exv10w1






Exhibit 10.1




LEASE

(Office)




     THIS LEASE (this “Lease”), dated as of May 30, 2008, is by and between Centerra Office Tech I,
LLC, a Colorado limited liability company (“Landlord”), and Constant Contact, Inc., a Delaware
corporation (“Tenant”).



W I T N E S S E T H:




     1. PRINCIPAL TERMS. Capitalized terms, first appearing in quotations in this
Section, elsewhere in the Lease or any Exhibits, are definitions of such terms as used in the Lease
and Exhibits and shall have the defined meaning whenever used.



	 	 	 	 	 
	1.1

	 	“BUILDING”:
	 	An existing building known as Hahns Peak One and located at
4850 Hahn’s Peak Drive, Loveland, Colorado 80538.
	 
	 	 	 	 
	1.2

	 	“PREMISES”:
	 	Approximately 9,249 square feet of Rentable Area as defined in
Section 2 below and depicted on Exhibit A attached hereto
located on the west side of the Building on the second floor,
to be known as Suite 210.
	 
	 	 	 	 
	1.3

	 	“INITIAL TERM”:
	 	The period commencing on the Commencement Date and expiring on
the Expiration Date, unless earlier terminated in accordance
with the terms hereunder.
	 
	 	 	 	 
	 

	 	“Commencement Date”:
	 	The later of: (1) June 1, 2008, or (2) the date upon which the
Premises are delivered to Tenant with the Landlord Work (as
defined below) and Tenant Finish Work (as defined below)
Substantially Complete (as defined below).
	 
	 	 	 	 
	 

	 	“Expiration Date”:
	 	The date that is thirty (30) days after the Permanent Space
Lease Rent Commencement Date (as defined in Section 1.16
below); unless earlier terminated in accordance with the terms
hereunder (including without limitation, pursuant to Section
29.23 below).
	 
	 	 	 	 
	1.4

	 	“BASE RENT”:	 	 






	 	 	 	 	 	 	 	 	 
	 	 	Annual	 	Monthly
	Period	 	Base Rent	 	Base Rent
	Commencement Date — Expiration Date
	 	$15.00 per Rentable Square Foot	 	$	11,561.25	 






	 	 	 	 	 
	1.5

	 	“OPERATING EXPENSES”:
	 	As defined in Section 6.1, Tenant’s Pro Rata Share: 17.45%
	 
	 	 	 	 
	1.6

	 	“DEPOSIT”:
	 	$18,498.00.
	 
	 	 	 	 
	1.7

	 	“PERMITTED USE”:
	 	General office use, which may include the operation of a call
center. In no event may medical use or retail sales
transactions by Tenant of tangible personal property be
initiated, consummated, conducted, transacted or otherwise
occur from or within any portion of the Premises.






 









 






	 	 	 	 	 
	1.8

	 	Intentionally Omitted.	 	 
	 
	 	 	 	 
	1.9

	 	LANDLORD’S NOTICE ADDRESS:
	 	Centerra Office Tech I, LLC
	 

	 	 	 	Attention: Vice President of Property Management
	 

	 	 	 	2725 Rocky Mountain Avenue, Ste. 200
	 

	 	 	 	Loveland, CO 80538
	 
	 	 	 	 
	 

	 	 	 	With copy to:
	 
	 	 	 	 
	 

	 	 	 	McWhinney Real Estate Services, Inc.
	 

	 	 	 	Attention: Property Manager
	 

	 	 	 	2725 Rocky Mountain Avenue, Ste. 200
	 

	 	 	 	Loveland, CO 80538
	 
	 	 	 	 
	1.10

	 	LANDLORD’S TAX I.D.:
	 	20-4718282
	 
	 	 	 	 
	1.11

	 	TENANT’S NOTICE ADDRESS:
	 	Reservoir Place
	 

	 	Pre-Commencement Address:
	 	1601 Trapelo Road, Suite 329
	 

	 	 	 	Waltham, MA 02494
	 
	 	 	 	 
	 

	 	 	 	With copy to:
	 
	 	 	 	 
	 

	 	 	 	Wilmer Cutler Pickering Hale & Dorr LLP

Attn: Paul Jakubowski

60 State Street

Boston, MA 02109
	 
	 	 	 	 
	 

	 	Post-Commencement Address:
	 	Address of the Premises
	 
	 	 	 	 
	 

	 	 	 	With copy to:
	 
	 	 	 	 
	 

	 	 	 	Wilmer Cutler Pickering Hale & Dorr LLP
	 

	 	 	 	Attn: Paul Jakubowski
	 

	 	 	 	60 State Street
	 

	 	 	 	Boston, MA 02109
	 
	 	 	 	 
	1.12

	 	TENANT’S TAX I.D.:
	 	04-3285398
	 
	 	 	 	 
	1.13

	 	LANDLORD’S BROKER:
	 	McWhinney Real Estate Services, Inc.
	 

	 	 	 	2725 Rocky Mountain Avenue, Ste. 200
	 

	 	 	 	Loveland, CO 80538
	 
	 	 	 	 
	1.14

	 	COOPERATING BROKER:
	 	McCall & Almy, Inc.
	 

	 	 	 	One Post Office Square
	 

	 	 	 	Boston, MA 02109
	 
	 	 	 	 
	1.15

	 	“Permanent Space Lease”
	 	That certain Lease dated of even date herewith, by and between
McWhinney Real Estate Services, Inc., a Colorado corporation,
as Landlord, and Tenant, as tenant, for certain space at the
building known as Precision Drive Three, located in Loveland,
Colorado.






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	1.16

	 	“Permanent Space Lease Rent Commencement
Date”
	 	The “Rent Commencement Date” under the Permanent Space Lease.
	 
	 	 	 	 
	1.17

	 	ATTACHMENTS:
	 	Exhibit A — The Premises
	 

	 	 	 	Exhibit B — Real Property
	 

	 	 	 	Exhibit C — Commencement Certificate
	 

	 	 	 	Exhibit D — Rules and Regulations
	 

	 	 	 	Exhibit E — Landlord Work and Tenant Finish Work
	 

	 	 	 	Exhibit F — Subordination, Non-Disturbance and Attornment
Agreement
	 

	 	 	 	Exhibit G — Work Letter
	 

	 	 	 	Exhibit H — Parking Area
	 

	 	 	 	Exhibit I — Title Restrictions






     2. GENERAL COVENANTS. Tenant covenants and agrees to pay Rent and perform the
obligations hereafter set forth and in consideration therefor Landlord leases to Tenant the
Premises as depicted on the attached Exhibit A for the Term, together with a non-exclusive right,
subject to the provisions hereof, to use: (i) the common lobbies, toilets, corridors, stairways,
elevators and the pipes, ducts, conduits, systems, wires and any other common areas and facilities
serving the Premises, (ii) the plazas, common walkways and driveways and all other common areas on
the real property legally described on Exhibit B (the “Real Property”) necessary for access to the
Building and the Premises, and (iii) and all other common areas and facilities serving the Premises
or which are necessary for Tenant’s use as permitted hereunder (the “Common Areas”). Landlord
represents and warrants that the rentable area of the Premises consisting of the measured area of
the Premises crosshatched on Exhibit A and Tenant’s Pro Rata Share of the Common Areas within the
Building are computed substantially in accordance with the Building Owners and Managers Association
International Standard Method for Measuring Floor Area in Office Buildings (ANSI/BOMA Z65.1-1996,
that standard being referred to sometimes as “BOMA,” and the space in the Premises so measured
being the “Rentable Area” or “Rentable Square Feet”). The Building, Real Property, Common Areas,
and appurtenances are hereinafter collectively sometimes called the “Building Complex.” Tenant
acknowledges that the Real Property is subject to various recorded agreements, restrictions,
easements and other recorded instruments, including, but not limited to, (i) the Second Restated
and Amended Master Declaration of Covenants, Conditions and Restrictions for Centerra as recorded
in the Larimer County, Colorado records (as supplemented and amended, the “Declaration”); (ii) the
Gateway General Development Plan (as supplemented and amended, the “Development Plan”); (iii) the
MHC LLLP Restrictions (as defined in Section 34 below); (iv) the PIF Covenant (as defined in
Section 35 below); and (v) the RSF Covenant (as defined in Section 35 below). In accordance with
the terms hereof, Tenant agrees to be bound by and to abide by all such restrictions and
requirements, including the Declaration, the Development Plan, the MHC LLLP Restrictions, the PIF
Covenant and the RSF Covenant, and all other obligations and restrictions described in Section 35
below. In addition, Tenant further acknowledges that the Real Property is subject to Centerra
Metropolitan District Nos. 2 and 4 providing for the installation of certain infrastructure
improvements to benefit the Premises and other improvements in the project generally known as
“Centerra,” including, but not limited to, roadways, sanitary sewer lines, water lines and storm
drainage facilities and extensions thereof. All such recorded agreements, restrictions, easements
and other recorded instruments, including, the Declaration, the Development Plan, the MHC LLLP
Restrictions, the PIF Covenant and the RSF Covenant, shall be herein referred to as the “Title
Restrictions.” Landlord represents and warrants that this Lease shall not be subject to any Title
Restrictions other than (i) the Title Restrictions described on Exhibit I attached hereto, and (ii)
any Title Restrictions hereinafter recorded that do not interfere with Tenant’s use of the Premises
for the Permitted Uses or impose additional costs upon Tenant (regardless of whether such costs are
imposed directly under such Title Restriction or pursuant to this Lease).



3









 





     3. TERM. The Initial Term of the Lease commences at 12:01 a.m. on the Commencement
Date and terminates at 12:00 midnight on the Expiration Date, unless earlier terminated as set
forth herein (the Initial Term together with any extensions thereof is herein referred to as the
“Term”).



     4. RENT. Commencing on the Commencement Date and on the first day of each calendar
month of the Term thereafter, Tenant shall pay Base Rent in the monthly amount stated in Section
1.4, in advance without notice (all amounts, including Base Rent, to be paid by Tenant pursuant to
this Lease as the context requires are sometimes referred to collectively as “Rent[s]”). Rents
shall be paid without set off, abatement, or diminution (except as expressly set forth herein), to
Landlord at 2725 Rocky Mountain Avenue, Suite 200, Loveland, Colorado 80538, or at such other place
as Landlord from time to time designates in writing in accordance with Section 30 below.



     5. COMPLETION OF THE PREMISES.



          5.1 Landlord shall deliver possession of the Premises to Tenant, vacant and broom clean at the
time of substantial completion of Landlord Work and Tenant Finish Work (as defined in Section 5.4
below) (“Delivery Date”). In addition, Landlord shall grant Tenant access to the Premises prior to
the Delivery Date for the purpose of installing its equipment and furniture at the Premises and
otherwise perform such work to prepare the Premises for Tenant’s occupancy at such time as Landlord
shall, in its good faith judgment, determine that such activities by Tenant will not unreasonably
interfere with completion of Landlord Work and/or Tenant Finish Work performed by Landlord. Any
such access shall be subject to such rules and regulations as Landlord shall reasonably promulgate
for the purpose of protecting the Premises, avoiding conflicts among contractors and promoting
safety at the Premises. Commencing on the Delivery Date (or earlier date on which Landlord shall
grant access or possession to Tenant), Tenant agrees that all terms and provisions of this Lease
shall be in effect, excluding, however, Tenant’s obligation to pay Rent which shall commence on the
Commencement Date as provided in Section 1.3 above. Except for completion of the Landlord Work and
Tenant Finish Work, Landlord shall have no obligation for completion or remodeling of the Premises,
and Tenant shall accept the Premises in their “as is” condition on the Commencement Date. Promptly
after the Commencement Date, Landlord and Tenant agree to execute a Commencement Certificate in the
form attached hereto as Exhibit C setting forth the exact Commencement Date.




          5.2 Except for any latent defects or Punch List Items, taking possession of the Premises by
Tenant on the Delivery Date shall be conclusive evidence that the Premises are in the condition
agreed between Landlord and Tenant and shall constitute an acknowledgment by Tenant of satisfactory
completion of any work which Landlord has agreed to perform.




          5.3 Notwithstanding any provision to the contrary herein, Landlord represents and warrants to
Tenant that (a) provided that Tenant only uses the Premises for the Permitted Use, the Building and
the Premises are in material compliance with all applicable zoning and land use laws; (b) to the
best of Landlord’s knowledge, the Building and the Premises are in material compliance with all
environmental laws and agreements; (c) the Building and the Premises are in material compliance
with the requirements of all Title Restrictions insofar as they relate to the Real Property
described on Exhibit B and there are no violations of the Title Restrictions which will materially
interfere with Tenant’s use or occupancy of the Premises; (d) use of the Premises for the Permitted
Use is permitted as a matter of right at the Real Property under all applicable laws, rules, and
regulations, and all Title Restrictions; (e) Tenant shall not be required to pay any design review
fee to the Centerra Design Review Committee in connection with its use of the Premises for the
Permitted Use; (f) Landlord holds fee simple title to the Real Property, subject to no mortgage
other than a mortgage for the benefit of Wells Fargo Bank, N.A.; (g) Landlord has full power and
authority to enter into this Lease and has obtained all consents and taken all actions necessary in
connection therewith; and (h) no other party has any possessory right to the Premises or has
claimed the same.




