confirming the Commencement Date of the
Lease, the Termination Date of the Lease, the total rentable square feet of the
Leased Premises, the Final Tenant Improvement Cost, Tenant's Pro Rata Share of
Operating Expenses, the Initial Annual Rent, an estimate of the first year's
Operating Costs and such other matters as may be reasonably requested by
Landlord; provided however, that the failure of Landlord or Tenant to confirm
the same in writing shall not affect any obligation of Tenant hereunder or
Landlord's determination of the Commencement Date as provided in Section 3.B.
5. USE OF PREMISES
Tenant shall use the Leased Premises solely for the purposes set
forth on the Summary Page. Tenant will not occupy or use, nor permit any
portion of the Leased Premises to be occupied or used, for any other purpose or
for any purpose which is unlawful in part or in whole or deemed to be
disreputable in any manner, or which creates any safety hazard, nor shall Tenant
permit anything to be done which will in any way increase the rate of insurance
on the Building or contents, and in the event that, by reason of Tenant's acts
or conduct of business,
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there shall be any increase in the rate of insurance on the Building or
contents, then Tenant hereby agrees to pay such increase. Tenant will conduct
its business, and control its employees, agents, guests, invitees and licensees,
in such a manner so as not to create any nuisance or interfere with, annoy or
disturb other tenants or Landlord in the management of the Building.
6. PARKING
Tenant shall have the right to use the Building's parking
facilities in accordance with and subject to Exhibit G attached hereto.
7. INSURANCE
A. During the Lease Term, Tenant shall maintain a policy of
commercial general liability insurance (sometimes known as broad form
comprehensive general liability insurance) insuring Tenant against liability for
bodily injury, property damage (including loss of property) and personal injury
arising out of the operation, use or occupancy of the Leased Premises, with a
combined single limit of not less than $2,000,000. Such insurance shall (i) name
Landlord as an additional insured, (ii) be primary and non-contributing, and
(iii) contain cross-liability endorsements. Tenant shall also secure and
maintain "all risk" or "multi-peril" insurance on all of Tenant's property, and
betterments in the Leased Premises, including, without limitation, all of
Tenant's furniture, fixtures and personal property and all improvement,
alterations and additions made by Tenant, for full replacement cost. All
insurance that Tenant is required to maintain by this Lease shall include a
provision that requires the insurance carrier to give Landlord at least thirty
(30) days prior written notice before the same may be altered or canceled.
Tenant shall deliver to Landlord yearly or upon request certificates evidencing
that the insurance required by this Section is in force and effect. The limits
of any insurance carried by Tenant shall not, under any circumstances, limit the
liability of Tenant hereunder.
B. During the Term of this Lease, Landlord shall obtain and keep
in full force and effect a policy or policies of (i) comprehensive general
liability insurance covering bodily injury and property damage with a combined
single limit of not less than $2,000,000 for the benefit of Landlord as named
insured, insuring against all personal injury and property liability of Landlord
and its authorized representatives arising out of or in connection with the
Project, (ii) "all risk" or "multi peril" property insurance insuring the
Project in an amount at least equal to the full replacement value of the
Project, (iii) loss of rents insurance in an amount equal to twelve (12) months
base rent, and (iv) flood and earthquake insurance or other insurance as
required by any lender holding a security interest in the Project or as Landlord
reasonably determines is necessary, or prudent for the Project. All insurance
premiums for Landlord's insurance shall be included in Operating Costs as
described in Section 2.D and Exhibit E.
8. FIRE OR CASUALTY
It is agreed that if, during the continuance of this Lease, the
Leased Premises shall be so damaged by fire or other casualty, not arising from
the fault or negligence of Tenant, or any employee, agent, guest, invitee or
licensee of Tenant, so that the Leased Premises shall thereby be rendered
untenantable, then and in such case, the rent herein reserved, or a just and
proportionate
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part thereof, according to the nature and extent of the damage which has been
sustained, shall be abated until the Leased Premises shall have been duly
repaired and restored, which work of repair and restoration shall be done by
Landlord with all reasonable diligence; provided, however, that should Tenant be
in default at the time same occurs Landlord shall have no such obligation.
Landlord's obligation to repair and restore shall be limited to repairing and
restoring the Leased Premises and the Project to substantially the same
condition as existed immediately prior to such casualty, excluding leasehold
improvements made or installed by Tenant. In no event in the case of any such
casualty or destruction shall Landlord be required to repair or restore
leasehold improvements, fixtures or floor coverings actually made or installed
by Tenant or Tenant's stock in trade, furnishings and equipment. In case the
Project shall be destroyed so that the Leased Premises are not restorable within
one hundred twenty (120) days, Landlord or Tenant shall have the right to cancel
this Lease and end the Term hereof, and in case of such cancellation, the rent,
and any other moneys due and owning to Landlord, shall be paid by Tenant to the
date the damage occurred, and all further obligations upon the part of either
party hereto shall cease, and the estate hereby created shall thereupon
terminate. In the event the Leased Premises are damaged by fire or other
casualty during the last two (2) years of the term of this Lease to an extent
which renders the Leased Premises untenantable, Landlord or Tenant may within
thirty (30) days following the day of such fire or other casualty, immediately
terminate this Lease and Landlord shall be relieved of any obligation to rebuild
or repair the Leased Premises.
9. SERVICES AND EXPENSES
The services of Landlord and the payment by Tenant for said
services and of operational expenses are described in Exhibit E attached hereto.
10. ALTERATIONS AND CARE OF PREMISES
A. Tenant will not alter the exterior of the Leased Premises
(including glass, window coverings and signs, if applicable) and shall have no
fight to make any change, alteration or addition to the Leased Premises without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld or delayed. All costs of such work shall be paid promptly by Tenant so
as to prevent the assertion of any liens for labor or materials.
B. Tenant agrees that it will take good care of the Leased
Premises, fixtures and appurtenances, and suffer no waste or injury, that it
will make all repairs to the Leased Premises, fixtures and appurtenances
necessitated by the fault of Tenant, its agents, employees, guests, invitees and
licensees; that it will indemnify and hold harmless Landlord from any liability
arising from injury to person or property caused by any act or omission of
Tenant, its agents, employees, guests, invitees or licensees; that it will
repair, at or before the end of the Term, or sooner if so requested by Landlord,
all injury done by the installation or removal of furniture or other property;
and that, subject to Section 8, it will surrender the Leased Premises at the
expiration of the Term (or the sooner termination thereof for any reason) in as
good condition as they were at the beginning of the Term, ordinary wear and tear
excepted.
C. All alterations, additions, or improvements on or in the
Leased Premises at the expiration of this Lease, except trade fixtures, shall,
at the option of Landlord, be and become
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a part of the Leased Premises, and shall, at the option of Landlord, remain upon
and be surrendered with the Leased Premises as a part thereof at the termination
of this Lease. Should Tenant fail to remove any furniture or fixtures or
personal property of any kind, then same shall be considered as abandoned and
become the property of Landlord. In the event Landlord may desire Tenant to
remove additions, alterations or improvements Tenant, at its expense, shall,
upon expiration of this Lease, restore the Leased Premises to the same and as
good order and condition as when the same were entered upon by Tenant, ordinary
wear and tear excepted, and in default thereof, Landlord may effect such
removals and repairs and Tenant shall pay Landlord the cost thereof, with
interest at the rate of eighteen percent (18%) per annum to the date of payment
by Tenant to Landlord. At the time Landlord gives its consent to any changes,
alterations or additions to the Leased Premises as required in Section 10.A
above, it shall notify Tenant whether the same shall become part of the Leased
Premises or are to be removed by Tenant at the expiration of the Lease. In no
event, however, shall Tenant be required to remove any tenant improvements
installed by Landlord pursuant to Section 3.D. Landlord shall not be liable for
any loss or damage to Tenant caused by vermin, sewerage, snow, hail or water
that may leak into or flow from any part of the Leased Premises through any
defects in the roof or plumbing or from any other source, except as may result
from Landlord's gross negligence or willful misconduct.
11. PERMITTED USE OF HAZARDOUS MATERIALS
A. Tenant shall have the right under this Lease to Manage
Permitted Materials on the Leased Premises. Tenant shall provide Landlord with
prior notification before causing, suffering, or permitting the storage,
treatment, use, generation or disposal of any Permitted Materials in, on, about
or from the Leased Premises (other than reasonable amounts of normal office
supplies).
B. By January 15 of each year, Tenant shall furnish to
Landlord a list of all Permitted Material Managed on the Leased Premises during
the prior year.
C. For purposes of this Lease, the following terms shall mean
the following:
"Permitted Materials" means reasonable amounts of Hazardous
Materials that are Managed in the ordinary course of Tenant's business and use
of the Leased Premises for the purposes set forth in the Summary Page, provided
such Permitted Materials are properly Managed in accordance with applicable
Environmental Laws.
"Hazardous Materials" means (i) asbestos in any form, (ii)
urea formaldehyde foam insulation, (iii) PCBs, (iv) any substance or waste which
may pose a hazard to the health or safety of the occupants of the Building, (v)
petroleum or petroleum byproducts, or (vi) any flammable explosives, radioactive
or hazardous material, hazardous or solid waste, hazardous or chemical
substance, or any pollutant or contaminant, defined in, listed, or regulated
pursuant to any Environmental Law.