          5.4 Landlord shall, at Landlord’s sole cost and expense, perform certain improvements at the
Premises described as “Landlord Work” on Exhibit E attached hereto. In addition, Landlord shall
perform certain improvements at the Premises on behalf of Tenant described as “Tenant Finish Work”
on Exhibit E attached hereto at Tenant’s sole cost and expense as set forth on Exhibit E with
respect to Tenant Finish Work. The Landlord Work and Tenant Finish Work shall be completed in
accordance with the terms of the Work Letter attached hereto as Exhibit G. The Landlord Work and
Tenant Finish Work
shall be deemed to be “Substantially Complete” on the later of (i) the date upon which all Landlord
Work and Tenant Finish Work have been performed, other than any minor details of construction,
mechanical adjustment or any other





4









 







similar matter, the non-completion of which does not materially
interfere with Tenant’s use of the Premises (“Punch List Items”), and (ii) the date upon which
Landlord obtains a temporary or permanent certificate of occupancy for the Premises permitting the
lawful occupancy and use of the Premises by Tenant for the Permitted Use. In the event that
Landlord obtains a temporary certificate of occupancy for the Premises, Landlord shall diligently
undertake such action as shall be required to secure a permanent certificate of occupancy for the
Premises. If Landlord shall thereafter fail to obtain such permanent certificate of occupancy and
such failure to obtain a permanent certificate of occupancy shall materially interfere with
Tenant’s use or occupancy of the Premises, then, subject to the provisions of Section 21 below and
except to the extent that such delay is caused by Tenant, Landlord shall be deemed in default
hereunder. Within fifteen (15) days after the Landlord Work and Tenant Finish Work are
Substantially Complete, Landlord and Tenant shall together conduct an inspection of the Premises
and prepare a list of the Punch List Items setting forth any portions of the Landlord Work and/or
Tenant Finish Work that is not in conformity with such work as described on Exhibit E attached to
this Lease. Landlord shall correct all such Punch List Items as promptly as reasonably possible
and with a minimum of interference with Tenant’s occupancy and use of the Premises. Landlord shall
be solely responsible for payment of all Landlord Work and Tenant shall be solely responsible for
payment of all Tenant Finish Work. Prior to the commencement of any Tenant Finish Work, Tenant
shall deposit with Landlord an amount equal to fifty percent (50%) of the cost of the Tenant Finish
Work as set forth on Exhibit E, which deposit (“Tenant Finish Deposit”) may be used by Landlord in
connection with the installation of the Tenant Finish Work. Upon completion of the Tenant Finish
Work, Tenant shall reimburse to Landlord the remaining balance owing for the Tenant Finish Work as
set forth on Exhibit E.




          5.5 Landlord agrees to use commercially reasonable efforts to Substantially Complete the
Landlord Work and Tenant Finish Work on or before June 1, 2008. In the event that the Commencement
Date is later than July 1, 2008 (“Outside Delivery Date”), then Tenant’s obligation to pay Rent
starting on the Commencement Date shall be delayed by one (1) day for each day, commencing on the
Outside Delivery Date and continuing until the Commencement Date. In the event that the
Commencement Date is later than September 1, 2008 (the “Outside Termination Date”), then Tenant
shall have the right to terminate this Lease by written notice to Landlord at any time after the
Outside Termination Date, but prior to the Commencement Date. In the event Tenant shall elect to
terminate this Lease after the Outside Termination Date as provided in the preceding sentence,
Landlord shall refund to Tenant the Deposit and the Tenant Finish Deposit less any amounts paid by
Landlord for the purchase of the Liebert Unit on behalf of Tenant and Landlord shall thereafter
transfer ownership of the Liebert Unit to Tenant by bill of sale. Notwithstanding the foregoing,
in the event that the date for the Landlord Work and Tenant Finish Work to be Substantially
Complete, the Outside Delivery Date and the Outside Termination Date are delayed as a result of
Tenant Delays defined in the Work Letter attached hereto, then such dates shall be extended by the
number of days caused by Tenant Delay.




     6. OPERATING EXPENSES.



          6.1 Definitions. The additional terms below have the following meanings in this
Lease:




               (1) “Landlord’s Accountants” means that individual or firm employed by
Landlord from time to
time to keep the books and records for the Building Complex, and/or to prepare the federal and
state income tax returns for Landlord with respect to the Building Complex, which books and records
shall be certified to by a representative of Landlord. All determinations made hereunder shall be
reasonably made by Landlord’s Accountants unless otherwise stated.



               (2) “Building Rentable Area” means approximately 53,000 rentable square feet of
space in the
Building computed substantially in accordance with BOMA. If there is a significant change in the
aggregate Building Rentable Area as a result of an addition, partial destruction, modification to
building design, or similar cause which



5









 




causes a reduction or increase in the Building Rentable Area on a permanent basis or, if Landlord
remeasures the Building and a change in the Building Rentable Area occurs, Landlord’s Accountants
shall make such adjustments in the computations as are necessary to provide for such change.




               (3) “Tenant’s Pro Rata Share” or “Pro Rata Share”
initially means the percentage set forth in
Section 1.5, which percentage has been computed by dividing the total Rentable Square Feet
allocated to the Premises by the Building Rentable Area. If Tenant, at any time during the Term,
leases additional space in the Building or if the Building Rentable Area is adjusted, Tenant’s Pro
Rata Share shall be recomputed by dividing the total Rentable Square Feet allocated to the Premises
(including any additional space leased by Tenant) by the Building Rentable Area and the resulting
figure shall become Tenant’s Pro Rata Share.



               (4) “Operating Expense Year” means each calendar year during the Term, except
that the first
Operating Expense Year begins on the Commencement Date and ends on December 31 of such calendar
year and the last Operating Expense Year begins on January 1 of the calendar year in which this
Lease expires or is terminated and ends on the date of such expiration or termination. If an
Operating Expense Year is less than twelve (12) months, Operating Expenses for such year shall be
prorated on a per diem basis.



               (5) “Operating Expenses” means all operating expenses of any kind or nature,
paid or incurred
by Landlord, which are in Landlord’s reasonable judgment necessary, appropriate, or customarily
incurred in connection with the operation, service and maintenance of the Building Complex,
including costs incurred in fulfillment of Landlord’s services, operation and maintenance
obligations under the terms of this Lease. “Operating Expenses” include:




          (a) All real property taxes and assessments, including assessments made pursuant to
Centerra Metropolitan District Nos. 2 and 4, levied against the Building Complex by any
governmental or quasi-governmental authority, including taxes, assessments, surcharges, or
service or other fees of a nature not presently in effect which are hereafter levied on the
Building Complex as a result of the use, ownership or operation of the Building Complex or
for any other reason, whether in lieu of or in addition to, any current real estate taxes
and assessments. However, any taxes which are levied on the rent of the Building Complex
will be determined as if the Building Complex were Landlord’s only real property. In no
event do taxes and assessments include any federal or state income taxes levied or assessed
on Landlord. Expenses for tax consultants to contest taxes or assessments are also included
as “Operating Expenses” (and all of the foregoing are collectively referred to herein as
“Taxes”). Taxes also include special assessments, license taxes, business license fees,
business license taxes, commercial rental taxes, levies, charges, penalties or taxes,
imposed by any authority against the Premises, Building Complex or any legal or equitable
interest of Landlord. Special assessments are deemed payable in such number of installments
permitted by law, whether or not actually so paid, and include any applicable interest on
such installments. Taxes (other than special assessments) are computed on an accrual basis
based on the year in which they are levied, even though not paid until the following
Operating Expense Year. Notwithstanding the foregoing or any provision to the contrary
herein, the following shall be excluded from Taxes and shall be paid solely by Landlord:
inheritance, estate, succession, transfer, gift, franchise, or capital stock tax, or any
income taxes arising out of or related to ownership and operation of income producing real
estate, or any excise taxes imposed upon Landlord based upon gross or net rentals or other
income received by it;




          (b) Costs of supplies, including costs of relamping and replacing ballasts in all
Building standard tenant lighting;




          (c) Costs of energy for the Building Complex (but not for individual tenant spaces),
including costs of propane, butane, natural gas, steam, electricity, solar energy and fuel
oils, coal or any other energy sources;




          (d) Costs of water and sanitary and storm drainage services;




          (e) Costs of security services;



6









 






          (f) Costs of general maintenance and non-capital repairs, including costs under HVAC
and other mechanical maintenance contracts; and non-capital repairs of equipment used in
maintenance and repair work;




          (g) Costs of maintenance and non-capital repair of landscaping;




          (h) Insurance premiums for the Building Complex, including all-risk or multi-peril
coverage, together with loss of rent endorsement; the part of any claim paid under the
deductible portion of any insurance policy carried by Landlord; public liability insurance;
and any other insurance carried by Landlord on any component parts of the Building Complex;




          (i) Except as otherwise provided herein, all labor costs, including wages, costs of
worker’s compensation insurance, payroll taxes, fringe benefits, including pension,
profit-sharing and health benefits, and legal fees and other costs incurred in resolving any
labor dispute;




          (j) Professional building management fees, costs and expenses, including costs of
office space and storage space required by management for performance of its services (and
said building management may, at Landlord’s option, be performed either by a third-party or
Landlord-affiliated property management company);




          (k) Legal, accounting, inspection, and other consulting fees (including fees for
consultants for services designed to produce a reduction in Operating Expenses or improve
the operation, maintenance or state of repair of the Building Complex);




          (l) Costs of capital improvements and structural repairs and replacements to the
Building Complex to conform to changes subsequent to the Commencement Date for the Building
pursuant to any Applicable Legal Requirements as defined in Section 8 below (herein
“Required Capital Improvements”). Expenditures for Required Capital Improvements will be
amortized at a market rate of interest over the useful life of such capital improvement (as
determined in accordance with generally accepted accounting principles). Landlord hereby
represents that to the best of its knowledge, the Building Complex conforms to all
Applicable Legal Requirements as of the date hereof;




          (m) Costs incurred for Landlord’s Accountants including costs of any experts and
consultants engaged to assist in making the computations;




          (n) All dues, assessments, impositions and charges payable to associations; and




          (o) Costs of janitorial services to Common Areas and the Premises two (2) nights per
week.




“Operating Expenses” do not include:




               (i) Costs of work which Landlord performs for any tenant, including permit, license
and
inspection costs, incurred with respect to the installation of tenants’ or other occupants’
improvements or incurred in renovating or otherwise improving, decorating, painting or
redecorating vacant space for tenants or other occupants of the Building Complex;




               (ii) Costs incurred by Landlord to the extent that Landlord is reimbursed by
insurance
proceeds or is otherwise reimbursed;




               (iii) Leasing commissions, advertising and promotional expenses, and other costs
incurred in leasing space in the Building, and costs of acquisition and maintenance of signs
in or on the Building



7









 






identifying the owner of the Building or tenants, provided that the foregoing shall not
exclude the costs of acquiring and maintaining common signage for the benefit of all tenants
within the Building as a permitted Operating Expense;




               (iv) Costs of repairs or rebuilding necessitated by condemnation;




               (v) Any bad debt expenses and interest, principal, points and fees on debts or
amortization on any mortgage or other debt instrument encumbering the Building or the Real
Property;




               (vi) Depreciation, amortization and interest payments, except on equipment, materials,
tools, supplies and vendor type equipment purchased by Landlord to enable Landlord to supply
services Landlord might otherwise contract for with a third party where such depreciation,
amortization and interest payments would otherwise have been included in the charge for such
third party’s services, all as determined in accordance with generally accepted accounting
principles, consistently applied, and when depreciation or amortization is permitted or
required, the item shall be amortized over its reasonably anticipated useful life;




               (vii) To the extent paid directly by the Tenant, as hereinafter provided, electrical
costs for the Premises and janitorial services for the Premises;




               (viii) Costs that represent income or use taxes of Landlord other than use taxes
charged to Landlord for equipment, materials or supplies used by Landlord in connection with
maintenance and, subject to Section 6.1(5)(l) above, non-capital repair as set forth above;
and salaries and other benefits paid to the employees of Landlord to the extent customarily
included in or covered by a management fee, provided that in no event shall Operating
Expenses include salaries and/or benefits attributable to personnel above the level of
Building manager;




               (ix) Any ground or underlying lease rental;




               (x) Except as otherwise provided in Section 6.1(5)(l) above, costs which may be
considered capital improvements, capital repairs, capital changes or any other capital costs
as determined under generally accepted accounting principles;




               (xi) Rentals for items which if purchased, rather than rented, would constitute a
capital cost;




               (xii) Marketing costs, including leasing commissions, attorneys’ fees (in connection
with the negotiation and preparation of letters, deal memos, letters of intent, leases,
subleases and/or assignments), space planning costs, and other costs and expenses incurred
in connection with lease, sublease and/or assignment negotiations and transactions with
present or prospective tenants or other occupants of the Building;




               (xiii) Expenses in connection with services or other benefits which are not offered to
Tenant or for which Tenant is charged for directly;




               (xiv) Costs incurred by Landlord due to the violation by Landlord or any tenant of the
terms and conditions of any lease of space in the Building Complex;




               (xv) Costs incurred due to the acts or failure to act of other tenants leasing space in
the Building Complex;



8









 






               (xvi) Management fees paid or charged by Landlord in connection with the management of
the Building to the extent such management fee exceeds five percent (5%) of the gross rents
and other charges and sums due to Landlord from tenants occupying space in the Building;




               (xvii) Rent for any office space occupied by Building management personnel to the
extent the size or rental rate for of such office space exceeds the size or fair market
rental value of office space occupied by management personnel of comparable buildings in the
vicinity of the Building;




               (xviii) Amounts paid to Landlord or to subsidiaries or affiliates of Landlord for goods
and/or services in the Building to the extent the same exceeds reasonable compensation for
such goods and/or services;




               (xix) Landlord’s general corporate overhead and general and administrative
expenses;




               (xx) Any compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord;




               (xxi) Services provided, taxes, attributable to, and costs incurred in connection with
the operation of any retail, restaurant and garage operations for the Building, and any
replacement garages or parking facilities and any shuttle services;




               (xxii) Costs incurred in connection with upgrading the Building to comply with laws,
rules, regulations and codes in effect prior to the Commencement Date;




               (xxiii) Any financial obligation arising from or owing pursuant to Ordinance No. 4519,
An Ordinance Concerning the City of Loveland, Colorado Special Improvement District No. 1
recorded April 3, 2000, at Reception No. 2000021235 and recorded July 18, 2000 at Reception
No. 2000047950 of the Larimer County, Colorado records.




               (xxiv) All assessments from any governmental or quasi-governmental entities which are
not specifically charged to Tenant because of what Tenant has done, which can be paid by
Landlord in installments, shall be paid by Landlord in the maximum number of installments
permitted by law and not included as Operating Expenses except in the year in which the
assessment or premium installment is actually paid;




               (xxv) Costs arising from the gross negligence or willful misconduct of Landlord or
other tenants or occupants of the Building or their respective agents, employees, licensees,
vendors, contractors or providers of materials or services;




               (xxvi) Costs arising from Landlord’s charitable or political contributions;




               (xxvii) Costs arising from latent defects or repair thereof;




               (xxviii) Costs for sculpture, paintings or other objects of art; and




               (xxix) Costs associated with the operation of the business of the entity which
constitutes Landlord as the same are distinguished from the costs of operation of the
Building, including accounting and legal matters, costs of defending any lawsuits with any
mortgagee (except as the actions of Tenant may be in issue), costs of selling, syndicating,
financing, mortgaging or hypothecating any of Landlord’s interest in the Building, costs
incurred in connection with any disputes between Landlord and its employees, between
Landlord
and Building management, or between Landlord and other tenants or occupants.