"Manage" means to store, utilize, generate, handle, treat,
transport or dispose of.
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"Environmental Laws" means the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C.
Sections 9601 et seq), and the regulations promulgated pursuant thereto,
or any other federal, state or local environmental law, ordinance, rule,
directive, order, common law ruling, regulation or statute relating to pollution
or protection of human health or the environment.
"Environmental Liabilities" means all costs, expenses, and
liabilities with respect to the presence or Management of Hazardous Materials,
any Hazardous Materials Release or Response Action, including, without
limitation, permits and licenses required pursuant to Environmental Law; any
damages for injury to person, property or natural resources; claims for the cost
or performance of Response Actions; and discharge and satisfaction of all liens,
encumbrances and restrictions on the Leased Premises relating to the foregoing.
"Hazardous Materials Release" shall mean any actual or
threatened release, spill, leak, pumping, pouring, emitting, emptying,
discharge, injection, escaping, leaching dumping or disposing into the
environment (air, land or water) of any Hazardous Materials.
"Response Action" shall mean actions to investigate, study,
sample, test, remove, remediate, cleanup or take other actions in response to
the presence of Hazardous Materials.
12. ENVIRONMENTAL
A. Except for Permitted Materials, Tenant will not introduce, or
permit or suffer the introduction of, Hazardous Materials within the Leased
Premises or the Project.
B. In connection with its use and occupancy of the Leased
Premises, Tenant (i) shall comply with applicable Environmental Laws, (ii) shall
obtain, maintain and comply with all necessary permits required by Environmental
Laws for the operation of Tenant's business at the Leased Premises, (iii) shall
not Manage (or permit or acquiesce in the Management of) any Hazardous Materials
at or from the Leased Premises, except for Permitted Materials; (iv) will not
cause or allow any discharge or disposal of any Hazardous Materials, other than
Permitted Materials, to floors, floor drains, storm or sanitary sewer systems,
and will not cause or allow any discharge or disposal of Hazardous Materials to
surface or ground water or the Land surface; (v) shall cause its employees,
agents, licensees, invitees, contractors and other parties under the supervision
or control of Tenant (collectively, "Tenant's Agents") to comply with the
representations, warranties and covenants contained in Sections 11 and 12; and
(vi) shall provide information and documents within its possession or control
related to Tenant's compliance with Environmental Laws and the terms of Sections
11 and 12, upon the written request of Landlord.
C. In the event Tenant or any of Tenant's Agents violates or is
found to be in violation of any Environmental Law with respect to the Leased
Premises or their activities conducted thereon, Tenant shall promptly cure such
violation. In the event of any Hazardous Materials Release at, on, under, from
or about the Leased Premises or the Project caused by Tenant or any of Tenant's
Agents, Tenant shall promptly undertake such Response Actions as are necessary
to comply with Environmental Laws and restore the Leased Premises and any
affected property to their condition prior to such Hazardous Materials Release.
Tenant shall obtain
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Landlord's approval in advance of undertaking any Response Action at the Leased
Premises (except in the event of exigent circumstances, in which case Tenant
shall commence Response Actions immediately and promptly notify and seek
approval from Landlord) and shall promptly cure any violations and promptly
undertake and implement any Response Actions within a reasonable period of
time, but no later than any cure period allowed by law. Failure to do so shall
constitute a default under this Lease (without any notice to Tenant required),
and Landlord may (but shall not be obligated to) do whatever is necessary to
comply with Environmental Laws or respond to the Hazardous Materials Release,
acting either in its own name or in the name of Tenant pursuant to this
Section, and the reasonable cost thereof, shall be borne by Tenant and thereupon
become due and payable as additional rent hereunder. Tenant shall give to
Landlord and its agents and employees access to the Leased Premises for such
purposes and hereby specifically grants to Landlord a license to remove Tenant's
Hazardous Materials and take such other actions as are necessary or prudent to
comply with Environmental Laws, acting either in its own name or in the name of
the Tenant pursuant to this Section.
D. Landlord agrees to provide Tenant with a copy of a Phase I
Environmental Assessment prior to commencement of the Term. Landlord hereby
indemnifies and holds Tenant and each of its officers, directors, shareholders,
managers, employees and agents harmless from, against, for and in respect of,
Environmental Liabilities to the extent arising from the presence of Hazardous
Materials on the Leased Premises prior to commencement of the Term.
E. Tenant hereby indemnifies and holds Landlord and each of its
officers, directors, shareholders, managers, employees and agents harmless from,
against, for and in respect of, any and all damages, losses, orders, sanctions,
settlement payments, obligations, liabilities, claims, actions or causes of
actions, encumbrances, fines, penalties, and reasonable costs and expenses
suffered, sustained, incurred or required to be paid by any such indemnified
party (including, without limitation, reasonable fees and disbursements or
attorneys, engineers, laboratories, contractors and consultants) because of, or
arising out of or relating to (i) Tenant's breach of any of its
representations, warranties and covenants under this Section, and (ii) any
Environmental Liabilities to the extent caused by the acts or omissions of
Tenant or Tenant's Agents in connection with the Leased Premises.
F. Tenant shall immediately notify Landlord in writing of the
occurrence of any Hazardous Materials Release, violations of Environmental Laws,
pending or threatened regulatory actions, or claims made by any governmental
authority or third party relating to any Hazardous Materials or Hazardous
Materials Release at, on, under or from the Leased Premises, and shall promptly
furnish Landlord with copies of any correspondence, legal pleadings or other
documents in connection therewith. Landlord shall have the right (but not the
obligation) to notify any governmental authority of any information which comes
to its attention with respect to any Hazardous Materials or Hazardous Materials
Release on or from the Leased Premises.
G. Upon expiration of the Term, Tenant shall deliver the Leased
Premises to Landlord free of Hazardous Materials introduced by Tenant or
Tenant's Agents and free of any liens, encumbrances and restrictions relating to
Environmental Liabilities caused by or resulting from any act or omission of
Tenant or any of Tenant's Agents so that the environmental condition
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of the Leased Premises shall conform with all applicable Environmental Laws and
shall be substantially the same as at the beginning of the Term.
H. In the event a lien is filed against the Land or Building by
a governmental or quasi-governmental authority with respect to Environmental
Laws, arising from an intentional or unintentional act or omission of Tenant or
any of Tenant's Agents, Tenant shall, within twenty (20) days from the date that
Tenant is notified that the lien has been placed against the Land or Building or
within such shorter period if such government authority has commenced steps to
cause the Land or Building to be sold pursuant to the lien, either (i) cause
said lien to be removed from the Land or Building, and/or (ii) furnish a bond or
title insurance endorsement regarding such lien in form and substance
satisfactory to Landlord in Landlord's sole, absolute discretion.
I. Tenant agrees that Landlord and its agents and contractors
shaft have the right (but not the obligation) at reasonable times to conduct
such environmental inspections and tests ("Inspections") of the Leased Premises
as Landlord shall reasonably deem necessary or advisable, and Tenant hereby
grants to Landlord and its agents and contractors the right to enter the Leased
Premises to perform the same. Unless such Inspections could not be performed
effectively during non-business hours, they shall be conducted during
non-business hours. Landlord shall notify Tenant no less than forty-eight (48)
hours prior to any Inspection, except in emergencies, when no notice shall be
required. Landlord shall pay the cost of any Inspection unless the same
discloses a violation of Environmental Laws or the presence of any Hazardous
Materials other than Permitted Materials on the Leased Premises or any other
property caused by Tenant or any of Tenant's Agents, in which case Tenant shall
pay the cost thereof.
J. The foregoing indemnification and responsibilities of Tenant
under this Section shall survive the termination or expiration of this Lease,
except that the indemnification in Section 12.E shall expire two (2) years after
the Lease is terminated if Tenant, at its sole cost and expense, demonstrates to
Landlord that Tenant has no liability to Landlord under Section 12.E. Tenant
shall be deemed to have made the demonstration described in the previous
sentence if Tenant delivers to Landlord an environmental report prepared by an
environmental consultant acceptable to Landlord which concludes that there are
no Hazardous Materials at, on, under, or released from the Leased Premises that
could be attributed to the operations of Tenant or Tenant's Agents.