9









 





          (6) If any lease entered into by Landlord with any tenant in the Building provides for a
separate basis of computation for any Operating Expenses with respect to its leased premises,
Landlord’s Accountants shall modify the computation of Building Rentable Area and Operating
Expenses for a particular Operating Expense Year to eliminate or modify any expenses which are paid
for in whole or in part by such tenant. If the Building Rentable Area is not fully occupied during
any particular Operating Expense Year, Landlord’s Accountants may adjust those Operating Expenses
which are affected by occupancy for the particular Operating Expense Year to reflect ninety-five
percent (95%) occupancy.



          6.2 Estimated Payments. During each Operating Expense Year beginning with the first
month of the first Operating Expense Year and continuing each month thereafter throughout the Term,
Tenant shall pay Landlord, at the same time as Base Rent is paid, an amount equal to Tenant’s Pro
Rata Share of one-twelfth (1/12) of Landlord’s estimate of any Operating Expenses for the
particular Operating Expense Year (“Estimated Payment”).




          6.3 Annual Adjustments.




               (1) Within ninety (90) days after the end of each Operating Expense Year, Landlord shall
submit to Tenant a statement setting forth the exact amount of Tenant’s Pro Rata Share of the
Operating Expenses for the Operating Expense Year just completed (the “Operating Statement”). As
soon as reasonably possible after the beginning of the second Operating Expense Year (but in no
event in excess of ninety (90) days thereafter), Landlord’s Operating Statement shall set forth the
difference, if any, between Tenant’s actual Pro Rata Share of Operating Expenses allocable to the
Operating Expense Year just completed and the Estimated Payments by Tenant allocable to such
Operating Expense Year. Each Operating Statement shall also set forth the projected increase or
decrease, if any, in Operating Expenses for
the new Operating Expense Year and the resulting increase or decrease in Tenant’s monthly Rent for
such new Operating Expense Year above or below the Rent paid by Tenant for the immediately
preceding Operating Expense Year.



               (2) To the extent that Tenant’s Pro Rata Share of Operating Expenses for the period covered by
an Operating Statement is different from the Estimated Payments by Tenant allocable to the
Operating Expense Year just completed, Tenant shall pay Landlord any deficiency within thirty (30)
days following receipt by Tenant of the Operating Statement, or receive a credit from Landlord
against the next due Rent in an amount equal to any overpayment by Tenant (provided, however, that
to the extent that the amount of such overpayment exceeds Rent payable for the remainder of the
Term of this Lease, Landlord shall provide Tenant with a cash reimbursement within thirty (30) days
after delivery of the Operating Statement), as the case may be. Until Tenant receives an Operating
Statement, Tenant’s Estimated Payment for the new Operating Expense Year shall continue to be paid
at the prior Estimated Payment amount, but Tenant shall commence payment of Rent based on the new
Estimated Payment amount beginning on the first day of the calendar month following the calendar
month in which Tenant receives the new Operating Statement. Tenant shall also pay Landlord or
deduct from the Rent next due and payable, as the case may be, on the date required for the first
payment, as adjusted, the difference, if any, between the Estimated Payment for the new Operating
Expense Year set forth in the Operating Statement and the Estimated Payment actually paid during
the new Operating Expense Year (provided, however, that to the extent that the amount of such
difference exceeds Rent payable for the remainder of the Term of this Lease, Landlord shall provide
Tenant with a cash reimbursement within thirty (30) days after delivery of the Operating
Statement). If, during any Operating Expense Year, there is a change in the information on which
Tenant is then making its Estimated Payments so that the prior estimate is no longer accurate,
Landlord may revise the estimate and there shall be such corresponding adjustments made in the
monthly Rent on the first day of the calendar month following notice to Tenant as shall be
necessary by either increasing or decreasing, as the case may be, the amount of monthly Rent then
being paid by Tenant for the balance of the Operating Expense Year.



          6.4 Miscellaneous. In no event will any decrease in Rent pursuant to any provision
hereof result in a reduction of Rent below the Base Rent. Delay by Landlord in submitting any
Operating Statement for any Operating Expense Year does not affect the provisions of this Section
except to the extent provided above, or constitute a waiver of Landlord’s rights
for such Operating Expense Year or any subsequent Operating Expense Years.




          6.5 Dispute. If Tenant disputes an adjustment submitted by Landlord or a proposed
increase or decrease in the




10









 




Estimated Payment, Tenant shall give Landlord notice of such dispute
within one hundred eighty (180) days after Tenant’s receipt of the adjustment. If Tenant does not
give Landlord timely notice, Tenant waives its right to dispute the particular adjustment. If
Tenant timely objects, Tenant may engage its own certified public accountants (“Tenant’s
Accountants”) to verify the accuracy of the statement complained of or the reasonableness of the
estimated increase or decrease. If Tenant’s Accountants determine that an error has been made,
Landlord’s Accountants and Tenant’s Accountants shall endeavor to agree upon the matter, failing
which such matter shall be submitted to an independent certified public accountant selected by
Landlord, with Tenant’s reasonable approval, for a determination which will be conclusive and
binding upon Landlord and Tenant. All costs incurred by Tenant for Tenant’s Accountants shall be
paid for by Tenant unless Tenant’s Accountants disclose an error, acknowledged by Landlord’s
Accountants (or found to have occurred through the above independent determination), of more than
five percent (5%) in the computation of the total amount of Operating Expenses, in which event
Landlord shall pay the reasonable costs incurred by Tenant to obtain such audit. Notwithstanding
the pendency of any dispute, Tenant shall continue to pay Landlord the amount of the Estimated
Payment or adjustment determined by Landlord’s Accountants until the adjustment has been determined
to be incorrect. If it is determined that any portion of the Operating Expenses were not properly
chargeable to Tenant, then Landlord shall credit such amount against Rent next due and payable
(provided, however, that to the extent that such amount exceeds Rent payable for the remainder of
the Term of this Lease, Landlord shall provide Tenant with a cash reimbursement within thirty (30)
days after such determination).




     7. SERVICES.



          7.1 Subject to the provisions below, Landlord agrees, in accordance with standards reasonably
determined by Landlord from time to time for the Building: (1) to furnish running water at those
points of supply for general use of tenants of the Building; (2) during Ordinary Business Hours, to
furnish to interior Common Areas heated or cooled air (as applicable), electrical current,
janitorial services, and maintenance; (3) to furnish heated or cooled air (as applicable),
electrical current, janitorial services, and maintenance (to the extent required under Section 11
below) to the Premises for standard office use; (4) to provide, during Ordinary Business Hours, the
general use of passenger elevators for ingress and egress to and from the Premises, if applicable
(at least one [1] such elevator shall be available at all times except in the case of emergencies
or repair); (items [1] through [4] are collectively called “Services”). “Ordinary Business Hours”
means 7:00 AM to 7:00 PM Monday through Friday and from 8:00 AM to 12:00 Noon Saturdays, excepting
all legal holidays generally recognized in the State of Colorado.




          7.2 In the event Landlord shall determine that Tenant is utilizing electricity and/or natural
gas in excess of Tenant’s Pro Rata Share, Landlord may cause electricity and natural gas provided
to the Premises to be separately metered, at Landlord’s expense, and Tenant shall thereafter pay
all utility deposits, fees and monthly service charges for electricity and natural gas services
separately metered to the Premises. Tenant shall also pay the cost of replacing light bulbs and/or
tubes and ballasts used in all lighting in the Premises other than that provided by Landlord to all
tenants of the Building.




          7.3 Landlord may temporarily discontinue, reduce, or curtail Services to the extent necessary
due to accident, casualty repairs, alterations, strikes, lockouts, Applicable Legal Requirements,
or any other happening beyond Landlord’s reasonable control. Except as provided in Section 7.4
below, Landlord is not liable for damages to Tenant or any other party as a result of any
interruption, reduction, or discontinuance of Services (either temporary or permanent) nor shall
the temporary occurrence of any such event be construed as an eviction of Tenant, or cause or
permit an abatement, reduction or setoff of Rent (except as specifically provided in this Lease),
or operate to release Tenant from Tenant’s obligations.




          7.4 An “Abatement Event” shall be defined as an event or circumstance (other than those
addressed in Sections 18 and 19 below) that is within the reasonable control of Landlord and which
prevents Tenant from using the Premises or any portion thereof, as a result of any failure to
provide Services or access to the Premises. An “Abatement Event” shall not include any item which
is beyond the reasonable control of Landlord. Tenant shall give Landlord notice (“Abatement
Notice”) of any such Abatement Event, and if such Abatement Event continues beyond the “Eligibility
Period” (as that term
is defined below), then the Base Rent and Tenant’s other monetary obligations to Landlord shall be
abated entirely or reduced, as the case may be, after expiration of the Eligibility Period for such
time that Tenant continues to be so prevented from using, and does not use, the Premises or a
portion thereof, in the proportion that the rentable area of the portion of the Premises that
Tenant is prevented from using, and does not use, bears to the total rentable area of the Premises; provided,





11









 







however, in the event that Tenant is prevented from using, and does not use, a portion of
the Premises for a period of time in excess of the Eligibility Period and the remaining portion of
the Premises is not sufficient to allow Tenant to effectively conduct its business therein, and if
Tenant does not conduct its business from such remaining portion, then for such time after
expiration of the Eligibility Period during which Tenant is so prevented from effectively
conducting its business therein, Rent to Landlord shall be abated entirely for such time as Tenant
continues to be so prevented from using, and does not use, the Premises. The term “Eligibility
Period” shall mean a period of three (3) consecutive days after Landlord’s receipt of any Abatement
Notice(s). In addition, if an Abatement Event continues for sixty (60) consecutive days after any
Abatement Notice, Tenant may terminate this Lease by written notice to Landlord at any time prior
to the date such Abatement Event is cured by Landlord.




          7.5 Tenant shall promptly notify Landlord of any accidents or defects in the Building of which
Tenant actually becomes aware, including defects in pipes, electric wiring, and HVAC equipment, and
of any condition which may cause injury or damage to the Building or any person or property
therein.




     8. QUIET ENJOYMENT. So long as this Lease is in full force and effect, Tenant is
entitled to the quiet enjoyment and peaceful possession of the Premises subject to the provisions
of this Lease; the statutes, rules, regulations, zoning laws, other laws, codes, ordinances,
decrees and orders of applicable federal, state and local governmental authorities; Title
Restrictions and any other recorded instruments now or hereafter in effect (together, “Applicable
Legal Requirements”).



     9. DEPOSIT.  Tenant has deposited and will keep on deposit at all
times during the Term with Landlord the Deposit as security for the payment and performance of
Tenant’s obligations under this Lease. If, at any time, Tenant is in default (beyond applicable
notice and cure periods), Landlord has the right to use the Deposit, or so much thereof as
necessary, in payment of Rent, in reimbursement of any expense incurred by Landlord, and in payment
of any damages incurred by Landlord by reason of such Event of Default. In such event, Tenant
shall on demand of Landlord forthwith remit to Landlord a sufficient amount in cash to restore the
Deposit to the original amount. If the entire Deposit has not been utilized, the remaining amount
will be refunded to Tenant or to whoever is then the holder of Tenant’s interest in this Lease,
without interest, within thirty (30) days after full performance of this Lease by Tenant. Landlord
may commingle the Deposit with other funds of Landlord. Landlord shall deliver the Deposit to any
purchaser of Landlord’s interest in the Premises, and Landlord shall be discharged from further
liability therefor. Tenant agrees that if a Mortgagee succeeds to Landlord’s interest in the
Premises by reason of foreclosure or deed in lieu of foreclosure, Tenant has no claim against the
Mortgagee for the Deposit or any portion thereof unless such Mortgagee has actually received the
same from Landlord (Landlord hereby agreeing to deliver such amounts to any such Mortgagee). If
claims of Landlord exceed the Deposit, Tenant shall remain liable for the balance.



     10. CHARACTER OF OCCUPANCY.



          10.1 Tenant shall be entitled to occupy the Premises for the Permitted Use and for no other
purpose, and pay on demand for any damage to the Premises caused by misuse or abuse by Tenant,
Tenant’s agents or employees, or any other person entering upon the Premises under express or
implied invitation of Tenant (collectively, “Tenant’s Agents”). Tenant, at Tenant’s expense, shall
comply with all Applicable Legal Requirements which impose any duty upon Landlord or Tenant with
respect to the occupation or alteration of the Premises, provided Tenant shall not be responsible
for structural repairs or alterations except to the extent set forth in Section 6.1(5)(l) above or
required as a result of the negligence or willful misconduct of Tenant, its contractors, agents,
employees and/or invitees. Tenant shall not commit or permit waste or any nuisance on or in the
Premises. Notwithstanding the foregoing or any other provision of this Lease, Tenant shall not,
except pursuant to Section 6.1(5)(l) above or as a result of the negligence or willful misconduct
of Tenant, its contractors, agents, employees and/or invitees, be responsible for compliance with
any Applicable Legal Requirements, or the like requiring (i) structural repairs or modifications or
(ii) repairs or modifications to the utility or building service equipment or (iii)
installation of new building service equipment, such as fire detection or suppression equipment,
unless such repairs, modifications, or installations shall be due to Tenant’s particular manner of
use of the Premises as opposed to office use generally.




     11. MAINTENANCE, ALTERATIONS AND REENTRY.



12









 





          11.1 Throughout the Term, Tenant shall make all repairs and replacements to HVAC, mechanical,
life safety and electrical systems which exclusively serve the Premises (as opposed to the Building
generally). Landlord shall provide upkeep, maintenance, and repairs to all other systems (or
portions thereof) which serve the Premises, the entire Building Complex and/or any Common Areas.
Except as otherwise provided in Section 6.1(5)(l) above, Landlord shall also maintain and repair
the roof, foundation and all structural and exterior elements and facilities of the Premises,
Building, Building Complex and all Common Areas. Except as provided in this Section or otherwise
expressly required in this Lease, Landlord is not required to make improvements or repairs to the
Premises during the Term.




          11.2 Landlord or Landlord’s agents may enter the Premises (i) at any time during Ordinary
Business Hours to respond to emergency conditions and (ii) upon forty-eight (48) hours prior notice
to Tenant during non-Ordinary Business Hours for maintenance, examination and inspection in
connection with Landlord’s obligations hereunder, or to perform, if Landlord elects, any
obligations of Tenant which Tenant fails to perform (during the continuation of any Event of
Default) or such cleaning, maintenance, repairs, replacements, additions, or alterations as
Landlord deems necessary for the safety, improvement, or preservation of the Premises or other
portions of the Building Complex or as required by Applicable Legal Requirements or this Lease.
Without limiting the foregoing, Landlord or Landlord’s agents may also show the Premises to
prospective tenants, purchasers and any holder of a mortgage or deed of trust affecting all or any
portion of the Building Complex (in any case, a “Mortgagee”). Any such entry or reentry by
Landlord shall not constitute an eviction or entitle Tenant to abatement of Rent, provided that
Landlord shall upon any such entry, (i) use reasonable efforts to minimize any disruption to
Tenant’s use or occupancy of the Premises and (ii) use reasonable efforts to coordinate Landlord’s
activities with Tenant’s activities in order to avoid unnecessary interference with Tenant’s use or
occupancy of the Premises. Landlord may make such alterations or changes in other portions of the
Building Complex as Landlord desires so long as such alterations and changes do not unreasonably
interfere with Tenant’s occupancy, access or use of the Premises, or adversely affect Tenant’s
parking or other rights hereunder. Landlord may use the Common Areas and one (1) or more entrances
to the Building Complex as may be necessary in Landlord’s judgment to complete such work.




     12. ALTERATIONS AND REPAIRS BY TENANT.



          12.1 Tenant shall not make any alterations to the Premises during the Term, including (without
limitation) installation of equipment or machinery which requires modifications to existing
electrical outlets or increases Tenant’s usage of electricity beyond building design standards
(collectively “Alterations”) without in each instance first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Landlord’s
consent or approval of the plans, specifications and working drawings for any Alterations shall not
constitute any warranty or representation by Landlord (and shall not impose any liability on
Landlord) as to their completeness, design sufficiency, or compliance with Applicable Legal
Requirements. Tenant shall at its cost: pay all engineering and design costs incurred by Landlord
as to all Alterations, obtain all governmental permits and approvals required, and cause all
Alterations to be completed in compliance with Applicable Legal Requirements and requirements of
Landlord’s insurance. All such work relating to Alterations shall be performed in a good and
workmanlike manner, using new materials and equipment at least equal in quality to the initial
Tenant finish. All Alterations, repair and maintenance work performed by Tenant shall be done at
Tenant’s expense with Landlord’s prior reasonable consent and subject to any reasonable conditions
imposed by Landlord. If Landlord authorizes such persons to perform work, Tenant shall deliver to
Landlord prior to commencement certificates issued by insurance companies qualified to do business
in the State of Colorado, evidencing that worker’s compensation, public liability insurance,
products liability insurance, and property damage insurance (in amounts, with companies and on
forms reasonably satisfactory to Landlord) are in force and maintained by all contractors and
subcontractors engaged to perform such work. All liability policies shall name Landlord, the
manager of the Building, as designated by Landlord from time to time (the “Building Manager”), and
Mortgagee as additional insureds. Each certificate shall provide that the
insurance may not be cancelled or modified without thirty (30) days’ prior written notice to
Landlord and Mortgagee. Landlord also has the right to post notices in the Premises in locations
designated by Landlord stating that Landlord is not responsible for payment for such work and
containing such other information as Landlord deems necessary. All such work shall be performed in
a manner which does not unreasonably interfere with Landlord or other tenants of the Building, or
impose additional expense upon Landlord in the operation of the Building Complex. Notwithstanding
any provision to the contrary contained in this Section 12, Tenant shall have the right to perform
cosmetic alterations and other finish work at the




13









 







Premises, including, without limitation,
decoration work and other work necessary to install customary office furnishings at the Premises,
provided that Tenant gives Landlord not less than three (3) business days’ prior written notice and
Landlord does not object to such activities based upon its good faith belief that such activities
will unreasonably interfere with the use and occupancy of other tenants within the Building.




          12.2 Tenant shall keep the Premises in as good order, condition, and repair, as on the
Commencement Date, loss by fire or other casualty, condemnation and ordinary wear excepted.




          12.3 All Alterations, including partitions, paneling, carpeting, drapes or other window
coverings, and light fixtures (but not including movable office furniture not attached to the
Building), are deemed a part of the real estate and the property of Landlord and shall remain upon
and be surrendered with the Premises at the end of the Term, whether by lapse of time or otherwise,
unless Landlord notifies Tenant no later than fifteen (15) days prior to the end of the Term that
it elects to have Tenant remove all or part of such Alterations, and in such event, Tenant shall at
Tenant’s expense promptly remove the Alterations specified and restore the Premises to their prior
condition, reasonable wear and tear excepted. Notwithstanding the foregoing or any provision to the
contrary contained herein, (i) Tenant shall remove any movable office furniture, equipment and
other personal property at the Premises (including, without limitation the Liebert Unit serving the
server room at the Premises) unless Landlord and Tenant agree in writing that such items may remain
on the Premises upon expiration of the Lease, and (ii) Tenant shall not be required to remove from
the Premises (x) any portion of the Landlord Work, or the Tenant Finish Work, or (y) any
Alterations performed (a) before the date hereof, (b) by Landlord during the Term hereof (unless
upon Tenant’s request), or (c) any Alterations that Landlord designates (or is deemed to designate)
do not require removal in accordance with Section 12.4 below.




          12.4 At the time Tenant requests Landlord’s consent to any Alterations, Tenant may request
that Landlord designate which elements of the Alterations must be removed pursuant to this Section
12 and Landlord shall make that designation on the date Landlord gives Landlord’s consent to such
Alterations. If Tenant’s request is provided in accordance with the foregoing and if Landlord
fails to so notify Tenant whether Tenant shall be required to remove the subject Alterations at the
expiration or earlier termination of this Lease, it shall be deemed that Landlord shall not require
the removal of the subject Alterations.




     13. MECHANICS’ LIENS. Tenant shall pay for all work done on the Premises by Tenant or
at its request of a character which may result in liens on Landlord’s or Tenant’s interest and
Tenant will keep the Premises free of all mechanics’ liens, and other liens on account of such
work. Tenant indemnifies, defends, and saves Landlord harmless from all liability, loss, damage,
or expenses, including attorneys’ fees, on account of any claims of laborers, materialmen or others
for work performed or for materials or supplies furnished to Tenant or persons claiming under
Tenant. If any lien is recorded against the Premises or Building or any suit affecting title
thereto is commenced as a result of such work, or supplying of materials, Tenant shall cause such
lien to be removed of record within fifteen (15) days after notice from Landlord or Tenant shall
post a sufficient bond against the same. If Tenant desires to contest any claim, Tenant must
furnish Landlord adequate security of at least one hundred fifty percent (150%) of the amount of
the claim, plus estimated costs and interest and, if a final judgment establishing the validity of
any lien is entered, Tenant shall promptly pay and satisfy the same. If Tenant fails to proceed as
aforesaid, Landlord may pay such amount and any costs, and the amount paid, together with
reasonable attorneys’ fees incurred, shall be payable to Landlord upon demand.



14









 





     14. SUBLETTING AND ASSIGNMENT.



          14.1 Tenant (which term, for purposes of this Section 14, includes the party originally named
as “Tenant” in this Lease and any other party that has acquired an interest in this Lease by virtue
of a sublease or assignment), shall not sublet any part of the Premises nor assign or otherwise
transfer this Lease or any interest herein or any right to occupy the Premises (sometimes referred
to as “Transfer,” and the subtenant or assignee or other occupant may be referred to as
“Transferee”) without the consent of Landlord first being obtained, which consent will not be
unreasonably withheld provided that: (1) Tenant complies with the provisions of Section 14.4; (2)
Landlord declines to exercise its rights under Section 14.3; (3) the Transferee is engaged in the
Permitted Use and the Premises will be used in a manner which is in keeping with the then standards
of the Building and does not conflict with any exclusive use rights granted to any other tenant of
the Building Complex or any other Building within the project known as Centerra (provided that
Landlord gives Tenant prior written notice of all such restrictions), and any trade name adopted by
the Transferee for the conduct of its business at the Premises is reasonably acceptable to
Landlord; (4) the Transferee has reasonable financial worth in light of the responsibilities
involved; (5) Tenant is not in default (beyond applicable notice and cure periods) at the time it
makes its request; (6) the Transferee is not a governmental or quasi-governmental agency; and (7)
the Transferee is not a tenant or currently negotiating a lease with Landlord in any Building owned
by Landlord in the Loveland — Fort Collins area (including the Building Complex). “Transfer”
includes a sale by Tenant of substantially all of its assets or stock if Tenant is a publicly
traded corporation, a merger of Tenant with another corporation, the transfer of twenty-five
percent (25%) or more of the stock in a corporate tenant whose stock is not publicly traded, or
transfer of twenty-five percent (25%) or more of the beneficial ownership interests in a
partnership or limited liability company tenant.




          14.2 Following any Transfer in accordance with this Section 14, Landlord may, during an Event
of Default by Tenant, collect rent from the Transferee and apply the net amount collected to the
Rent, but no Transfer or collection will be deemed an acceptance of the Transferee as Tenant or
release Tenant from its obligations. Consent to a Transfer shall not relieve Tenant from
obtaining Landlord’s consent to any other Transfer. Notwithstanding Landlord’s consent to a
Transfer, Tenant shall continue to be primarily liable for its obligations. If Tenant collects any
rent or other amounts from a Transferee in excess of the Rent for any monthly period, Tenant shall
pay Landlord the excess monthly, as and when received.




          14.3 Notwithstanding the above, if Tenant requests Landlord’s consent to sublet twenty-five
percent (25%) or more of the Premises, Landlord may refuse to grant such consent in its sole
discretion and terminate this Lease as to the portion of the Premises with respect to which such
consent was requested; provided, however, if Landlord does not consent and elects to terminate the
Lease as to such portion, Tenant may within fifteen (15) days after notice from Landlord to this
effect withdraw Tenant’s request for consent. If such termination occurs, it shall be effective on
the date designated in a notice from Landlord and shall not be more than thirty (30) days following
such notice. Notwithstanding the foregoing, the terms and conditions of this Section 14.3 shall
not apply in connection with a Transfer pursuant to Section 14.7 below.




          14.4 Tenant must notify Landlord at least sixty (60) days prior to the desired date of the
Transfer (“Tenant’s Notice”). Tenant’s Notice shall describe the portion of the Premises to be
transferred and the terms and conditions. Landlord has, without obligation, thirty (30) days
following receipt of Tenant’s Notice, to sublet the space on Tenant’s behalf or to exercise its
rights pursuant to Section 14.3 if Tenant’s Notice discloses that twenty-five percent (25%) or more
of the Premises is involved. If the space covered by Tenant’s Notice is subleased by Landlord,
rent and other sums due from the subtenant will be paid to Tenant directly and Landlord has no
responsibility for the performance by such subtenant of its obligations under its sublease with
Tenant. If Landlord is unwilling or unable to locate a subtenant (and, if applicable, declines to
exercise its rights under Section 14.3), Landlord will notify Tenant not later than thirty (30)
days after receipt of Tenant’s Notice and Tenant shall be free to sublet the specified portion of
the Premises to any third party on terms substantially identical to those described in Tenant’s
Notice, subject to Landlord’s consent as set forth above. If Tenant does not sublet such portion
of the Premises within sixty (60) days following Landlord’s notice to Tenant, Tenant must reoffer
the Premises to Landlord in accordance with the provisions hereof prior to subleasing to a third
party.




15









 




Notwithstanding the foregoing, except with respect to Tenant’s obligation to provide notice to the
Landlord pursuant to the first sentence of this Section 14.4 above, the terms and conditions of
this Section 14.4 shall not apply in connection with a Transfer pursuant to Section 14.7 below.




          14.5 Except as provided in Section 14.7 below, all documents utilized by Tenant to evidence a
Transfer are subject to approval by Landlord. Tenant shall pay Landlord’s actual out-of-pocket
expenses, including reasonable attorneys’ fees, of determining whether to consent and in reviewing
and approving the documents. Tenant shall provide Landlord with such information as Landlord
reasonably requests regarding a proposed Transferee, including financial information.




          14.6 If a trustee or debtor in possession in bankruptcy is entitled to assume control over
Tenant’s rights under this Lease and assigns such rights to any third party notwithstanding the
provisions hereof, the rent to be paid by such party shall be increased to the current Base Rent
(if greater than that being paid for the Premises) which Landlord charges for comparable space in
the Building as of the date of such third party’s occupancy. If Landlord is entitled under the
Bankruptcy Code to “Adequate Assurance” of future performance of this Lease, the parties agree that
such term includes the following:




               (1) Any assignee must demonstrate to Landlord’s reasonable satisfaction a net worth (as
defined in accordance with generally accepted accounting principles consistently applied) at least
as large as the net worth credit of Tenant on the Commencement Date increased by seven percent
(7%), compounded annually, for each year thereafter through the date of the proposed assignment.
Tenant’s financial condition was a material inducement to Landlord in executing this Lease.



               (2) The assignee must assume and agree to be bound by the provisions of this Lease.



          14.7 Notwithstanding anything to the contrary contained in this Lease, Tenant may, without
Landlord’s prior written consent, but upon notice to Landlord, sublet all or any portion of the
Premises or assign Tenant’s interest in this Lease to: (i) a subsidiary, affiliate, parent or other
entity to Tenant which controls, is controlled by, or is under common control with, Tenant; (ii) a
successor entity to Tenant resulting from merger, consolidation, non bankruptcy reorganization, or
government action; or (iii) a purchaser of all or any significant portion of Tenant’s stock or
assets.




     15. DAMAGE TO PROPERTY. Tenant agrees Landlord is not liable for any injury or
damage, either proximate or remote, occurring through or caused by fire, water, steam, or any
repairs, alterations, injury, accident, or any other cause to the Premises, to any furniture,
fixtures, tenant improvements, or other personal property of Tenant kept or stored in the Premises,
or in other parts of the Building Complex, unless caused by the gross negligence or willful
misconduct of Landlord, subject, however, to the waiver of claims by Tenant set forth in Section
18.6 below. The keeping or storing of all property of Tenant in the Premises and Building Complex
is at the sole risk of Tenant.



     16. TENANT’S INSURANCE AND INDEMNITY TO LANDLORD.



          16.1 Except with respect to claims waived by Landlord pursuant to Section 18.6 below, Tenant
agrees to indemnify, defend, and hold Landlord and Building Manager harmless from all liability,
costs, or expenses, including attorneys’ fees, on account of damage to the person or property of
any third party, including any other tenant in the Building Complex, to the extent caused by the
negligence or breach of this Lease by the Tenant or Tenant’s Agents, but except to the extent
caused by the gross negligence or willful misconduct of Landlord or Landlord’s contractors,
licensees, agents, servants, or employees.