13. DEFAULT AND REMEDIES
A. The following events shall be deemed to be events of default
by Tenant under this Lease:
(i) Tenant shall have failed to pay any installment of rent
or any other charge provided herein, or any portion thereof, within five (5)
days after the same shall be due and payable and such failure shall continue for
seven (7) days after written notice from Landlord to Tenant of such failure;
provided, however, that Tenant shall not be entitled to more than two (2)
notices of such failure during any period of twelve (12) consecutive months and
if after two (2) such notices are given in any period of twelve (12) consecutive
months, Tenant fails, during such period of twelve (12) consecutive months,
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to pay any such amounts within five (5) days after the same shall become due or
payable, such failure shall constitute an event of default by Tenant without
further notice by Landlord; or
(ii) Tenant shall have failed to comply with any other provisions
of this Lease and shall not cure such failure within forty-five (45) days after
Landlord, by written notice, has informed Tenant of such noncompliance (in the
case of a default which cannot with due diligence be cured within a period of
forty-five (45) days, Tenant shall have such additional time to cure same as may
be reasonably necessary, provided Tenant proceeds promptly and with due
diligence to cure such default after receipt of said notice); or
(iii) Tenant or its Guarantor shall file in any court a petition
in bankruptcy or insolvency or for the reorganization or arrangement within the
meaning of the present or any future federal or state bankruptcy act for the
same or similar relief, or for the appointment of a receiver or trustee of all
or a portion of Tenant's or such guarantor's property; or
(iv) An involuntary petition of the kind referred to in
subparagraph (iii) herein shall be flied against Tenant or its Guarantor, and
such petition shall not be vacated or withdrawn within one hundred fifty (150)
days after the date of filing thereof, or
(v) Tenant or its Guarantor shall make an assignment for the
benefit of creditors; or
(vi) Tenant or its Guarantor shall be adjudicated a bankrupt; or
(vii) A receiver shall be appointed for the property of Tenant or
its Guarantor by a court of competent jurisdiction; or
(viii) Tenant shall cease to conduct its normal business
operations in the Leased Premises or shall vacate or abandon the Leased Premises
and leave same vacated or abandoned for a period of twenty (20) days; or
(ix) Tenant shall do or permit to be done anything which creates
a lien upon the Leased Premises which is not paid, discharged or bonded over
promptly after written notice to Tenant;
then Landlord may elect either (a) to cancel and terminate this Lease or (b) to
terminate Tenant's right to possession only without terminating the Lease.
B. In the event of Landlord's election to terminate Tenant's
right to possession only, Landlord may, at Landlord's option, enter into the
Leased Premises and take and hold possession thereof, without such entry into
possession terminating this Lease or releasing Tenant in whole or in part from
Tenant's obligation to pay the rent and other charges hereunder for the full
stated Term, such amounts shall continue to be due on the days such rent and
other charges are due under this Lease, except that the Unamortized Tenant
Improvement Cost shall be due and payable immediately upon demand by Landlord.
Upon such re-entry, Landlord may
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remove all persons and property from the Leased Premises and such property may
be removed and stored in a public warehouse or elsewhere at the cost of, and for
the account of Tenant, all without service of notice or resort to legal process
and without being deemed guilty of trespass, or becoming liable for any loss or
damage which may be occasioned thereby. Upon and after entry into possession
without termination of the Lease, Landlord shall as reasonable efforts to relet
the Leased Premises, or any part thereof, for the account of Tenant, to any
person, firm or corporation, other than Tenant, for such rent, for such time and
upon such terms as Landlord shall determine and deem proper, and Landlord shall
not be required to accept any tenant offered by Tenant or to observe any
instruction given by Tenant about such reletting. In any such case, Landlord may
clean, make repairs, and redecorate or remodel the premises to the extent deemed
by Landlord necessary or desirable, and Tenant shall, upon demand, pay the
reasonable costs thereof, together with Landlord's reasonable expenses of
reletting, including commissions. If the consideration collected by Landlord
upon any such reletting for Tenant's account, and after deducting all reasonable
expenses incident thereto, including brokerage fees and legal expenses, is not
sufficient to pay monthly the full amount of the rent provided in this Lease,
Tenant shall pay to Landlord the amount of each monthly deficiency upon demand.
In the event that Landlord shall have terminated Tenant's fight to possession
only, Landlord shall have the right to cancel and terminate this Lease by
serving three (3) days' written notice on Tenant of such further election and to
pursue any remedy provided in Section 13.C below.
C. In the event of Landlord's termination, Landlord may, in
addition to any. other remedy at law or in equity that may be available to
Landlord, hold Tenant liable for damages in an amount equal to the rent and
other charges that would have been owing by Tenant hereunder for the balance of
the Term had this Lease not been terminated, less the proceeds, if any, of any
reletting of the Leased Premises by Landlord subsequent to such termination,
deducting therefrom Landlord's reasonable costs and expenses of reletting as
provided in Section 13.B. Landlord shall be entitled to collect such damages
monthly from to Tenant on the days on which rent would have been payable
hereunder if the Lease had not been terminated, except that the Unamortized
Tenant Improvement Cost shall be due and payable immediately upon demand by
Landlord.
D. If Tenant shall fail to remove any of Tenant's personal
property upon the abandonment thereof or upon the termination of this Lease for
any cause whatsoever, Landlord, at its option, may remove the same in any
commercially reasonable manner that it shall choose and store the said effects
without liability to Tenant for toss thereof in any public or private warehouse,
and Tenant agrees to pay Landlord on demand any and all reasonable expenses
incurred in such removal, including court costs and reasonable attorney's fees
and storage charges on such personal property for any length of time the
personal property shall be in storage; or Landlord, at its option, without
notice, may sell said personal property, or any of the same, at public or
private sale and without legal process, for such prices as Landlord may obtain,
and apply the proceeds of such sale upon any amounts due under this Lease from
Tenant to Landlord and upon the expense incidental to the removal, storage and
sale of the personal property, any excess shall be retained by Landlord unless
demanded by Tenant within thirty (30) days after sale.
E. In the event of any breach hereunder by Tenant, Landlord may
immediately or at any time thereafter, without notice, cure such breach for the
account and at the expense of
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Tenant. If Landlord at any time by reason of such breach is compelled to pay, or
elects to pay, any reasonable sum of money or do any reasonable act which will
require the payment of any reasonable sum of money, or is compelled to incur any
expense, including reasonable attorney's fees, the sum or sums so paid by
Landlord, with interest thereon at the rate specified in Section 2.E from the
date of payment, thereof, shall be deemed to be due from Tenant to Landlord on
the first day of each month following the payment of such respective sums or
expenses.
F. If at any time or times hereafter, if by reason of default,
eviction or other action at law or equity, Landlord employs counsel for advice
with respect to this Lease or any related landlord-tenant law issue, or employs
counsel to intervene, file an eviction, complaint, notice, answer, motion or
other pleading in any suit or proceeding relating to this Lease or the tenancy
relationship, or to attempt to collect rents under or to enforce this Lease
against Tenant, its assign(s) or subtenant(s), then, in any of such events, all
of the reasonable attorney's fees arising from any such legal services, and any
expenses, costs and charges relating thereto, shall be an additional liability
owing hereunder by Tenant to Landlord and shall be payable on demand.
G. Tenant hereby expressly waives, to the full extent waivable,
any and all rights of redemption granted by or under any present or future laws
in the event of Tenant being evicted or dispossessed for any cause, or in the
event of Landlord obtaining possession of the Leased Premises by reason of the
violation by Tenant of any of the covenants or conditions of this Lease, or
otherwise.
H. In the event of Tenant's default hereunder, Landlord may, in
addition to all other rights and remedies, re-enter the premises, change any and
all of the locks on doors or other barriers, and distrain, seize, remove or
store all property upon the Leased Premises. Tenant hereby agrees that all such
acts by Landlord shall not constitute an eviction, constructive or otherwise,
shall not terminate this Lease, and shall not render Landlord liable for
trespass, forcible entry and detainer, conversion, or in any other way,
whatsoever. Tenant shall pay all reasonable costs and expenses incurred by
Landlord in doing such acts. If the default is not corrected within the time
periods set forth in Section 13.A, Landlord may dispose of Tenant's personal
property, without further notice to Tenant, as described in Section 13.D.
I. Tenant waives and disclaims any present or future right to
withhold any rental payment or any other payment due under this Lease, or to
set-off in any action for rental, against any obligation of Landlord, however
incurred, and Tenant hereby agrees that it will not claim or assert any right to
so withhold or set-off.
J. Should Landlord be in default under the terms of this Lease,
Landlord shall have reasonable and adequate time in which to cure the same after
written notice by Tenant to Landlord.
14. ASSIGNMENT OR SUBLETTING
A. It is agreed that neither the Leased Premises nor any part
thereof shall be sublet, nor shall this Lease be assigned, by Tenant without the
written consent of the Landlord having been first obtained, which consent shall
not be unreasonably withheld or delayed. No
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assignment for the benefit of creditors, or by operation of law, shall be
effective to transfer any rights to an assignee without the written consent of
Landlord having been first obtained. Notwithstanding the foregoing, Tenant may
assign this Lease or sublet the Leased Premises to any affiliated entity that
controls, is controlled by or is under common control with Tenant.
B. It is agreed that if this Lease be assigned without Landlord's
consent, or if the Leased Premises or any part thereof be sublet or occupied by
anyone other than Tenant without Landlord's consent, Landlord may collect rent
from the assignee, subtenant or occupant, and apply the net amount collected to
the rent herein specified, and no such collection shall be deemed a waiver of
the covenant herein against assignment and subletting, or the acceptance of the
assignee, subtenant or occupant as Tenant, or a release of Tenant from the
complete performance by Tenant of the covenants herein contained on the part of
Tenant to be performed. Notwithstanding any assignment or sublease, Tenant shall
remain fully liable on this Lease and shall not be released from performing any
of the terms, covenants and conditions of this Lease.
C. Landlord in any case (except to an affiliate of Tenant as
provided in subsection A) shall have the right, at its sole option, to terminate
this Lease with respect to that portion of the Leased Premises covered by any
assignment rather than have it assigned, in which event the base rent and
Tenant's Pro Rata Share of Operating Expenses shall be proportionally adjusted.