          16.2 Tenant shall maintain throughout the Term the following insurance:




               (1) Worker’s compensation insurance for protection of Tenant, its owners, partners and
employees as required by law, and employer’s liability insurance with the following limits:



               (a) Each accident: One Hundred Thousand Dollars ($100,000.00).



16









 





               (b) Each occupational disease: One Hundred Thousand Dollars ($100,000.00).



               (c) Occupational disease aggregate: Five Hundred Thousand Dollars ($500,000.00).


The worker’s compensation and employer’s liability insurance policies of Tenant shall contain a
waiver of subrogation as to Landlord. The limits of liability for this coverage shall be as
required by applicable statute.




               (2) Broad form general liability insurance covering bodily injury, including death, personal
injury, property damage and contractual liability. The broad form general liability insurance
policy shall provide coverage on an occurrence basis and shall include explosion, collapse,
underground hazard and products/completed operations coverage. Minimum limits of liability
provided by this coverage shall be as follows:



               (a) General aggregate: Two Million Dollars ($2,000,000.00).



               (b) Products/completed operations aggregate: Two Million Dollars
($2,000,000.00).



               (c) Personal and advertising injury: One Million Dollars ($1,000,000.00).



               (d) Each occurrence: One Million Dollars ($1,000,000.00).



               (e) Umbrella or excess policy limit: Four Million Dollars ($4,000,000.00).



               (3) Automobile liability insurance covering the use, operation and maintenance of any
automobiles, trucks, trailers or other vehicles owned, hired or non-owned by Tenant providing
bodily injury, including death, and property damage coverage. Minimum limits of liability provided
by this coverage shall be a combined single limit of One Million Dollars ($1,000,000.00).



          With respect to the foregoing insurance policies to be provided by Tenant, Tenant agrees as
follows:




               (1) Tenant shall notify Landlord of any substantial claims (paid or reserved) applied against
the aggregate of any of the required insurance policies. The full aggregate general liability
policy limits required above shall be available with respect to Tenant’s obligations hereunder and
Tenant shall obtain a project specific/location specific aggregate limit endorsement confirming
such coverage.



               (2) All insurance required hereunder shall be maintained in full force and effect in a company
or companies satisfactory to Landlord which shall have a minimum Best rating of A VIII, at Tenant’s
expense, and until the expiration of the Term hereof.



               (3) All insurance shall be subject to the requirements that Landlord must receive prior
written notice thirty (30) days before cancellation of or failure to renew any such policy. In the
event of the threatened cancellation for nonpayment of premiums, Landlord may pay the same on
behalf of Tenant and add such payments to amounts then and subsequently owing to Landlord
hereunder.



               (4) Prior to occupancy of the Premises, and ten (10) days prior to the expiration of the then
current policy, Tenant shall deliver certificates in form reasonably acceptable to Landlord
evidencing that the insurance required under this Lease is in effect.



               (5) Failure to furnish the required insurance certificates in accordance with Section 16.2(4)
above shall constitute an Event of Default hereunder (defined below).



               (6) Landlord and any other party required to be indemnified by Tenant under this Lease shall
be named as an additional insured on Tenant’s policies of automobile liability,
broad form general
liability and any excess liability insurance required by this Lease.



17









 






               (7) All insurance provided by Tenant hereunder shall be primary to any insurance policies held
by Landlord.



     17. SURRENDER AND NOTICE. Upon the expiration or other termination of this Lease,
Tenant shall immediately quit and surrender to Landlord the Premises broom clean, in good order and
condition, ordinary wear and tear and loss by fire or other casualty or condemnation excepted.
Subject to the provisions of Section 12 above, Tenant shall remove all of its movable furniture and
other personal property and related equipment in the Building installed for Tenant, and such
Alterations, as Landlord requires. In addition, Tenant shall remove all telephone and
telecommunication cables installed by Tenant within the Premises unless Landlord shall, not less
than sixty (60) days prior to the expiration of the Lease, give written notice to Tenant that such
telephone and telecommunication cables may remain within the Premises. Notwithstanding any
provision to the contrary contained herein and except as otherwise provided in Section 12.3 above,
Tenant shall not be required or permitted to remove any portion of the Landlord Work or Tenant
Finish Work from the Premises.



     18. INSURANCE, CASUALTY, AND RESTORATION OF PREMISES.



          18.1 Landlord shall maintain property insurance for the Building Complex, the shell and core
of the Building and the Premises in such amounts, from such companies, and on such terms and
conditions, including insurance for loss of Rent as Landlord deems appropriate, from time to time.




          18.2 Tenant shall maintain throughout the Term insurance coverage at least as broad as ISO
Special Form Coverage against risks of direct physical loss or damage (commonly known as “all
risk”) for the full replacement cost of Tenant’s property and betterments in the Premises,
including tenant finish in excess of the initial Tenant finish.




          18.3 If the Building is damaged by fire or other casualty which renders the Premises wholly
untenantable or the damage is so extensive that an architect selected by Landlord certifies in
writing to Landlord and Tenant within sixty (60) days of said casualty that the Premises cannot,
with the exercise of reasonable diligence, be made fit for occupancy within one hundred eighty
(180) days from the happening thereof, then, at the option of Landlord or Tenant exercised in
writing to the other within thirty (30) days of such determination, this Lease shall terminate as
of the occurrence of such damage. In the event of termination, Tenant shall pay Rent duly
apportioned up to the time of such casualty and forthwith surrender the Premises and all interest
in this Lease. If Tenant fails to do so, Landlord may reenter and take possession of the Premises
and remove Tenant. If, however, the damage is such that the architect certifies that the Premises
can be made tenantable within such one hundred eighty (180) day period or neither Landlord nor
Tenant elects to terminate the Lease despite the extent of damage, then the provisions below apply.




          18.4 If the Premises are damaged by fire or other casualty that does not render them wholly
untenantable or require a repair period in excess of one hundred eighty (180) days, Landlord shall
with reasonable promptness except as hereafter provided repair the Premises to the extent of the
initial Tenant finish.




          18.5 If the Building is damaged (though the Premises may not be affected, or if affected, can
be repaired within one hundred eighty [180] days) and within sixty (60) days after the damage
Landlord decides not to reconstruct or rebuild the Building, then, notwithstanding anything
contained herein, upon notice to that effect from Landlord within said sixty (60) days, Tenant
shall pay the Rent apportioned to such date, this Lease shall terminate from the date of such
notice, and both parties shall be discharged from further obligations except as otherwise expressly
provided.




          18.6 Landlord and Tenant waive all rights of recovery against the other and its respective
officers, partners, members, managers, agents, representatives, and employees for loss or damage to
its real and personal property kept in the
Building Complex which is required to be insured by such party hereunder. Tenant also waives all
such rights of recovery against Building Manager. Further, in the event of any sublease of the
Premises pursuant to Section 14 above, the Transferee and Landlord shall be deemed to have waived
all such rights of recovery described above as fully as if the Transferee were




18









 







the Tenant first
executing this Lease. Each party shall, upon obtaining the property damage insurance required by
this Lease, notify the insurance carrier that the foregoing waiver is contained in this Lease and
shall use reasonable efforts to obtain an appropriate waiver of subrogation provision in the
policies.




          18.7 Rent shall abate following any event of casualty or damage described in this Section 18,
in the same proportion that the part of the Premises rendered untenantable or unusable for the uses
permitted hereunder, bears to the whole Premises.




          18.8 If the Premises are materially damaged by fire or other casualty and not restored
(including restoration of the Landlord Work) within sixty (60) days after the date of such fire or
other casualty, then Tenant shall have the right, exercisable by notice to Landlord delivered at
any time after expiration of such 60-day period while failure to restore the Premises and the
Landlord Work persists, to terminate this Lease, effective as of the date of delivery of such
notice.




          18.9 The Landlord shall indemnify and save harmless Tenant, and the directors, officers,
agents, and employees of Tenant, against and from all claims, expenses, or liabilities of whatever
nature (a) arising directly or indirectly from any default or breach by Landlord or Landlord’s
contractors, licensees, agents, servants, or employees under any of the terms or covenants of this
Lease or failure of Landlord or such persons to comply with any rule, order, regulation, or lawful
direction now or hereafter in force of any public authority, in each case to the extent the same
related, directly or indirectly to the management operation or repair of the Building and/or the
use of the Common Areas; or (b) arising directly or indirectly from any accident, injury, or
damage, however caused, to any person or property, on the Common Area as a result of the gross
negligence or willful misconduct of Landlord, or Landlord’s contractors, agents, servants or
employees; or (c) arising directly or indirectly from any accident, injury, or damage to any person
or property occurring outside the Premises but within the Building or on the Building Complex, to
the extent such accident, injury, or damage results from any act or omission of gross negligence or
willful misconduct on the part of Landlord, or Landlord’s contractors, agents, servants, employees,
or anyone claiming by or through Landlord; provided, however, that in no event shall Landlord be
obligated under this Section 18 to indemnify or save harmless Tenant, or the directors, officers,
agents, employees of Tenant, to the extent such claim, expense, or liability results from any
omission, fault, negligence, or other misconduct of Tenant or the contractors, licensees, agents,
servants, employees or invitees of Tenant. This indemnity and hold harmless agreement shall
include, without limitation, indemnity against all expenses, attorney’s fees and liabilities
incurred in connection with any such claim or proceeding brought thereon and the defense thereof
with counsel reasonably acceptable to Tenant. At the request of Tenant, Landlord shall defend any
such claim or proceeding directly on behalf and for the benefit of Tenant.




     19. CONDEMNATION. If the Premises or substantially all of them or any portion of the
Building Complex which renders the Premises untenantable is taken by right of eminent domain, or by
condemnation (which includes a conveyance in lieu of a taking), this Lease, at the option of either
Landlord or Tenant exercised by notice to the other within thirty (30) days after the taking, shall
terminate and Rent shall be apportioned as of the date of the taking. Tenant shall forthwith
surrender the Premises and all interest in this Lease, and, if Tenant fails to do so, Landlord may
reenter and take possession of the Premises. If less than all the Premises is taken, Landlord
shall promptly repair the Premises as nearly as possible to their condition immediately prior to
the taking, unless Landlord elects not to rebuild under Section 18.5. Landlord shall receive the
entire award or consideration for the taking. In the event that this Lease is not terminated as
provided in this Section 19 above, Rent for any portion of the Premises taken or condemned shall be
equitably abated during the unexpired Term of this Lease effective when the physical taking of the
portion of the Premises occurs.



     20. DEFAULT BY TENANT.



          20.1 Each of the following events is an “Event of Default”:




19









 








               (1) Any failure by Tenant to pay Rent on the due date unless such failure is cured within ten
(10) days after written notice by Landlord to Tenant after such payment is past due;



               (2) This Lease or Tenant’s interest is transferred whether voluntarily or by operation of
law
except as permitted in Section 14;



               (3) This Lease or any part of the Premises is taken by process of law and is not released
within thirty (30) days after a levy;



               (4) Commencement by Tenant of a proceeding under any provision of federal or state law
relating to insolvency, bankruptcy, or reorganization (“Bankruptcy Proceeding”);



               (5) Commencement of a Bankruptcy Proceeding against Tenant, unless dismissed within ninety
(90) days after commencement; or



               (6) Tenant fails to perform any of its other obligations and non-performance continues for
thirty (30) days after written notice by Landlord or, if such performance cannot be reasonably had
within such thirty (30) day period, Tenant does not in good faith commence performance within such
thirty (30) day period and diligently proceed to completion; provided, however, Tenant’s right to
cure shall not exceed the period provided by Applicable Law.



          20.2 Remedies of Landlord. So long as an Event of Default exists, Landlord may then
or at any time thereafter, either:




               (1) (a) Without further notice except as required by Applicable Legal Requirements,
reenter
and repossess the Premises or any part and expel Tenant and those claiming through or under Tenant
and remove the effects of both without being deemed guilty of any manner of trespass and without
prejudice to any remedies for arrears of Rent or preceding breach of this Lease. Should Landlord
reenter or take possession pursuant to legal proceedings or any notice provided for by Applicable
Law, Landlord may, from time to time, without terminating this Lease, relet the Premises or any
part, either alone or in conjunction with other portions of the Building Complex, in Landlord’s or
Tenant’s name but for the account of Tenant, for such periods (which may be greater or less than
the period which would otherwise have constituted the balance of the Term) and on such conditions
and upon such other terms (which may include concessions of free rent and alteration and repair of
the Premises) as Landlord, in its sole discretion, determines and Landlord may collect the rents
therefor. Landlord is not in any way responsible or liable for failure to relet the Premises, or
any part thereof, or for any failure to collect any rent due upon such reletting; provided, however
that Landlord agrees to use reasonable efforts to relet the Premises and to collect rent due upon
such reletting. No such reentry or repossession or notice from Landlord shall be construed as an
election by Landlord to terminate this Lease unless specific notice of such intention is given
Tenant. Landlord reserves the right following any reentry and/or reletting to exercise its right
to terminate this Lease by giving Tenant notice, in which event this Lease will terminate as
specified in the notice.



                    (b) If Landlord takes possession of the Premises without
terminating this Lease, Tenant shall
pay Landlord (i) the Rent which would be payable if repossession had not occurred, less (ii) the
net proceeds, if any, of any reletting of the Premises after deducting all of Landlord’s expenses
incurred in connection with such reletting, including all repossession costs, brokerage
commissions, attorneys’ fees, expenses of employees, and alteration and repair costs (collectively
“Reletting Expenses”). If, in connection with any reletting, the new lease term extends beyond the
Term or the premises covered thereby include other premises not part of the Premises, a fair
apportionment of the rent received from such reletting and the Reletting Expenses, will be made in
determining the net proceeds received from the reletting. In determining such net proceeds, rent
concessions will also be apportioned over the term of the new lease. Tenant shall pay such amounts
to Landlord monthly on the days on which the Rent would have been payable if possession had not
been retaken, and Landlord is entitled to receive the same from Tenant on each such day; or



               (2) Give Tenant notice of termination of this Lease on the date specified and, on such date,
Tenant’s right
to possession of the Premises shall cease and the Lease will terminate except as to Tenant’s
liability as hereafter provided as if



20









 




the expiration of the term fixed in such notice were the end
of the Term. If this Lease terminates pursuant to this Section, Tenant remains liable to Landlord
for damages in an amount equal to the Rent which would have been owing by Tenant for the balance of
the Term had this Lease not terminated, less the net proceeds, if any, of reletting of the Premises
by Landlord subsequent to termination after deducting Reletting Expenses. Landlord may collect
such damages from Tenant monthly on the days on which the Rent would have been payable if this
Lease had not terminated and Landlord shall be entitled to receive the same from Tenant on each
such day. Alternatively, if this Lease is terminated, Landlord at its option may recover forthwith
against Tenant as damages for loss of the bargain and not as a penalty an amount equal to the worth
at the time of termination of the excess, if any, of the Rent reserved in this Lease for the
balance of the Term over the then Reasonable Rental Value of the Premises for the same period plus
all Reletting Expenses. “Reasonable Rental Value” is the amount of rent Landlord can obtain for the
remaining balance of the Term.