15. ENCUMBRANCES
A. It is agreed that this Lease is subject and subordinate to the
lien of any trust deeds or mortgages now on or which at any time may be made a
lien upon the Leased Premises, or the Project in which the Leased Premises are
situated, or Landlord's interest therein, and to all advances made or hereafter
to be made upon the security thereof. Tenant agrees to execute and deliver upon
request such further instrument or instruments subordinating this Lease to the
lien of any such trust deeds or mortgages as shall be reasonably required by any
mortgagee or proposed mortgagee. Tenant's subordination to a trust deed,
mortgage, trust or other encumbrances of the Project shall be contingent upon
Tenant's receipt from the holder thereof of a non-disturbance agreement prepared
on such holder's standard form; provided, however, receipt of such
non-disturbance agreement shall be conditioned upon Tenant not being in default
hereunder and holder's reasonable approval of Tenant's financial condition. Such
non-disturbance agreement will provide in substance that so long as Tenant
complies with the terms, covenants and conditions of this Lease, the party
succeeding to Landlord's interest will recognize this Lease.
B. At any time, and from time to time, Tenant and Landlord agree,
upon request in writing from the other party, to execute, acknowledge and
deliver to the other party a statement in writing certifying that this Lease is
unmodified and in full force and effect or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications and the dates to which rent, herein stipulated, and other charges
have been paid, or, if there exists any default under this Lease, describing the
nature of such default.
C. In the event of any sale of the Leased Premises by Landlord,
Landlord shall be and is hereby entirely freed and relieved of all liability
under any and all of its covenants and
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obligations contained in or derived from this Lease arising out of any act,
occurrence or omission occurring aider the consummation of such state; and the
purchaser, at such sale or any subsequent sale of the Leased Premises, shall be
deemed, without any further agreement between the parties or their successors in
interest or between the parties and any such purchaser, to have assumed and
agreed to carry out any and all of the covenants and obligations of Landlord
under this Lease.
16. EMINENT DOMAIN
A. If the whole of the Leased Premises shall be acquired or
condemned by eminent domain for any public or quasi-public use or purpose or
shall be conveyed in lieu thereof (in any such case a "taking"), or if any part
of the Leased Premises or the Project shall be taken and such partial taking
renders the Leased Premises unsuitable for the business of Tenant, then the Term
of this Lease shall cease and terminate as of the date of the transfer of title,
all rentals shall be paid up to that date, and Tenant shall have no claim
against Landlord for the value of any unexpired term of this Lease.
B. In the event of a partial taking of the Leased Premises or the
Project that is not extensive enough to render the Leased Premises unsuitable
for the business of Tenant, this Lease shall continue in full force and effect
with respect to that portion of the Leased Premises not taken, Landlord, to the
extent possible, shall promptly proceed to restore the Leased Premises to a
condition comparable to its condition immediately prior to such taking (less the
portion lost through the taking), and the rent payable by Tenant hereunder
shall be equitably abated during such period of restoration and proportionately
and equitably reduced thereafter.
C. All compensation or damages for any taking shall belong to and
be the property of Landlord without participation by Tenant; however, Tenant may
make any claim for loss or damages directly against the condemning authority,
provided that such claim does not diminish, delay or otherwise adversely affect
Landlord's award.
17. MUTUAL WAIVER OF SUBROGATION
Anything in this Lease to the contrary notwithstanding, neither
Landlord nor Tenant shall be liable to the other for any business interruption
or any loss or damage to property or injury to or death of persons occurring on
the Leased Premises or the adjoining properties, sidewalks, streets or alleys,
or in any manner growing out of or connected with Tenant's use and occupation
of, or Landlord's operation and maintenance of: the Leased Premises, or the
condition thereof: or of sidewalks, streets or alleys adjoining, caused by the
negligence or other fault of Landlord or Tenant or of their respective
employees, agents, guests, invitees, licensees, subtenants or assignees, to the
extent that such business interruption or loss or damage to property or injury
to or death of persons is covered by or indemnified by proceeds received from
insurance carried by the other party (regardless of whether such insurance is
payable to or protects Landlord or Tenant or both) or for which such party is
otherwise reimbursed; and Landlord and Tenant each hereby respectively waives
all right of recovery against the other, its employees, agents, guests,
invitees, licensees, subtenants and assignees, for any such loss or damage to
property or injury to or death of persons to the extent the same is covered or
indemnified by proceeds received from any such insurance, or for which
reimbursement is to otherwise received. Nothing in this Section
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contained shall be construed to impose any other or greater liability upon
either Landlord or Tenant than would have existed in the absence of this
Section. Landlord and Tenant will cause their respective insurers to issue
appropriate waiver of subrogation fights endorsements to all appropriate
policies of insurance carried in connection with the Project and the Leased
Premises or the contents of either of them whereby such insurers consent to the
mutual releases of liability contained in this Section.
18. ADDITIONAL COVENANTS AND AGREEMENTS
A. Tenant covenants and agrees to comply with all lawful orders,
regulations and requirements issued by any federal, state or municipal
government, or any department or division thereof, insofar as the same are
applicable to the possession and occupancy of the Leased Premises; Landlord
covenants and agrees to comply with all lawful orders, regulators and
requirements issued by any federal, state or municipal government or any
department or division thereof, insofar as the same are applicable to the
Project. Tenant further covenants not to use the Leased Premises for any
purposes now or hereafter prohibited by the laws of the United States, the state
in which the Project is located or applicable ordinances or for any purpose
inconsistent with a building of the type and nature of the Project.
Notwithstanding the foregoing, Tenant shall be responsible for all costs of
compliance with the Americans with Disabilities Act (ADA) as a result of
Tenant's occupancy of the Leased Premises and any additional costs incurred by
Landlord as a result of such occupancy shall be paid by Tenant.
B. Tenant covenants and agrees to indemnify and hold harmless
Landlord, its officers, directors, shareholders, managers, agents and employees,
from and against all liability, obligations, claims, damages, penalties, causes
of action, costs and expenses, including without limitation, reasonable
attorneys' fees, imposed upon, incurred by or asserted against Landlord or any
of its officers, agents or employees by reason of any of the following is
occasioned wholly or in part by any act or omission of Tenant or any of its
employees, agents, guests, invitees, licensees or anyone claiming by, through,
or under Tenant (and the term "Tenant" as used in this paragraph shall be deemed
to mean all such parties): (i) any accident, injury to or death of any person or
loss of or damage to any property occurring in, upon, at, or from the Leased
Premises or arising from or out of any occupancy by Tenant of the Leased
Premises; (ii) any act or omission of Tenant; (iii) any use which may be made
of, or condition existing upon, the Leased Premises; (iv) any improvements,
fixtures or equipment upon the Leased Premises; (v) 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; (vi) any violation of any law, ordinance,
order, rule or regulation of governmental authorities having jurisdiction over
Tenant, Tenant's employees, agents, guests, invitees or licensees or anyone
claiming by, through or under Tenant; or (vii)any repairs, maintenance,
improvement, alteration or addition to the Leased Premises made by, through or
under Tenant.
C. Tenant covenants and agrees that, in case any action, suit or
proceeding is brought against Landlord or any of its officers, agents or
employees by reason of any of Tenant's indemnification obligations under this
Lease, Tenant shall, upon notice from Landlord, at Tenant's sole cost and
expense, defend Landlord or such officer, agent or employee in any such action,
suit or proceeding by counsel reasonably satisfactory to Landlord.
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D. 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, Tenant's employees, agents, guests,
invitees or licensees or anyone claiming by, through or under Tenant, resulting
from any cause whatsoever other than Landlord's gross negligence or willful
misconduct. Neither Landlord nor its officers, agents or employees shall be
liable to Tenant for any damage by or from any act or negligence by any
co-tenant or other occupant of the Building or by any owner or occupant of
adjoining or contiguous property. Tenant acknowledges that Landlord has no
obligation to provide security for the Leased Premises or the Project. All
property belonging to Tenant or any occupant of the Leased Premises shall be
maintained at the sole risk of Tenant or such occupant, and neither Landlord nor
any of its officers, agents or employees shall be liable for any damage to or
theft or misappropriation of such property, nor for any damage to property
entrusted to any of Landlord's officers, agents or employees.
E. Without the prior written consent of Landlord and except as
provided in the Plans, Tenant shall not place or display any sign,
advertisement, notice or other lettering on any part of the outside of the
Leased Premises or the Project of which they form a part, or on the surface
of any exterior glass, attach any awning or other projections to the outside
walls of the Leased Premises, or install any window shades, blinds, drapes or
other window covering or any internal lighting that may be visible from the
exterior of the Leased Premises.
F. No act or thing done by Landlord or Landlord's agents during
the Term hereof, or any extension hereof, shall be deemed an acceptance of a
surrender of the Leased Premises, and no agreement to accept such surrender
shall be valid unless in writing signed by Landlord. No employee of Landlord or
of Landlord's agents shall have any power to accept the keys of the Leased
Premises prior to the termination of this Lease. The delivery of keys to any
employee of Landlord, or of Landlord's agents, shall not operate as a
termination of this Lease or a surrender of the Leased Premises. No payment by
Tenant, or receipt by Landlord, of a lesser amount than the rent and other
charges herein stipulated, shall be deemed to be other than on account of the
earliest stipulated rent, nor shall any endorsement or statement on any check or
any letter accompanying any check, or payment as rent, be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
available to Landlord.
G. Tenant agrees to furnish to Landlord annual audited financial
statements of the Guarantor, Jenoptik AG within one hundred fifty (150) days
after the end of each fiscal year. If additional information is required by
Landlord to secure a loan on the property, M & W Holding and/or Jenoptik AG will
furnish such information in a format that does not disclose any proprietary
information.
H. At the election of the encumbrancer, Tenant shall, in the
event of any foreclosure of any encumbrances, attorn to the purchaser upon any
such foreclosure sale and recognize such purchaser as the Landlord of this
Lease.
I. Tenant covenants and agrees that no diminution of light, air
or view by any structure that may hereafter be erected (whether or not by
Landlord) shall entitle Tenant to any
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reduction of rent or other charges under this Lease, result in any liability of
Landlord to Tenant, or in any way affect this Lease or Tenant's obligations
hereunder.
19. NO PARTNERSHIP, JOINT VENTURE OR AGENCY
It is expressly understood that Landlord and Tenant are not
partners or joint venturers and that Landlord has no right, title or interest in
and to the business of Tenant, and that Landlord has no right to represent or
bind Tenant in any respect whatsoever, and that nothing herein contained shall
be deemed, held or construed as making Landlord a partner, joint venturer or
associate of Tenant, nor as rendering Landlord liable for any debts, liabilities
or obligations incurred by Tenant. Neither is the relationship between Landlord
and Tenant that of principal and agent. It is expressly understood that the
relationship between the parties hereto is, and shall at all times remain, that
of Landlord and Tenant.
20. HOLDING OVER
It is agreed that if, after the expiration of this Lease, Tenant
shall, with Landlord's consent, remain in possession of the Leased Premises and
shall continue to pay rent without written agreement as to such possession,
Tenant shall be regarded as a tenant from month to month, at a monthly rental,
payable in advance, equal to two (2) times the monthly rental for the last full
month immediately prior to said expiration (unless at least six (6) months prior
to expiration of the Lease the Tenant, in writing, notifies Landlord of Tenants
desire to extend the Lease for an additional three (3) months, then for that
three (3) month period the monthly rental will be equal to 1.1 times the monthly
rental for the last full month immediately prior to said expiration), and shall
otherwise be subject to all the terms and conditions of this Lease.
21. QUIET ENJOYMENT
Upon payment by Tenant of the rents and other charges herein
provided, and upon the observance and performance of all of the covenants, terms
and conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the Leased Premises for the Term hereby
leased without hindrance or interruption by Landlord or any other person or
persons lawfully or equitably claiming by, through or under Landlord, subject,
nevertheless, to the terms and conditions of this Lease.
22. LANDLORD'S RESERVED RIGHTS
Landlord shall have the following rights, exercisable without
notice to Tenant (except as expressly provided herein) and without liability to
Tenant for damage or injury to persons, property or business (except to the
extent the same is caused by Landlord's gross negligence or willful misconduct)
and without being deemed an eviction or disturbance of Tenant's use or
occupancy of the Leased Premises or giving rise to any claim for setoff or
abatement of rent: (i) to change the building name or street address upon thirty
(30) days prior written notice to Tenant; (ii) to install, alter and maintain
signs on the exterior and/or interior of the Building and any place on the
Project, except within the Leased Premises; (iii) at any normal business hour,
to enter the Leased Premises to view and inspect the same, to exhibit the Leased
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Premises to prospective lenders, prospective purchasers or, within the last six
(6) months of the Term and upon reasonable notice to Tenant, prospective tenants
(with the understanding that Tenant may restrict viewing of or access to
confidential or proprietary processes), to post notices of non-responsibility,
to supply any service to be provided by Landlord or Tenant hereunder, and to
make such repairs, alterations, improvements and additions to the Leased
Premises or the Project that Landlord may deem necessary or desirable, and for
that purpose may erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed, always
providing that the entrance to the Leased Premises shall not be blocked thereby
and further providing that the business of Tenant shall not be interfered with
unreasonably; (iv) to enter the Leased Premises at all times for the purpose of
responding to an actual or apparent emergency, and in such event to use any and
all means that Landlord may deem proper to open doors and/or gates to obtain
entry to the Leased Premises; (v) to enter and alter, renovate and redecorate
the Leased Premises for reoccupancy either during the last month of the Term if,
during or prior to such time, Tenant has vacated the Leased Premises or any time
after Tenant abandons the Leased Premises; (vi)to grant to any party the
exclusive right to conduct any business or render any service in the Project,
provided such exclusive right shall not operate to exclude Tenant from using the
Leased Premises for the purpose expressly permitted by this Lease; (vii) to
place on the Project a sign or signs advertising the Project for sale or, during
the last six (6) months of the Term, the Leased Premises for lease, and (viii)
to make such reasonable rules and regulations, and amendments thereto, as
Landlord deems necessary or desirable, which shall be as binding on Tenant as if
set forth herein, provided they shall apply uniformly to all the tenants in the
Project and are not consistent with other terms and conditions of this Lease.
Nothing herein contained shall be deemed or construed to impose upon Landlord
any obligation, responsibility or liability whatsoever for the care, maintenance
or repair of the Project or any part thereof except as otherwise herein
specifically provided.
23. FORCE MAJEURE
Anything in this Lease to the contrary notwithstanding,
providing such cause is not due to the willful act or neglect of the party,
neither party shall be deemed in default with respect to the performance of any
of terms, covenants and conditions of this Lease if the same shall be due to any
strike, lockout, civil commotion, war-like operation, invasion, rebellion,
hostilities, military or usurped power, sabotage, governmental regulations,
controls, restrictions or delays, inability to obtain any materials, services,
zoning, Project permits, Acts of God, fire or other unavoidable casualty,
earthquake, floods, explosions, actions of the elements, extreme weather
conditions, undue precipitation, other weather conditions, delays caused by the
other party or other cause beyond the reasonable control of the party.
24. MISCELLANEOUS
A. It is understood by the parties hereto that neither this
Lease nor any memorandum hereof may be recorded by Tenant without Landlord's
prior written consent.
B. The submission of this Lease for examination or execution
does not constitute a reservation of or option for the Leased Premises, and this
Lease becomes effective as a lease only upon execution and delivery thereof by
Landlord and Tenant.
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C. Any notice which may be required to be given hereunder from
either of the parties to the other shall be in writing and shall be personally
delivered, sent by a reputable courier service, or mailed by certified mail,
return receipt requested, with proper postage prepaid, addressed, if to Tenant
at the address set forth in the Summary Sheet prior to occupancy and at the
address of the Leased Premises after occupancy, and if to Landlord at the
address set forth in the Summary Sheet, or at such other address as either party
may hereafter fix, by notice in writing to the other. If notice is sent by
certified mail, said notice shall be effective upon being deposited in the
United States Mail; however, the time period in which a response to any such
notice must be given shall begin to run from the date of receipt on the return
receipt of the notice. Notice delivered by personal service or courier shall be
effective upon delivery to an officer, director or agent of Tenant or an
officer, manager or agent of Landlord. Rejection or other refusal to accept or
the inability to deliver because of changed address of which no notice was given
shall be deemed to be receipt of notice sent.
D. This Lease shall be construed as though the covenants herein
between Landlord and Tenant are independent and are not dependent and Tenant
shall not be entitled to any setoff of the rent or other amounts owing hereunder
against Landlord if Landlord fails to perform its obligations set forth herein.
E. No assent, expressed or implied, to any breach of any one or
more of the covenants or agreements hereof, nor the delay of Landlord in the
assertion of any rights hereunder, shall be deemed to be taken to be a waiver of
any succeeding or other breach. The various rights, remedies, powers, options
and elections of Landlord or Tenant reserved, expressed or contained in this
Lease are cumulative and no one of them shall be deemed to be exclusive of the
others or of such other rights, remedies, powers, options or elections as are
now or may hereafter be conferred upon Landlord or Tenant by law.
F. Tenant acknowledges and agrees that it has not relied upon
any statements, representations, agreements or warranties by Landlord, its
agents or employees, except such as are expressed herein,
G. Landlord and Tenant each covenant to pay, hold harmless and
indemnify the other from and against any and all cost, expense (including, but
not limited to, reasonable attorneys' fees) or liability for any compensation,
commission, charge or claim (whether or not meritorious) by any broker, finder
or other person with respect to this Lease or the negotiation thereof as a
result of the dealings of the indemnifying party, other than any broker listed
as a Participating Broker on the Summary Page. The Participating Broker shall be
compensated by Landlord.
H. Notwithstanding anything to the contrary herein, Landlord's
liability under the Lease shall be limited to Landlord's interest in the
Project.
I. No amendment or modification of this Lease, or any approvals
or contents of Landlord required under this Lease, shall be valid or binding
unless reduced to writing and executed by the parties hereto in the same manner
as the execution of this Lease.
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J. Notwithstanding any other provision contained herein, the
indemnification obligations of either party under any provision of this Lease
shall survive the expiration or earlier termination of this Lease.