          20.3 Cumulative Remedies. Suits to recover Rent and damages may be brought by
Landlord, from time to time, and nothing herein requires Landlord to await the date the Term would
expire had there been no Event of Default or termination, as the case may be. Each right and
remedy provided for in this Lease is cumulative and non-exclusive and in addition to every other
right or remedy now or hereafter existing at law or equity, including suits for injunctive relief
and specific performance. The exercise or beginning of the exercise by Landlord of one (1) or more
rights or remedies shall not preclude the simultaneous or later exercise by Landlord of other
rights or remedies. All costs incurred by Landlord to collect any Rent and damages or to enforce
this Lease are also recoverable from Tenant. If any suit is brought because of an alleged breach
of this Lease, the prevailing party is also entitled to recover from the other party all reasonable
attorneys’ fees and costs incurred in connection therewith.




          20.4 No Waiver. No failure by Landlord to insist upon strict performance of any
provision or to exercise any right or remedy upon a breach hereof, and no acceptance of full or
partial Rent during the continuance of any breach constitutes a waiver of any such breach or such
provision, except by written instrument executed by Landlord. No waiver shall affect or alter this
Lease but each provision hereof continues in effect with respect to any other then existing or
subsequent breach hereof.




          20.5 Bankruptcy. Nothing contained in this Lease limits Landlord’s right to obtain as
liquidated damages in any bankruptcy or similar proceeding the maximum amount allowed by law at the
time such damages are to be proven, whether such amount is greater, equal to, or less than the
amounts recoverable, either as damages or Rent, referred to in any of the preceding provisions of
this Section. Notwithstanding anything in this Section to the contrary, any proceeding described
in Section 20.1(5),(6),(7) and (8) is an Event of Default only when such proceeding is brought by
or against the then holder of the leasehold estate under this Lease.




          20.6 Late Payment Charge. Any Rent not paid within ten (10) days after the due date
shall thereafter bear interest at three (3) percentage points above the Prime Rate or the highest
rate permitted by law, whichever is lower, until paid. Any amounts paid by Landlord to cure an
Event of Default of Tenant which Landlord has the right but not the obligation to do, shall, if not
repaid by Tenant within ten (10) days of demand by Landlord, thereafter bear interest at five (5)
percentage points above the Prime Rate until paid. “Prime Rate” means the base rate on Corporate
Loans posted by at least seventy-five percent (75%) of the Nation’s thirty (30) largest banks (as
shown in the Wall Street Journal) on the date closest to the date interest commences.




          20.7 Waiver of Jury Trial. Tenant and Landlord waive any right to a trial by jury in
suits arising out of or concerning the provisions of this Lease.




          20.8 Waiver of Consequential Damages. In no event shall Tenant be responsible for
consequential damages or lost profit incurred by Landlord as a result of any default by Tenant.




     21. DEFAULT BY LANDLORD. In the event of any alleged default on the part of Landlord,
Tenant shall give notice to Landlord and afford Landlord a reasonable opportunity to cure such
default (provided that Landlord shall promptly
commence to cure such default and shall diligently pursue such cure to completion). Such notice
shall be ineffective unless a copy is simultaneously also delivered in the manner required in this
Lease to any Mortgagee, provided that prior to such



21









 







notice Tenant has been notified (by way of
notice of Assignment of Rents and Leases, or otherwise in accordance with Section 30 herein), of
the address of a Mortgagee. If Landlord fails to cure such default within the time provided, then
Mortgagee shall have an additional thirty (30) days following a second notice from Tenant or, if
such default cannot be cured within that time, such additional time as may be necessary, provided
within such thirty (30) days Mortgagee commences and diligently pursues a cure (including
commencement of foreclosure proceedings if necessary to effect such cure). Tenant’s sole remedy
will be equitable relief or actual damages but in no event is Landlord or any Mortgagee responsible
for consequential damages or lost profit incurred by Tenant as a result of any default by Landlord.



     22. HAZARDOUS MATERIAL.



          22.1 During the term of this Lease, Tenant shall comply with all Environmental Laws and
Environmental Permits (each as defined in Section 22.4 hereof) applicable to the operation or use
of the Premises, shall cause all other persons occupying or using the Premises to comply with all
such Environmental Laws and Environmental Permits, shall immediately pay all costs and expenses
incurred by reason of such compliance, and shall obtain and renew all Environmental Permits
required for operation or use of the Premises. Tenant shall not generate, use, treat, store,
handle, release or dispose of, or permit the generation, use, treatment, storage, handling, release
or disposal of Hazardous Materials (as defined in Section 22.4 hereof) on the Premises or transport
or permit the transportation of Hazardous Materials to or from the Premises except for limited
quantities used or stored at the Premises and required in connection with the routine operation and
maintenance of Tenant’s business in the Premises, and then only in compliance with all applicable
Environmental Laws and Environmental Permits.




          22.2 Tenant will immediately advise Landlord in writing of any of the following: (1) any
pending or threatened Environmental Claim (as defined in Section 22.4 hereof) against Tenant
relating to the Premises; (2) any condition or occurrence on the Premises of which Tenant has
knowledge that (i) results in noncompliance by Tenant with any applicable Environmental Law, or
(ii) could reasonably be anticipated to form the basis of an Environmental Claim against Tenant
and/or Landlord or the Premises; and (3) the actual or anticipated taking of any removal or
remedial action in response to the actual or alleged presence of any Hazardous Material on the
Premises. All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and Tenant’s response thereto.
In addition, Tenant will provide Landlord with copies of all communications regarding the Premises
with any government or governmental agency relating to Environmental Laws, all such communications
with any person relating to Environmental Claims, and such detailed reports of any such
Environmental Claim as may reasonably be requested by Landlord.




          22.3 Tenant agrees to defend, indemnify and hold harmless Landlord and its managers, members,
officers, directors, employees, attorneys and agents (collectively, the “Indemnitees”) from and
against all obligations (including, removal and remedial actions), losses, claims, suits,
judgments, liabilities, penalties (including, by way of illustration and not by way of limitation,
civil fines), damages (including consequential and punitive damages), costs and expenses (including
attorneys’ and consultants’ fees and expenses) of any kind or nature whatsoever that may at any
time be incurred by, imposed on or asserted against such Indemnitees directly or indirectly based
on, or arising or resulting from (1) the actual presence of Hazardous Materials on the Premises
which is caused or permitted by Tenant and/or (2) any Environmental Claim relating in any way to
Tenant’s operation or use of the Premises. The provisions of this Section 22.3 shall survive the
expiration or sooner termination of this Lease. Notwithstanding the above, Tenant shall not be
liable for Environmental Claims caused by materials used by Landlord in the original construction
of the Premises.




          22.4 (1) “Hazardous Materials” means (i) petroleum or petroleum products, natural or
synthetic gas, asbestos in any form, urea formaldehyde foam insulation, and radon gas; (ii) any
substances defined as or included in the definition of “hazardous substances,” “hazardous wastes,”
“hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic
substances,” “toxic pollutants,” “contaminants” or “pollutants,” or words of similar import, under
any applicable Environmental Law; and (iii) any other substance exposure which is regulated by any
governmental
authority.




               (2) “Environmental Law” means any federal, state or local statute, law, rule,
regulation, ordinance,



22









 




code, policy or rule of common law now or hereafter in effect and in each
case as amended, and any judicial or administrative interpretation thereof, including any judicial
or administrative order, consent decree or judgment, relating to the environment, health, safety or
Hazardous Materials.




               (3) “Environmental Claims” means any and all administrative, regulatory
or judicial
actions, suits, demands, demand letters, claims, liens, notices of non-compliance or violation,
investigations, proceedings, consent orders or consent agreements relating in any way to any
Environmental Law or any Environmental Permit, including without limitation (i) any and all
Environmental Claims by governmental or regulatory authorities for enforcement, cleanup, removal
response, remedial or other actions or damages pursuant to any applicable Environmental Law and/or
(ii) any and all Environmental Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to health, safety or the environment.



               (4) “Environmental Permits” means all permits, approvals,
identification numbers,
licenses and other authorizations required under any applicable Environmental Law.



          22.5 Landlord hereby agrees to defend, indemnify and hold Tenant harmless from and against any
and all loss, cost, damage, claim or expense (including legal fees) incurred in connection with or
arising out of or relating in any way to the presence of Hazardous Materials as of the date hereof
in or on the Building, Building Complex or Real Property.




     23. SUBORDINATION AND ATTORNMENT.



          23.1 This Lease at Landlord’s option will be subordinate to any mortgage, deed of trust and
related documents now or hereafter placed upon the Building Complex (including all advances made
thereunder), and to all amendments, renewals, replacements, or restatements thereof (collectively,
“Mortgage”).




          23.2 If any Mortgagee elects to have this Lease superior to the lien of its Mortgage and gives
notice to Tenant, this Lease will be deemed prior to such Mortgage whether this Lease is dated
prior or subsequent to the date of such Mortgage or the date of recording thereof.




          23.3 On or before the Commencement Date, Landlord shall deliver to Tenant and Tenant shall
execute together with Wells Fargo Bank, N.A (“Existing Mortgagee”) a Subordination, Non-Disturbance
and Attornment Agreement (an “SNDA”) in the form attached hereto as Exhibit F and incorporated
herein by reference (with such modifications as shall be mutually agreeable to Existing Mortgagee
and Tenant). With respect to any Mortgagee of the Building or the Real Property after the date
hereof, in confirmation of subordination or superior position, as the case may be, Landlord shall
promptly deliver to Tenant and Tenant will execute together with such Mortgagee, an SNDA from any
such Mortgagee, which SNDA shall be in the form attached hereto as Exhibit F (with such
modifications as shall be mutually agreeable to such Mortgagee and Tenant). Provided that Landlord
performs it obligations under this Section 23.3, Tenant agrees that no documentation other than
this Lease is required to evidence such subordination. Landlord represents and warrants that,
except for Existing Mortgagee, there are no Mortgagee(s) of the Building or Real Property as of the
date hereof.




          23.4 Tenant agrees to attorn to all successor owners of the Building, whether such ownership
is acquired by sale, foreclosure of a Mortgage, or otherwise, provided that such successor owner
recognizes Tenant’s rights hereunder pursuant to such SNDA.




23









 





     24. REMOVAL OF TENANT’S PROPERTY. All movable personal property of Tenant not removed
from the Premises upon vacation, abandonment, or termination of this Lease shall be conclusively
deemed abandoned and may be sold, or otherwise disposed of by Landlord without notice to Tenant and
without obligation to account; Tenant shall pay Landlord’s actual out-of-pocket expenses paid in
connection with such disposition.



     25. HOLDING OVER: TENANCY MONTH-TO-MONTH. If, after the expiration or termination of
this Lease, Tenant remains in possession of the Premises and continues to pay rent without a
written agreement as to such holding over, even though Landlord accepts such rent, such possession
is a tenancy from month-to-month, subject to all provisions hereof but at a monthly rent equivalent
to one hundred fifty percent (150%) of the monthly Rent paid by Tenant immediately prior to such
expiration or termination, pro rated on a per diem basis for any partial month. Rent shall
continue to be payable in advance on the first day of each calendar month. Such tenancy may be
terminated by either party upon ten (10) days’ written notice prior to the end of any monthly
period. Nothing contained herein obligates Landlord to accept rent tendered after the expiration of
the Term or relieves Tenant of its liability under Section 17.



     26. PAYMENTS AFTER TERMINATION. No payments by Tenant after expiration or termination
of this Lease or after any notice (other than a demand for payment of money) by Landlord to Tenant
reinstates, continues, extends the Term, or affects any notice given to Tenant prior to such
payments. After notice, commencement of a suit, or final judgment granting Landlord possession of
the Premises, Landlord may collect any amounts due or otherwise exercise Landlord’s remedies
without waiving any notice or affecting any suit or judgment.



     27. STATEMENT OF PERFORMANCE.



          27.1 Tenant agrees at any time upon not less than ten (10) days’ written notice to execute and
deliver to Landlord a written statement 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); that there have been no defaults by Tenant, or to Tenant’s
actual knowledge, Landlord (or, if there have been defaults, setting forth the nature thereof); the
date to which Rent has been paid in advance and such other information as Landlord reasonably
requests. Such statement may be relied upon by a prospective purchaser of Landlord’s interest or
Mortgagee. Upon request, Tenant will furnish Landlord an appropriate resolution confirming that the
party signing the statement is authorized to do so.




          27.2 Landlord agrees at any time upon not less than ten (10) days’ written notice to execute
and deliver to Tenant a written statement 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); that there have been no defaults by Landlord, or to
Landlord’s actual knowledge, Tenant (or, if there have been defaults, setting forth the nature
thereof); the date to which Rent has been paid in advance and such other information as Tenant
reasonably requests. Such statement may be relied upon by third parties. Upon request, Landlord
will furnish Tenant an appropriate resolution confirming that the party signing the statement is
authorized to do so.




     28. LIABILITY OF LANDLORD. Neither Landlord nor any member of Landlord shall have any
personal liability with respect to any provision of this Lease or any obligation or liability
arising from this Lease in the event of a breach or default by Landlord of any of its obligations.
Tenant shall look solely to the equity of Landlord in the Building Complex at the time of the
breach or default for the satisfaction of any remedies of Tenant. Such exculpation of liability
shall be absolute and without exception.



     29. MISCELLANEOUS.



          29.1 Transfer by Landlord. 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 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.





24









 








          29.2 No Merger. The termination or mutual cancellation of this Lease will not work a
merger, and such termination or cancellation will at the option of Landlord either terminate all
subleases or operate as an automatic assignment to Landlord of such subleases.




          29.3 Common Area Use. Except as otherwise expressly provided herein, Landlord may use
any of the Common Areas for the purposes of completing or making repairs or alterations in any
portion of the Building Complex; provided, however, that Landlord does not unreasonably interfere
with Tenant’s access to, or use of, the Premises for the uses permitted hereunder.




          29.4 Independent Covenants. This Lease is to be construed as though the covenants
between Landlord and Tenant are independent and not dependent and Tenant is not entitled to any
setoff of the Rent against Landlord if Landlord fails to perform its obligations; provided,
however, the foregoing does not impair Tenant’s right to commence a separate suit against Landlord
for any default by Landlord so long as Tenant complies with Section 21.




          29.5 Validity of Provisions. If any provision is invalid under present or future
laws, then it is agreed that the remainder of this Lease is not affected and that in lieu of each
provision that is invalid, there will be added as part of this Lease a provision as similar to such
invalid provision as may be possible and is valid and enforceable.




          29.6 Captions. The caption of each Section is added for convenience only and has no
effect in the construction of any provision of this Lease.




          29.7 Construction. The parties waive any rule of construction that ambiguities are to
be resolved against the drafting party. Any words following the words “include,” “including,”
“such as,” “for example,” or similar words or phrases shall be illustrative only and are not
intended to be exclusive, whether or not language of non-limitation is used.




          29.8 Applicability. Except as otherwise provided, the provisions of this Lease are
applicable to and binding upon Landlord’s and Tenant’s respective heirs, successors and assigns.
Such provisions are also considered to be covenants running with the land to the fullest extent
permitted by law.




          29.9 Authority. Tenant and the party executing this Lease on behalf of Tenant
represent to Landlord that such party is authorized to do so by requisite action of Tenant and
agree, upon request, to deliver Landlord a resolution, similar document, or opinion of counsel to
that effect.




          29.10 Severability. If there is more than one (1) party which is the Tenant, the
obligations imposed upon Tenant are joint and several.




          29.11 Acceptance of Keys, Rent or Surrender. No act of Landlord or its
representatives during the Term, including any agreement to accept a surrender of the Premises or
amend this Lease, is binding on Landlord unless such act is by a partner, member, manager or
officer of Landlord, as the case may be, or other party designated in writing by Landlord as
authorized to act. The delivery of keys to Landlord or its representatives will not operate as a
termination of this Lease or a surrender of the Premises. No payment by Tenant of a lesser amount
than the entire Rent owing is other than on account of such Rent nor is any endorsement or
statement on any check or letter accompanying payment an accord and satisfaction. Landlord may
accept payment without prejudice to Landlord’s right to recover the balance or pursue any other
remedy available to Landlord.




          29.12 Building Name and Size. Landlord may as it relates to the Building and Building
Complex: increase the size by adding additional real property, construct other buildings or
improvements, change the location and/or character, or make alterations or additions. If additional
buildings are constructed or the size is increased, Landlord and Tenant shall execute an amendment
which incorporates any necessary modifications to Tenant’s Pro Rata Share.





25












 





          29.13 Diminution of View. Tenant agrees that no diminution of light, air, or view
from the Building entitles Tenant to any reduction of Rent under this Lease, results in any
liability of Landlord, or in any way affects Tenant’s obligations.




          29.14 Limitation of Liability. Notwithstanding anything to the contrary contained in
this Lease, Landlord’s liability is limited to Landlord’s interest in the Building.




          29.15 Non-Reliance. Tenant confirms it has not relied on any statements,
representations, or warranties by Landlord or its representatives except as set forth herein.




          29.16 Written Modification. No amendment or modification of this Lease is valid or
binding unless in writing and executed by the parties.




          29.17 Lender’s Requirements. Tenant will make such modifications to this Lease as may
hereafter be required to conform to any lender’s requirements, so long as such modifications do not
increase Tenant’s obligations or adversely alter its rights hereunder.




          29.18 Effectiveness. Submission of this instrument for examination or signature by
Tenant does not constitute a reservation of or option to lease and it is not effective unless and
until execution and delivery by both Landlord and Tenant.




          29.19 Survival. This Lease, notwithstanding expiration or termination, continues in
effect as to any provisions requiring observance or performance subsequent to termination or
expiration.




          29.20 Time of Essence. Time is of the essence herein.




          29.21 Rules and Regulations. If rules and regulations are attached hereto, they are a
part of this Lease and Tenant agrees that Tenant and Tenant’s Agents shall at all times abide by
such rules and regulations as amended from time to time.




          29.22 Recording. Tenant will not record this Lease. Recording of the Lease by or on
behalf of Tenant is an Event of Default.




          29.23 Termination Options. Tenant shall have the right to terminate this Lease (i)
upon thirty (30) days prior written notice to Landlord, which notice may be delivered to Landlord
at any time on or after February 1, 2009, or (ii) upon five (5) days prior written notice to
Landlord, which notice may be delivered to Landlord at any time on or after the Permanent Space
Lease Commencement Date.




     30. AUTHORITIES FOR ACTION AND NOTICE.



          30.1 Unless otherwise provided, Landlord may act through Landlord’s Building Manager or other
designated representatives from time to time.




          30.2 All notices or other communications required or desired to be given to Landlord must be
in writing and shall be deemed received when delivered personally to any officer, partner, member
or manager of Landlord (depending upon the nature of Landlord) or the manager of the Building
Manager or three (3) days after deposited in the United States mail, postage prepaid, certified or
registered, return receipt requested, addressed as set forth in Section 1.9. All notices or
communications required or desired to be given to Tenant shall be in writing and deemed duly served
when delivered personally to any officer, employee, partner, member or manager of Tenant (depending
upon the nature of Tenant), or three (3) days after deposited in the United States mail, postage
prepaid, certified or registered, return receipt



26









 






requested, addressed to the appropriate address set forth in Section 1.11. Either party may
designate in writing served as above provided a different address to which notice is to be mailed.
The foregoing does not prohibit notice from being given as provided in Rule 4 of Colorado Rules of
Civil Procedure, as amended from time to time.




     31. PARKING. Excluding only parking spaces designated as reserved exclusively for use
by other tenants located in the Building Complex, Tenant shall have the right, at no additional
charge, to use no less than ninety (90) parking spaces within the Building Complex, in the portion
of the parking lot shown on the plan attached hereto as Exhibit H (the “Parking Area”). The
Building Complex will contain not less than one hundred twenty (120) parking spaces. Tenant shall
exercise reasonable efforts to cause its customers, guests and employees to park within the Parking
Area. Similarly, Landlord shall use reasonable efforts to cause other tenants within the Building
Complex, their customers, guests and employees, to refrain from using the ninety (90) parking
spaces designated for use by Tenant at the Parking Area. The use of such parking by Tenant shall
be deemed a license only, and excessive use of parking spaces by Tenant outside the Parking Area
shall be prohibited. All vehicles parked in the parking lot and the personal property therein
shall be at the sole risk of Tenant, Tenant’s Agents and the users of such spaces. Landlord shall
have no liability for loss or damage incurred by Tenant, Tenant’s Agents and the users of such
spaces for whatever cause.



     32. BROKERAGE. Landlord and Tenant represent to the other that it has not employed
any broker with respect to this Lease and has no knowledge of any broker’s involvement in this
transaction except those listed in Sections 1.13 and 1.14 (collectively, the “Brokers”). Landlord
and Tenant shall indemnify the other against any expense incurred as a result of the inaccuracy of
the foregoing representation. Landlord shall pay any commissions due to the Brokers under a
separate agreement(s).



     33. REAL ESTATE BROKER DISCLOSURE. The Tenant expressly acknowledges that Troy C.
McWhinney who has a direct or indirect ownership interest in Landlord is a licensed Colorado real
estate broker who is acting on his own behalf and is not representing Tenant in connection with
this transaction.



     34. RESTRICTIONS ON PERMITTED USES. Landlord and Tenant acknowledge that
the Premises may only be used for the Permitted Use. Landlord or its affiliates may, at any time,
cause to be recorded with the Clerk and Recorder of Larimer County, Colorado, a document containing
the foregoing restrictions on permitted uses of the Premises.



           Tenant further agrees that at no time will any use of the Premises violate the terms of the
Exclusive Use Agreement between Banner Health System and McWhinney Holding Company, LLLP (“MHC
LLLP”), and its affiliates, dated June 28, 2000, and recorded August 2, 2000, at Reception No.
2000052392 or the terms of the Exclusive Use Agreement between Centerra Office Partners, LLC, MHC
LLLP and Poudre Valley Health Care, Inc. dated June 18, 2003, and recorded June 18, 2003, at
Reception No. 20030074443 of the Larimer County, Colorado records (collectively, the “MHC LLLP
Restrictions”).



     35. PUBLIC IMPROVEMENT FEE AND RETAIL SALES FEE. The Tenant hereby acknowledges
and agrees as follows with respect to the Declaration of Covenants Imposing and Implementing the
Centerra Public Improvement Fee dated July 6, 2004 and recorded in the real property records of
Larimer County at Reception No. 2004-0067081 (the “PIF Covenant”) and the Declaration of Covenants
Imposing and Implementing the Centerra Retail Sales Fee dated July 6, 2004 and recorded in the real
property records of Larimer County at Reception No. 2004-0067082 (the “RSF Covenant”) (all
capitalized terms used in this Section 35 and not otherwise defined having the meanings assigned
them in the PIF Covenant and the RSF Covenant): (i) the Tenant is bound by the provisions of the
PIF Covenant and RSF Covenant and agrees to comply with the same to the extent pertaining to the
Tenant, including the requirement to pay Public Improvement Fees and Retail Sales Fees in the event
that the Tenant becomes a Centerra Retailer; (ii) neither the Public Improvement Fee nor the Retail
Sales Fee is a tax in any form and, to the extent that the PIC, the Primary RSF Recipient, any
Designated Receiving Entity, any RSF Receiving Entity or any other entity entitled to Public
Improvement Fee Revenues or Retail Sales Fee Revenues under the MF&I Agreement or any other
agreement is entitled to receive such moneys, such authority is derived through the PIF Covenant,
the RSF Covenant, a collection agreement and the MF&I Agreement, and not through any exercise of
governmental powers; (iii) in addition to any one or more of the declarants of the PIF Covenant and
RSF Covenant, Centerra Metropolitan District No. 1 (the “Service District”), the Bond Trustee, the



27









 




PID, the PIC, the Primary RSF Recipient, any other RSF Recipient or any Designated Receiving Entity
will have a direct cause of action and full right and authority to enforce the obligations of
Centerra Retailers under the PIF Covenant and the RSF Covenant, and no default by the Landlord
hereof under this Lease will entitle Tenant (if a Centerra Retailer) to any offset, deduction, or
other defense to payment of the Public Improvement Fees or Retail Sales Fees due under the
PIF Covenant and RSF Covenant, respectively; (iv) the provisions of the PIF Covenant and the RSF
Covenant that pertain to Centerra Retailers have been approved or agreed to by the Enforcing
Parties and such Parties are or will be relying upon such provisions in taking certain actions with
respect to the Public Improvement Fee, the Retail Sales Fee and the Eligible Costs with the express
condition that the provisions of the PIF Covenant and the RSF Covenant that pertain to Centerra
Retailers may not be amended, modified or waived without the prior written consent of the PIC, the
Service District, the City, and the Primary RSF Recipient and, accordingly, Tenant agrees that no
amendment or modification will be made to, nor any waiver made or accepted by the Tenant with
respect to the provisions of the PIF Covenant or the RSF Covenant that pertain to the Tenant, or
the provisions of this Lease providing for compliance by the Tenant (if a Centerra Retailer) with
the provisions of the PIF Covenant and RSF Covenant, unless such consents have been obtained and
that any purported amendment, modification or waiver without such consents will be void and of no
force and effect.




     36. USA PATRIOT ACT NOTICE. Landlord hereby notifies Tenant that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)
(the “Act”), Landlord is required to obtain, verify and record information that identifies Tenant,
which information includes the name and address of Tenant and other information that will allow
Landlord to identify Tenant in accordance with the Act.



     37. COUNTERPARTS. This Lease may be executed in two (2) or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one (1) and the same
instrument. Any one (1) or more counterpart signature pages may be removed from one (1)
counterpart of the Lease and annexed to another counterpart of the Lease to form a completely
executed original instrument without impairing the legal effect of the signature thereon.



     38. EXHIBITS. See Exhibits A, B, C, D, E, F, G, H and I attached hereto and
incorporated herein.



     IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first above
written and it is effective upon delivery of a fully-executed copy to Tenant.




	 	 	 	 	 	 	 	 	 
	Constant Contact, Inc., a Delaware corporation	 	Centerra Office Tech I, LLC, a Colorado limited
liability company
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	By: McWhinney Real Estate Services, Inc.,

        a Colorado corporation, Manager
	By:
	 	/s/ Gail F. Goodman	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	Print Name:
	 	Gail F. Goodman	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	Print Title:

	 	President and CEO	 	 	 	By:	 	/s/ Douglas L. Hill
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Douglas L. Hill, Chief Operating Officer
	 
	 	 	 	 	 	 	 	 
	ATTEST:
	 	 	 	 	 	 	 	“Landlord”
	 
	 	 	 	 	 	 	 	 
	By:
	 	/s/ Robert P. Nault	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	Print Name:
	 	Robert P. Nault	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	Print Title:
	 	VP and General Counsel	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	“Tenant”	 	 	 	 	 	 






28









 





EXHIBIT A TO LEASE




THE PREMISES

[Intentionally Omitted]




A-1









 








EXHIBIT B TO LEASE




REAL PROPERTY




[Intentionally
Omitted]



 









 





EXHIBIT C TO LEASE




COMMENCEMENT CERTIFICATE




[Intentionally
Omitted]



 









 





EXHIBIT D TO LEASE




RULES AND REGULATIONS




[Intentionally
Omitted]




 









 





EXHIBIT E TO LEASE




LANDLORD WORK AND TENANT FINISH WORK




[Intentionally
Omitted]




E-1









 





EXHIBIT F TO LEASE




SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT




[Intentionally
Omitted]




F-1









 





EXHIBIT G TO LEASE




WORK LETTER

(Office)




Constant Contact, Inc.