K. The term "Landlord" means so far as obligations of Landlord
are concerned, only the owner of the Building at the time in question and, if
any transfer of the title occurs, Landlord herein named (and in the case of any
subsequent transfers, the then grantor) is automatically released from and after
the date of such transfer of all liability thereafter accruing as respects
performance of any obligations of Landlord thereafter to be performed. Any funds
in Landlord's possession at the time of transfer in which Tenant has an interest
will be turned over to the grantee and any amount then due Tenant under this
Lease will be paid to Tenant.
L. Time is of the essence with respect to every provision of
this Lease in which time or performance is a factor.
M. Wherever the words "Landlord" and "Tenant" are used in this
Lease, they shall include "Landlords" and "Tenants" and shall apply to persons,
both men and women, companies, associations, partnerships, corporations, limited
liability companies, trusts and other entities. The section headings are
inserted only as a matter of convenience and for reference, and in no way
define, limit or describe the scope or intent of this Lease.
N. The Exhibits and Addenda, if any be hereto attached, are made
a part hereof and shall be binding upon the parties hereto as if the same were
contained herein, and if any provision of any Exhibit or Addendum shall
conflict in any manner with any other provision of this Lease, the provision of
the Exhibit or Addendum shall prevail. The Summary Page attached hereto is made
a part hereof and shall be binding upon the parties hereto, and if any provision
thereof shall conflict in any manner with any other provision of this Lease or
any Exhibit or Addendum, the provision of Lease, Exhibit or Addendum shall
prevail.
O. All the terms, conditions and covenants to be observed and
performed by the parties hereto shall be applicable and binding upon their
heirs, executors, administrators, successors and assigns.
P. The invalidity or unenforceability of any provision of this
Lease shall not effect or impair the validity of any other provision. The laws
of the state in which the Project is located shall govern the interpretation,
validity, performance and enforcement of this Lease.
Q. In the event of any litigation or arbitration arising out of
this Lease between Landlord and Tenant, the prevailing party shall be awarded
all reasonable costs and expenses thereof, including attorneys' fees, in
addition to any other damages.
R. As a condition to Landlord's execution of this Lease,
Tenant's parent company, Jenoptik AG, a German corporation (the "Guarantor"),
shall unconditionally guarantee Tenant's obligations under this Lease by the
execution of the Guarantee of Lease attached hereto as Exhibit H and delivered
to Landlord with this Lease.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed the day and year first above written.
Tenant:
JENOPTIK INFAB, INC.
By: /s/ Timothy H. Ramsey
-------------------------------
Name: Timothy H. Ramsey
-------------------------------
Title: President
-------------------------------
Landlord:
CLEARFIELD INVESTMENTS, LLC
By: /s/ C. William Kephart
---------------------------------
C. William Kephart - Manager
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EXHIBIT A
LEGAL DESCRIPTION
Lot 2 in CENTENNIAL BUSINESS CENTER NO. 1, in the City of Colorado Springs,
El Paso County, according to the plat thereof recorded in Plat Book Y-3 at
Page 72 as amended by Engineer's Statement recorded July 5, 1985 in
Book 5031 at Page 609.
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EXHIBIT B
SITE PLAN
B-1
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Photo Stencil Assigned Area
[Graphic not shown]
EXHIBIT B
SITE PLAN
31
EXHIBIT C
TENANT IMPROVEMENT COSTS
Lease Rate is based on projected buildout cost of $22.00 per square
foot for a total of $310,930.80. Tenant Improvement Costs includes, but is not
limited to, (i) all architectural and engineering fees and expenses, (ii) all
contractor and construction manager costs and fees, (iii) all permits and taxes,
and (iv) all Landlord's legal fees incurred in conjunction with this lease.
Any increase or decrease in the actual Tenant Improvement Costs from
the $310,930.80 estimate will raise or lower the rent by the increase or
decrease in the estimate, plus a 10.0% interest charge or credit amortized over
the five (5) years of the lease. (e.g. assuming a $20,000 difference from the
estimate plus 10% interest over the five (5) year Lease term would result in a
$429.95 monthly adjustment to the monthly rent.)
Cost breakout by contractor will not be available until after project
is bid in early February 1999.
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[FLOOR PLAN Graphic not shown]
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EXHIBIT D
CONSTRUCTION SCHEDULE
The Leased Premises shall be "Ready for Occupancy" on April 15, 1999,
based on the following conditions (and subject to Section 3.C):
1. Agreement in principal by Jan. 23, 1999
2. Lease signed by Feb. 1, 1999
3. Plans and Work Letter finalized by Feb. 15, 1999
4. Project bid received by Feb. 22, 1999
5. Cost review and final modifications by Feb. 28, 1999
6. Building Permit by Mar. 1, 1999
7. Construction started by Mar. 1, 1999
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EXHIBIT E
LANDLORD SERVICES AND EXPENSES
1. LANDLORD SERVICES
Landlord covenants and agrees so long as the Tenant is not in default
under any of the covenants of this Lease to furnish for Tenant the following
services (to the extent not separately metered to the Leased Premises, payment
for which shall be Tenant's responsibility):
A. Heating and air conditioning in season, to the Common Area during
normal business hours, in such amounts and at such temperatures as are
considered by Landlord to be reasonable (heating and air conditioning will be
separately metered to the Leased Premises);
B. Water, hot and cold, at those points of supply on the Common Area
provided for general use of Tenants (water will be separately metered to the
Leased Premises);
C. Electric current for ordinary use to the Common Area (electricity
will be separately metered to the Leased Premises);
D. Janitorial services for cleaning of the Common Area (but not the
Leased Premises) five (5) days weekly;
E. Other utilities service for the Common Area of the Project in the
manner and to the extent deemed reasonable by Landlord;
F. Insurance for the Project as provided in Section 7.B.; Tenant,
however, shall, at its sole cost and expense, keep all furniture, fixtures,
decorations, interior glass, improvements and equipment in the Leased Premises
insured against loss or damage by fire with extended coverage;
G. Regular maintenance, including without limitation: landscape
maintenance, building, roof and parking lot maintenance, snow removal and
periodic window cleaning, so as to keep in good order, condition and repair, the
Project, Leased Premises and Common Area, except for any damage thereof caused
by an act of negligence of Tenant, its employees, agents, guests, licensees or
contractors.
In case Landlord is prevented or delayed in furnishing any service as set forth
above or otherwise by reason of any cause beyond Landlord's reasonable control,
Landlord shall not be liable to Tenant therefor nor shall Tenant be entitled to
any abatement or reduction in rent by reason thereof nor shall the same give
rise to a claim in Tenant's favor that such absence of service constitutes
actual or constructive, total or partial eviction or renders the Leased Premises
untenantable. Landlord reserves the right to stop any service or utility system,
when necessary by reason of accident or emergency, or until necessary repairs
have been completed, provided, however, that in each instance of stoppage,
Landlord shall exercise reasonable diligence to eliminate the cause thereof.
Except in case of emergency repairs, Landlord will give Tenant reasonable
advance notice of
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any contemplated stoppage and will use reasonable efforts to avoid unnecessary
inconvenience to Tenant by reason thereof.
2. COMMON AREAS.
The "Common Area" of the Project is that part of the Project designed
and available from time to time for the common use of all tenants, including
among other facilities, parking areas, sidewalks, landscaping, curbs, truckways,
delivery passages, enclosed and open malls, loading areas, private streets and
alleys, lighting facilities, drinking fountains, meeting rooms, public toilets,
hallways, lobbies, elevators, service rooms, equipment and the like. Landlord
reserves the right to change from time to time the dimensions and location of
the Common Area of the Project as well as the dimensions, identity and type of
any buildings (except the Leased Premises) of the Project and to construct
additional buildings or additional stories on existing buildings or other
improvements in the Project. Landlord also reserves the right to dedicate
portions of the Common Area and other portions of the Project (except the Leased
Premises) for street, park, utility and other public purposes. Tenant and its
employees, agents, guests, invitees, licensees, sublessees and assignees shall
have the non-exclusive right to use the Common Area, as constituted from time to
time, such use to be in common with Landlord, other tenants of the Project and
other persons entitled to use the same, and subject to such reasonable rules and
regulations governing use as they may be amended from time to time, including
the designation of specific areas in which automobiles owned by Tenant, its
employees, sublessees, concessionaires and licensees may be parked as provided
in Section 6 of the Lease. Tenant shall not take any action which would
interfere with the rights of other persons to use the Common Area. Landlord may
temporarily close any part of the Common Area for such periods of time as may
be necessary to prevent the public from obtaining prescriptive rights or to make
repairs or alterations, provided such closure does not unreasonably interfere
with Tenant's use or enjoyment of the Leased Premises.
3. LANDLORD OPERATING COSTS.
A. The Landlord "Operating Costs" shall be all costs of any kind or
nature paid or incurred by Landlord in operating, maintaining and managing the
Project in a manner required herein and otherwise deemed by Landlord to be
reasonable and appropriate, and shall include but not be limited to the
following:
(i) all costs of and charges for providing heat, ventilation
and air conditioning ("HVAC"), water (including sewer and sanitary and
storm drainage costs and taxes based on water consumption), gas,
electricity and other utilities (except metered utilities to the Leased
Premises, for which Tenant shall be responsible, and to other leased
premises in the Building, for which the tenants thereof will be
responsible);
(ii) real estate taxes and assessments levied upon or with
respect to the Project (except for income taxes or taxes based on
receipts of rentals, unless the same shall be in substitution for or in
lieu of a real estate tax or assessment); personal property taxes
imposed upon fixtures, machinery, equipment, apparatus, systems and
appurtenances in, upon or with respect to the Project;
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(iii) fees for required licenses and permits;
(iv) reasonable expenses incurred for tax consultants and in
contesting any taxes, assessments, impositions or license or other fees
with any governmental authority (and in the event of such protest, the
determination of Operating Costs shall be adjusted as applicable);
(v) costs of trash and garbage disposal, snow and ice removal,
janitorial and cleaning services, including window cleaning, and
security services, if any;
(vi) costs of inspection, maintenance, repairs and component
replacement of the Project, including the roof, plumbing and electrical
system, HVAC systems, other mechanical systems, structural components
and replacements of machinery and equipment used in connection
therewith;
(vii) costs of maintaining, installing, planting and
replacing landscaping, including sprinkler systems and medians;
(viii) costs of maintaining, repairing, replacing lighting,
restriping, repaving and painting parking areas, curbs, walkways,
drainage facilities and common areas;
(ix) costs for casualty, liability and other insurance carried
by Landlord on the Project or any component parts thereof,
(x) labor costs, including wages and other payments, fringe
benefits, withholding taxes, social security taxes, payroll taxes and
workers' compensation and disability insurance (to the extent not
accounted for under paragraphs (xi) and (xv) below);
(xi) professional building management fees and reasonable
legal, accounting, inspection and consultation fees incurred for the
normal and prudent operation of the Project;
(xii) costs of supplies, materials, equipment and tools used
in Project maintenance, including the cost of "relamping" all Project
lighting;
(xiii) costs of capital improvements and structural repairs
and replacements made in or to the Project required by any applicable
laws, ordinances, rules, regulations or orders of any governmental or
quasi-governmental authority;
(xiv) costs of capital improvements designed primarily to
reduce Operating Costs (the costs of which shall be amortized in
accordance with standard accounting practices and only the portion
amortized during the term of this Lease shall be included in Operating
Costs), together with a annual reserve of two percent (2%) of the
Operating Costs for all other capital improvements reasonably necessary
to permit Landlord to maintain the Project;
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(xv) administrative costs equal to ten percent (10%) of the
Operating Costs.
B. Operating Costs shall not include:
(i) income taxes and other impositions of a personal nature
charged or levied against Landlord (except to the extent described in
Paragraph 3.A(ii) above);
(ii) debt service payable by Landlord on any mortgage loans;
(iii) costs reimbursed by insurance proceeds;
(iv) leasing commissions, advertising expenses and other costs
related to entering into and enforcing leases with other tenants in the
Project;
(v) costs attributable to or paid by other tenants in the
Project (including sub-metered utilities to the leased premises of such
tenants);
(vi) interest or penalties resulting from delinquent payment
by Landlord of any taxes unless the taxes are being disputed in good
faith.
C. Tenant shall have the right to inspect or audit Landlord's books and
records relative to the Operating Costs assessed hereunder at any reasonable
time within one hundred eighty (180) days following receipt of an annual
reconciliation statement of such costs. In the event Tenant's inspection or
audit reflects that an error was made in the calculation of Tenant's Pro Rata
share of the Operating Costs, an appropriate adjustment shall be made between
the parties.
D. With respect to any of Landlord's services performed by third
parties, Tenant may request, no more frequently than once in each calendar year,
Landlord to obtain bids for such services from additional providers. Tenant
shall have the right to review such bids and to designate up to three (3)
additional providers from whom Landlord is to obtain bids. Tenant shall not,
however, have the right to approve or require Landlord to accept any bid. In no
event shall Landlord be required to obtain more than three (3) bids on any
particular service.
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EXHIBIT F
COMMENCEMENT DATE CERTIFICATE
THIS COMMENCEMENT DATE CERTIFICATE is made this _______________day of
____________________, 1999 by and between CLEARFIELD INVESTMENTS, LLC
(hereinafter referred to as "Landlord") and JENOPTIK INFAB, INC. (hereinafter
referred to as "Tenant") pursuant to Section 4 of the Lease Agreement
dated___________________ , 1999 (the "Lease") by and between Landlord and Tenant
with respect to the Leased Premises described therein.
WHEREAS, Landlord and Tenant have agreed to confirm, pursuant to and in
accordance with Section 4 of the Lease, (i) the Commencement Date of the Lease,
(ii) the Termination Date of the Lease, (iii)the total rentable square feet of
the Leased Premises, (iv)the final Tenant Improvement Cost, (v) Tenant's Pro
Rata Share of Operating Expenses, (vi) the initial annual rent, (vii) an
estimate of the first year's Operating Expenses, and (viii) such other matters
as may be reasonably requested by Landlord;
NOW, THEREFORE, in consideration of the Leased Premises and the mutual
promises and covenants herein contained, Landlord and Tenant hereby agree as
follows:
1. Tenant has possession of the Leased Premises and acknowledges that
the Commencement Date of the Lease shall be _________________and that the
Termination Date of the Lease shall be ___________________. It is understood and
agreed by Landlord and Tenant that any and all of Tenant's covenants and
obligations as by the Lease provided shall become effective as of the said
Commencement Date, including, but not limited to, the payment of base rent,
additional rent, insurance and all other rent and charges as designated by the
terms of the Lease.
2. It is agreed that the Leased Premises consists of ________rentable
square feet.
3. It is agreed that the final Tenant Improvement Cost is $
4. Tenant's Pro Rata Share of Operating Expenses is _____% and the
Operating Expenses for the balance of 1999 is estimated to be $___________
payable $________ per month as provided in Section 2D of the Lease.
5. The base annual rent throughout the initial five-year term of the
Lease shall be as follows:
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Rent/Sq. Foot Monthly Base Rent Base Annual Rent
------------- ----------------- ----------------
Year 1 $ $ $
Year 2 $ $ $
Year 3 $ $ $
Year 4 $ $ $
Year 5 $ $ $
6. The Leased Premises have been accepted herewith by Tenant in their
"as is" condition upon the Commencement Date (subject to punch list items as
provided in Section 3.B of the Lease).
EXCEPT as may be modified hereby, all terms, provisions, covenants and
conditions of the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to
be executed by their duly authorized representatives on the day and year first
above written.
LANDLORD: TENANT:
CLEARFIELD INVESTMENTS, LLC JENOPTIK INFAB, INC.
By:
--------------------------- By: /s/ Timothy H. Ramsey
C. William Kephart -- Manager Its: President
ACKNOWLEDGED AND AGREED TO BY
THE UNDERSIGNED AS GUARANTOR OF
TENANT'S OBLIGATIONS UNDER THE
LEASE
JENOPTIK AG
By:
----------------------------
Its:
----------------------------
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EXHIBIT G
PARKING AGREEMENT
A. Tenant (and Tenant's Agents) shall have the right, at no charge, to
use the number of assigned parking spaces as set forth on the Summary Page in
the locations shown on the Site Plan attached to the Lease as Exhibit B by
Landlord (the "Spaces") in the surface parking lot in the Project (the "Parking
Lot"). The rights of Tenant to the Spaces shall be referred to herein as the
"Parking Privileges." Tenant's use of the Parking Lot shall be in common with
other tenants of the Building and any other parties permitted by Landlord to use
the Parking Lot. Tenant acknowledges that Landlord makes no representations
regarding the availability of unassigned spaces in the Parking Lot, except as
set forth in such Site Plan.
B. Tenant's right to the Parking Privileges shall commence at the
Commencement Date of the Lease and shall continue for the Lease Term unless
sooner terminated. The Parking Privileges shall automatically terminate upon the
expiration or earlier termination of the Lease Term or any extensions thereof.
Notwithstanding the foregoing, Tenant shall provide Landlord thirty (30) days
prior written notice if Tenant no longer wishes to use any of the Spaces.
C. Landlord shall have the right at any time to change the arrangement
or location of the Spaces, provided they shall be in substantially the same area
as shown on the Site Plan, or to regulate the use of the Spaces and the Parking
Lot without incurring any liability to Tenant or entitling Tenant to any
abatement of rent. Among other things, Landlord shall be entitled to assign
designated areas or spaces of the Parking Lot for use by particular persons or
groups of persons (and Tenant shall refrain from parking in such areas and
spaces), to number, renumber or otherwise identify spaces or to require decals
or other forms of identification for users of the Parking Lot.
D. Use of the Parking Lot is subject to the following rules, as well as
such additional or modified rules and regulations as may be adopted from time to
time by Landlord as provided in Section 22 of the Lease:
1. Tenant shall park only in parking spaces and not on ramps,
corridors, approaches or other areas which are not designated nor intended for
use as parking areas.
2. Tenant shall observe the special hours of opening, closing
and non-use of the Parking Lot when closings are necessitated for repairs,
cleaning and rehabilitation. Tenant is not entitled to any abatement in rent
should any repair or rehabilitation result in Tenant not being provided the
Spaces.
3. Tenant shall use the Parking Lot only for standard vehicle
parking.
4. Tenant shall not allow unauthorized vehicles to use the
Spaces and, except for emergencies, shall not repair nor authorize service to
vehicles parked in the Parking Lot.