1601 Trapelo Road, Suite 329

Waltham, MA 02494




	 	 	 	 	 	 	 
	 

	 	Re:
	 	Tenant: CONSTANT CONTACT, INC., a Delaware corporation
	 
	 	 	 	 	 	 
	 

	 	 	 	Premises:
	 	Approximately 9,249 Rentable Square Feet (the “Premises”)
	 
	 	 	 	 	 	 
	 

	 	 	 	Address:
	 	Suite 210, 4850 Hahns Peak Drive, Loveland, Colorado 80538






Gentlemen:





               Concurrently herewith, you (“Tenant”) and the undersigned (“Landlord”) have
executed a Lease (the “Lease”) covering the Premises.




               The provisions of the Lease are hereby incorporated by reference as if fully set
forth herein and initially capitalized words not defined shall have the same meanings
as set forth in the Lease. In consideration of the execution of the Lease, Landlord
and Tenant mutually agree as follows:



1. Base Building Improvements





               Landlord has completed all required base building improvements, which base
building improvements are hereinafter referred to as the “Base Building Improvements.”
The Base Building Improvements have been completed in a good and workmanlike manner
in accordance with all Applicable Legal Requirements and Title Restrictions.



2. Programming Information and Space Planning





               Prior to the execution of this Work Letter, Tenant provided to Landlord
information necessary for the space planning and engineering of the Premises.
Thereafter, Landlord provided to Tenant a space plan for the Premises incorporating
such information, which space plan was approved by Tenant (the “Approved Space Plan”).
Tenant’s approval of the Approved Space Plan has been or will be evidenced by
Tenant’s execution of a copy of the Approved Space Plan on or before the date of the
execution of the Lease.



3. Construction Drawings





               3.1 Landlord submitted the Approved Space Plan to an architect retained by
Landlord (the “Landlord’s Architect”) which prepared complete architectural plans,
drawings and specifications and complete engineered, mechanical, plumbing, structural
(if required) and electrical working drawings
for all Finish Work (defined below) to be incorporated in and constitute a part of the
Premises (collectively,



G-1









 






“Construction Drawings”). The Construction Drawings have been
approved by Tenant as evidenced by Tenant’s execution of the Construction Drawings on
or before the date of the execution of the Lease.




               3.2 Landlord shall, at Landlord’s sole cost and expense, perform certain
improvements at the Premises described as “Landlord Work” on Exhibit E attached to and
made a part of the Lease. In addition, Landlord shall, at Tenant’s cost and expense
as set forth in Section 5 below, perform certain improvements at the Premises on
behalf of Tenant described as “Tenant Finish Work” on Exhibit E attached to and made a
part of the Lease. For convenience of reference, the “Landlord Work” and the “Tenant
Finish Work” shall sometimes be jointly referred to herein as the “Finish Work.”
Landlord represents and warrants that the Finish Work, as shown on the Construction
Drawings, will be compatible with the Base Building Improvements and comply with all
Applicable Laws, Title Restrictions and all applicable insurance regulations.




               3.3 The Landlord’s Architect, with the approval of Landlord and upon written
notice to Tenant, will make any changes to the Construction Drawings which are
requested or required by applicable governmental authorities to obtain a building
permit. No further changes shall be made by Tenant to the Construction Drawings
without the prior written approval of Landlord (which approval shall not be
unreasonably withheld, conditioned or delayed) and then only after agreement by Tenant
to pay in advance to Landlord (i) fifty percent (50%) of any excess costs of the
Tenant Finish Work over One Hundred Sixty-Eight Thousand Two Hundred Seventy-Seven
Dollars ($168,277.00) that result from the design and/or construction of such changes,
and/or (ii) fifty percent (50%) of any excess costs of the Landlord Work over Two
Hundred Thirty-Six Thousand Four Hundred Seventy-Nine Dollars ($236,479.00) that
result from the design and/or construction of such changes; if any, with the balance
of any costs described in clauses (i) and (ii) above to be paid to Landlord upon
completion of the Finish Work as set forth in Section 5.3 below. Landlord will
respond to all written requests for changes to the Construction Drawings within five
(5) business days of Landlord’s receipt. If Landlord does not respond within such
period, Landlord will be deemed to have consented to the requested changes. Tenant
hereby acknowledges that any changes will be subject to the terms of Section 4.4
below.



4. Construction of Finish Work





               4.1 Landlord shall enter into a contract for construction services to complete
the Finish Work (the “Construction Contract”) with the contractor(s) and
subcontractors selected by Landlord and reasonably approved by Tenant (collectively,
“Landlord’s Contractors”). If Tenant fails to respond within five (5) business days
following notice of Landlord’s Contractors selected by Landlord, Tenant shall be
deemed to have consented to the selection of Landlord’s Contractors. Landlord may
impose such requirements upon the Landlord’s Contractors as Landlord deems
appropriate, including, but not limited to, insurance requirements, lien waiver
procedures and such other requirements as Landlord may reasonably determine to be
appropriate. Promptly following the issuance of a building permit for the Finish Work
by the City of Loveland, Colorado, Landlord will commence and diligently proceed to
complete the Finish Work, subject to the Force Majeure Delays set forth in Section 4.3
below.




               4.2 Landlord shall assume responsibility for performance by the Landlord’s
Contractors of all work, including compliance with Applicable Legal Requirements, and
for all property, equipment, material, tools or machinery of Landlord’s Contractors
placed or stored in the Premises during the completion thereof. All such work shall
be performed in a good and workmanlike manner consistent
with first-class standards.




               4.3 For purpose of this Work Letter, “Force Majeure Delays” means any actual
delay in the construction of the Finish Work (other than Tenant Delays [defined
below]) occasioned by any cause



G-2









 






whatsoever not within the control of Landlord and/or
Landlord’s Contractors and which Landlord and/or Landlord’s Contractors could not, by
reasonable diligence, have avoided, including, but not limited to, delays caused or
contributed to by governmental or quasi-governmental entities, lenders, labor
disputes, adverse weather, and acts of God. Such acts, omissions or circumstances,
however, shall not relieve Landlord of liability in the event of its failure to use
reasonable diligence to remedy the situation and remove the cause in an adequate
manner and with all reasonable dispatch and to give notice and full particulars of the
same in writing to Tenant as soon as possible after the occurrence of the cause relied
on. The requirement that any force majeure be remedied with all reasonable dispatch
shall not require the settlement of strikes or labor controversies by acceding to the
demands of the opposing party or parties.




               4.4 Notwithstanding any provision herein or in the Lease to the contrary, in the
event that Landlord is prevented from substantially completing the Landlord Work or
Tenant Finish Work due to a Tenant Delay (as defined below), the Landlord Work and
Tenant Finish Work shall be deemed to be Substantially Completed for purposes of
determining the Commencement Date under the Lease on that date on which said
Substantial Completion would have occurred but for the applicable Tenant Delay, as
reasonably determined by Landlord’s architect. “Tenant Delay” means any one of the
following to the extent that the same actually delays the Substantial Completion of
the Landlord Work and Tenant Finish Work: (1) delay caused by modifications,
revisions or changes to the Construction Drawings requested by Tenant, its agents or
employees; (2) delays caused by the delivery, installation or completion of any items
specified by Tenant not contained in the Construction Drawings and require ordering or
work deadlines inconsistent with the anticipated Commencement Date; or (3) delay of
any other kind or nature in completion of Finish Work caused by any acts or omissions
of Tenant, its agents or employees, including the failure to respond to reasonable
requests by Landlord in a timely manner. Landlord shall notify Tenant in writing
within a reasonable period of time of any circumstances of which Landlord is aware
that have caused or may cause a Tenant Delay, so that Tenant may take whatever action
is appropriate to minimize or prevent such Tenant Delay. For purposes of the
foregoing sentence, correspondence via e-mail or facsimile delivered to Tenant shall
constitute written notice of such Tenant Delay.




               4.5 Tenant designates and authorizes Tom Howd to act for Tenant in all matters
relating to this Work Letter. Tenant has the right by written notice to Landlord to
change its designated representative.




               4.6 Landlord designates and authorizes Jennifer Johnson to act for Landlord in
all matters relating to this Work Letter. Landlord has the right by written notice to
Tenant to change its designated representative.




               4.7 All notices required hereunder will be in writing in accordance with the
terms and provisions of Section 30.2 of the Lease.



5. Cost of Finish Work





               5.1 Landlord shall be solely responsible for the payment of all costs and
expenses incurred in connection with the completion of the Landlord Work subject to
any modifications due to change orders requested by Tenant as set forth in Section 5.3 below.




               5.2 Tenant shall be responsible for the payment of the costs and expenses in
connection with the completion of the Tenant Finish Work as set forth on Exhibit E to
the Lease with respect to Tenant Finish Work, subject to any modifications due to
change orders requested by Tenant as set forth below. Prior to the commencement of
any Tenant Finish Work, Tenant shall deposit with Landlord an amount equal to
Eighty-Four Thousand One Hundred Thirty-Eight Dollars and Fifty Cents ($84,138.50)
(i.e.,



G-3









 






fifty percent (50%) of the cost of the Tenant Finish Work as set forth on
Exhibit E to the Lease), which deposit may be used by Landlord in connection with the
installation of the Tenant Finish Work. Upon completion of the Tenant Finish Work,
Landlord shall provide Tenant with an invoice (which invoice shall be accompanied by
reasonable supporting documentation) detailing the actual cost of the Tenant Finish
Work. Tenant shall pay to Landlord the remaining balance owing for the Tenant Finish
Work as set forth on Exhibit E to the Lease in an amount not to exceed Eighty-Four
Thousand One Hundred Thirty-Eight Dollars and Fifty Cents ($84,138.50), subject to
Section 5.3 below. Landlord shall reimburse to Tenant any overpayment for the Tenant
Finish Work within thirty (30) days after the completion of such work. Notwithstanding
any provision to the contrary contained in the Lease or this Work Letter, except as
provided in Section 5.3 below, Landlord shall be responsible for any costs of the
Tenant Finish Work in excess of One Hundred Sixty-Eight Thousand Two Hundred
Seventy-Seven Dollars ($168,277.00) and Tenant shall have no obligation therefor.




               5.3 If Tenant requests any changes or substitutions to the Construction Drawings,
Tenant shall pay in advance to Landlord (i) fifty percent (50%) of any estimated
excess costs of the Tenant Finish Work over One Hundred Sixty-Eight Thousand Two
Hundred Seventy-Seven Dollars ($168,277.00) that result from the design and/or
construction of such changes, and/or (ii) fifty percent (50%) of any estimated excess
costs of the Landlord Work over Two Hundred Thirty-Six Thousand Four Hundred
Seventy-Nine Dollars ($236,479.00) that are expected to result from the design and/or
construction of such changes (if any). Any such amounts shall be paid by Tenant to
Landlord prior to the commencement of construction of such changes or substitutions to
the Finish Work but in no event later than five (5) days after receipt of such
estimate from Landlord. Upon completion of such changed or substituted Finish Work,
Landlord shall invoice to Tenant (which invoice shall be accompanied by reasonable
supporting documentation) and Tenant shall pay to Landlord within thirty (30) days
thereafter an amount equal to (i) any excess costs of the Tenant Finish Work over One
Hundred Sixty-Eight Thousand Two Hundred Seventy-Seven Dollars ($168,277.00) that
result from the design and/or construction of such changes to the Finish Work, plus
(ii) any excess costs of the Landlord Work over Two Hundred Thirty-Six Thousand Four
Hundred Seventy-Nine Dollars ($236,479.00) that result from the design and/or
construction of such changes to the Finish Work (as applicable), minus (iii) any costs
previously paid by Tenant pursuant to this Section 5.3. If it is determined that
Tenant has paid Landlord amounts in excess of its obligation under this Section 5.3,
then Landlord shall reimburse such overpayment to Tenant within thirty (30) days after
the completion of such work. Subject to Section 4.4 above, any changes to the
Construction Drawings will be approved by Landlord and Tenant in the manner set forth
in Article 3 above and any changes to the Construction Drawings requested by Tenant
which delay completion of the Finish Work will constitute a “Tenant Delay.”



6. Commencement of Lease





               The Commencement Date of the Lease shall occur upon the later of: (i) June 1,
2008, or (ii) the date upon which the Premises are delivered to Tenant with the
Landlord Work and Tenant Finish Work Substantially Complete. For purposes of the
preceding sentence, the Landlord Work and Tenant Finish Work shall be deemed to be “Substantially Complete” on the later of (i)
the date upon which all Landlord Work and Tenant Finish Work have been performed,
other than any minor details of construction, mechanical adjustment or any other
similar matter, the non-completion of which does not materially interfere with
Tenant’s use of the Premises (“Punch List Items”), and (ii) the date upon which
Landlord obtains a temporary or permanent certificate of occupancy for the Premises
permitting the lawful occupancy and use of the Premises by Tenant for the Permitted
Use. Within fifteen (15) days after the Landlord Work and Tenant Finish Work are
Substantially Complete, Landlord and Tenant shall together conduct an inspection of
the Premises and prepare a list of the Punch List Items setting forth any portions of
the Landlord Work and/or Tenant Finish Work that is not in conformity with such work
as described



G-4









 






on Exhibit E attached to the Lease. Landlord shall correct all such
Punch List Items as promptly as reasonably possible, subject to Force Majeure Delays,
and with a minimum of interference with Tenant’s occupancy and use of the Premises.



	 	 	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CENTERRA OFFICE TECH I, LLC, 

    a Colorado limited liability company	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By: McWhinney Real Estate Services, Inc.,

      a Colorado corporation, Manager	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	/s/ Douglas L. Hill	 	 
	 

	 	 	 	 	 	 

Douglas L. Hill
	 	 
	 

	 	 	 	 	 	Chief Operating Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	                          “Landlord”	 	 






ACCEPTED
AND APPROVED this
30 day of May, 2008.




CONSTANT CONTACT, INC.,

    a Delaware corporation




	 	 	 	 	 
	By:
	 	/s/ Gail F.
Goodman
	 	 
	Print Name:

	 	Gail F. Goodman

	 	 
	Print Title:

	 	President and CFO 

	 	 
	 
	 	 	 	 
	ATTEST:
	 	 	 	 
	 
	 	 	 	 
	By:
	 	/s/ Robert P. Nault 
	 	 
	Print Name:

	 	Robert P. Nault  

	 	 
	Print Title:

	 	VP and General Counsel 

	 	 
	 

	 	“Tenant”	 	 






G-5









 





EXHIBIT H TO LEASE




PARKING AREA




[Intentionally
Omitted]




H-1









 





EXHIBIT I TO LEASE




TITLE RESTRICTIONS




[Intentionally
Omitted]





I-1