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E. If any portion of the Parking Lot shall be damaged by fire or other
casualty or shall be taken by right of eminent domain or by condemnation or
shall be conveyed in lieu of any such taking, then the Parking Privileges shall
automatically cease and terminate until the Parking Lot is restored (if at all)
as provided in Sections 8 and 16 of the Lease.
F. Tenant shall not be permitted to assign the Spaces or any interest
therein without the prior written consent of Landlord (except to an affiliate of
Tenant in connection with the assignment of the Lease or a sublease of the
Leased Premises pursuant to Section 14.A of the Lease), which consent may be
granted or withheld in Landlord's sole discretion. Tenant shall remain primarily
liable for the performance of the obligations of Tenant hereunder
notwithstanding any assignment or occupancy arrangement permitted or consented
to by Landlord.
G. Neither Landlord nor its officers, agents or employees shall be
liable for any damage, fire, theft or loss to vehicles or other properties or
injuries to persons occurring in the Parking Lot or arising out of the use of
the Parking Lot, whether caused by theft, vandalism, collision, moving vehicle,
explosion or any other activity of occurrence. Tenant, its employees, agents,
guests, invitees and licensees, assume the risk of such loss or damage and shall
indemnify and hold harmless Landlord, its officers, agents and employees,
harmless from and against any and all claims and damages incurred by Landlord,
its officers, agents and employees, arising from use of the Parking Lot by
Tenant or its employees, agents, guests, invitees or licensees including all
costs, reasonable attorneys' fees, expenses and liability arising out of any
such claim or action. Tenant acknowledges that Landlord will not and shall not
be obligated to have an agent or attendant upon the Parking Lot at any time.
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EXHIBIT H
GUARANTEE OF LEASE
THIS GUARANTEE OF LEASE (this "Guarantee") made this 04 day of March
1999 by JENOPTIK AG, a German Corporation (hereinafter referred to as
"Guarantor").
WHEREAS, a certain Lease Agreement of even date herewith (the "Lease")
has been, or will be, executed by and between Clearfield Investments, LLC, a
Colorado limited liability company, therein referred to as "Landlord", and
Jenoptik INFAB, Inc., therein referred to as "Tenant" for the Leased Premises
located in the building located at 4725 Centennial Drive, Colorado Springs,
Colorado as more particularly described therein;
WHEREAS, Landlord under said Lease requires as a condition to its
execution of the Lease that the undersigned guarantee the full performance of
the obligations of Tenant under the Lease; and
WHEREAS, Guarantor is desirous that Landlord enter into said Lease with
Tenant;
NOW THEREFORE, in consideration of the execution of the Lease by the
parties thereto, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Guarantor hereby unconditionally
guarantees the full performance of each and every term, covenant and condition
of the Lease to be kept and performed by Tenant, including without limitation
the payment of all rentals and other charges to accrue thereunder and the
discharge of liens and the performance of Tenant's obligations under the Lease.
Guarantor further agrees as follows:
1. The covenants and agreements contained herein shall continue in favor
of Landlord notwithstanding any assignment, extension, modification, amendment
or alteration of the Lease entered into by and between the parties thereto, or
their successors or assigns, whether or not consented to by the undersigned, and
no assignment, extension, modification, amendment or alteration of the Lease
shall in any manner release or discharge the undersigned.
2. This Guarantee will continue unchanged by any bankruptcy,
reorganization or insolvency of Tenant or any successor or assignee thereof or
by any disaffirmance or abandonment by a trustee or other successor to Tenant.
3. In the event Landlord assigns or transfers the Lease, to the same
extent, Landlord may, without notice, assign this Guarantee in whole or part and
no assignment or transfer of the Lease or this Guarantee shall operate to
extinguish or diminish the liability of the Guarantor hereunder.
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4. The liability of Guarantor under this Guarantee shall be primary and
in any right of action which shall accrue to Landlord under the Lease, Landlord
may, at its option, proceed against Guarantor without having commenced any
action or having obtained any judgment against Tenant.
5. Guarantor shall pay Landlord's reasonable attorney's fees and all
costs and other expenses incurred in any collection or attempted collection or
in any negotiations relative to any collection with respect to the Lease or this
Guarantee.
Landlord may settle or compromise with Tenant and/or any other party or parties
liable with respect to the Lease, all or any part of Tenant's liability or
obligations thereunder, may exchange, release or surrender any security which it
may hold, and may waive compliance with any of the terms or provisions contained
in the Lease, all without in any way affecting Guarantor's obligation under this
Guarantee (except to the extent of any settlement or compromise) and without
notice to Guarantor. Guarantor hereby waives any rights of subrogation it may
have with respect to Tenant or this Guarantee.
In no case shall Guarantor be liable for any amounts due under this Lease, which
have been paid to Landlord or have been settled or compromised by Landlord.
8. In all cases, any and all correspondence with Jenoptik AG will also
be sent to Jenoptik Infab, Inc., via certified mail.
9. The use of the singular herein shall include the plural. The terms
and provisions of this Guarantee shall be binding upon and inure to the benefit
of the respective successors and assigns of the parties herein named.
10. This guarantee is limited to a maximum amount of $1,000,000.00 (one
million United States Dollars) and it ends latest at December 31 ,2005.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
executed as of the 24th day of February, 1999.
GUARANTOR:
JENOPTIK, AG, Carl-Zeiss - Strasse 1,07743 Jena, Germany
By: /s/ Alexander von Witzleben /s/ Dr. Dietmar Kubis
-------------------------------------------------
Alexander von Witzleben Dr. Dietmar Kubis
-------------------------------------------------
Title: Vorstand Vorstand
-------------------------------------------------
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EXHIBIT I
GUARANTEE OF LEASE
THIS GUARANTEE OF LEASE (this "Guarantee") made this day of , 1999
by MEISSNER & WURST U.S. INC., (hereinafter referred to as "Guarantor").
WHEREAS, a certain Lease Agreement of even date herewith (the "Lease")
has been, or will be, executed by and between Clearfield Investments, LLC, a
Colorado limited liability company, therein referred to as "Landlord", and
Jenoptik INFAB, Inc., therein referred to as "Tenant" for the Leased Premises
located in the building located at 4725 Centennial Drive, Colorado Springs,
Colorado as more particularly described therein;
WHEREAS, Landlord under said Lease requires as a condition to its
execution of the Lease that the undersigned guarantee the full performance of
the obligations of Tenant under the Lease; and
WHEREAS, Guarantor is desirous that Landlord enter into said Lease with
Tenant;
NOW THEREFORE, in consideration of the execution of the Lease by the
parties thereto, and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Guarantor hereby unconditionally
guarantees the full performance of each and every term, covenant and condition
of the Lease to be kept and performed by Tenant, including without limitation
the payment of all rentals and other charges to accrue thereunder and the
discharge of liens and the performance of Tenant's obligations under the Lease.
Guarantor further agrees as follows:
1. The covenants and agreements contained herein shall continue in
favor of Landlord notwithstanding any assignment, extension, modification,
amendment or alteration of the Lease entered into by and between the parties
thereto, or their successors or assigns, whether or not consented to by the
undersigned, and no assignment, extension, modification, amendment or alteration
of the Lease shall in any manner release or discharge the undersigned.
2. This Guarantee will continue unchanged by any bankruptcy,
reorganization or insolvency of Tenant or any successor or assignee thereof or
by any disaffirmance or abandonment by a trustee or other successor to Tenant.
3. In the event Landlord assigns or transfers the Lease, to the same
extent, Landlord may, without notice, assign this Guarantee in whole or part and
no assignment or transfer of the Lease or this Guarantee shall operate to
extinguish or diminish the liability of the Guarantor hereunder.
4. The liability of Guarantor under this Guarantee shall be primary and
in any right of action which shall accrue to Landlord under the Lease, Landlord
may, at its option,
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proceed against Guarantor without having commenced any action or having obtained
any judgment against Tenant.
5. Guarantor shall pay Landlord's reasonable attorney's fees and all
costs and other expenses incurred in any collection or attempted collection or
in any negotiations relative to any collection with respect to the Lease or this
Guarantee.
6. Landlord may settle or compromise with Tenant and/or any other party
or parties liable with respect to the Lease, all or any part of Tenant's
liability or obligations thereunder, may exchange, release or surrender any
security which it may hold, and may waive compliance with any of the terms or
provisions contained in the Lease, all without in any way affecting Guarantor's
obligation under this Guarantee (except to the extent of any settlement or
compromise) and without notice to Guarantor. Guarantor hereby waives any rights
of subrogation it may have with respect to Tenant or this Guarantee.
7. In no case shall Guarantor be liable for any amounts due under this
Lease, which have been paid to Landlord or have been settled or compromised by
Landlord.
8. In all cases, any and all correspondence with Meissner & Wurst U.S.
Inc. will also be sent to Jenoptik Infab, Inc., via certified mail.
9. The use of the singular herein shall include the plural. The terms
and provisions of this Guarantee shall be binding upon and inure to the benefit
of the respective successors and assigns of the parties herein named.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
executed as of the 2nd day of March, 1999.
GUARANTOR:
MEISSNER & WURST U.S. INC.
By: /s/ Timothy H. Ramsey
Name (Typed): Timothy H. Ramsey
------------------
Title: President
------------------
Address: 901 S. Mopac, Bldg. 4, Ste. 200
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Austin, Texas 78746
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