exv10w41



 





Exhibit 10.41




AGREEMENT OF LEASE

by and between




9965 FEDERAL DRIVE, LLC

and




THE SPECTRANETICS CORPORATION




[9965 FEDERAL DRIVE]

COLORADO SPRINGS, COLORADO




 









 





AGREEMENT OF LEASE

9965 FEDERAL DRIVE, LLC

THE SPECTRANETICS CORPORATION




TABLE OF CONTENTS




	 	 	 	 	 	 	 
	1.	 	Definitions and Attachments
	 	 	1	 
	2.	 	Demise
	 	 	3	 
	3.	 	Term
	 	 	3	 
	4.	 	Advance Rent
	 	 	5	 
	5.	 	Use
	 	 	6	 
	6.	 	Rent
	 	 	6	 
	7.	 	Requirements of Applicable Law
	 	 	11	 
	8.	 	Certificate of Occupancy
	 	 	12	 
	9.	 	Contest-Statute, Ordinance
	 	 	12	 
	10.	 	Tenant’s Improvements
	 	 	12	 
	11.	 	Repairs and Maintenance
	 	 	13	 
	12.	 	Conduct on Premises
	 	 	15	 
	13.	 	Insurance
	 	 	15	 
	14.	 	Rules and Regulations
	 	 	16	 
	15.	 	Mechanics’ Liens
	 	 	16	 
	16.	 	Tenant’s Failure to Repair
	 	 	17	 
	17.	 	Property – Loss, Damage
	 	 	17	 
	18.	 	Destruction – Fire or Other Casualty
	 	 	17	 
	19.	 	Eminent Domain
	 	 	18	 
	20.	 	Assignment
	 	 	18	 
	21.	 	Default; Remedies; Bankruptcy of Tenant
	 	 	19	 
	23.	 	Services and Utilities
	 	 	22	 
	24.	 	Electric Current
	 	 	23	 
	25.	 	Telephone and Telecommunications
	 	 	23	 
	26.	 	Acceptance of Premises
	 	 	24	 
	27.	 	Inability to Perform
	 	 	24	 
	28.	 	No Waivers
	 	 	24	 
	29.	 	Access to Premises and Change in Services
	 	 	24	 
	30.	 	Estoppel Certificates
	 	 	25	 
	31.	 	Subordination
	 	 	25	 
	32.	 	Attornment
	 	 	25	 
	33.	 	Notices
	 	 	25	 
	34.	 	Intentionally Deleted
	 	 	26	 
	35.	 	Tenant’s Space
	 	 	26	 
	36.	 	Quiet Enjoyment
	 	 	28	 
	37.	 	Vacation of Premises
	 	 	28	 
	38.	 	Members’ Liability
	 	 	28	 
	39.	 	Separability
	 	 	28	 






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	40.	 	Indemnification
	 	 	28	 
	41.	 	Captions
	 	 	29	 
	42.	 	Brokers
	 	 	29	 
	43.	 	Recordation
	 	 	29	 
	44.	 	Successors and Assigns
	 	 	29	 
	45.	 	Integration of Agreements
	 	 	30	 
	46.	 	Hazardous Material; Indemnity
	 	 	30	 
	47.	 	Americans With Disabilities Act
	 	 	32	 
	48.	 	Several Liability
	 	 	33	 
	49.	 	Financial Statements
	 	 	33	 
	50.	 	Definition of Day and Days
	 	 	33	 
	51.	 	Tenant’s Anti-Terrorism Representation
	 	 	33	 
	52.	 	Parking
	 	 	33	 
	53.	 	Right of Expansion
	 	 	33	 
	54.	 	Exterior Signage
	 	 	36	 
	55.	 	Landlord’s Warranties and Covenants
	 	 	36	 
	56.	 	Landlord Default
	 	 	37	 
	57.	 	Right of First Refusal to Purchase
	 	 	37	 







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AGREEMENT OF LEASE




     THIS AGREEMENT OF LEASE (this “Lease”) made this 29th day of December, 2006 (the “Effective
Date”), by and between 9965 FEDERAL DRIVE, LLC (the “Landlord”) and THE SPECTRANETICS CORPORATION
(the “Tenant”), witnesseth that the parties hereby agree as follows:



W I T N E S S E T H:




     THAT FOR AND IN CONSIDERATION of the mutual covenants and agreements herein contained, the
parties hereto do hereby covenant and agree as follows:



1. Definitions and Attachments.




     1.1 Certain Defined Terms.



          1.1.1 “Building” means the office building located at 9965 Federal Drive, Colorado Springs,
which is located within El Paso County, Colorado.




          1.1.2 “Rentable Area of the Building” means 74,749 rentable square feet, subject to adjustment
in accordance with BOMA standards.




          1.1.3 “Phase I Premises” means that portion of the Building described on the schedules
attached hereto as Exhibits “A-1, A-2 and A-3” and made a part hereof.




          1.1.4 “Phase II Premises” means that portion of the Building described on the schedules
attached hereto as “Exhibits “A-1 and A-3” and made a part hereof.




          1.1.5 “Premises” means the Phase I Premises until the Phase II Commencement Date (as defined
herein), and thereafter shall mean both the Phase I Premises and the Phase II Premises, which shall
be the entire Building.




          1.1.6 “Rentable Area of the Premises” means the Rentable Area of Phase I Premises until the
Phase II Commencement Date, and thereafter shall mean, collectively, the “Rentable Area of Phase I
Premises” and the “Rentable Area of Phase II Premises.”




          1.1.7 “Rentable Area of Phase I Premises” means 41,120 rentable square feet.




          1.1.8 “Rentable Area of Phase II Premises” means 33,629 rentable square feet.




          1.1.9 “Initial Term” means a period of ten (10) years plus the part of a month mentioned in
Section 3.1, commencing and ending as provided in Section 3.1.




          1.1.10 “Renewal Terms” shall have the meaning set forth in Section 3.3.




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          1.1.11 “Annual Base Rent” means the amount set forth on the following schedule:




	 	 	 	 	 	 	 	 	 
	Lease Year	 	Annual Base Rent	 	Monthly Installments of Annual Base Rent
	1
	 	$	486,432.25	*	 	$	40,536.02	 
	 
	 	 	 	 	 	 	 	 
	2 (prior to Phase II
	 	$	506,992.25	**	 	$	42,249.35	 
	Commencement Date)
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	2 (after Phase II
	 	$	916,639.75	 	 	$	76,386.65	 
	Commencement Date)
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	3
	 	$	954,014.25	 	 	$	79,501.19	 
	4
	 	$	991,388.75	 	 	$	82,615.73	 
	5
	 	$	1,028,763.25	 	 	$	85,730.27	 
	6
	 	$	1,066,137.75	 	 	$	88,844.81	 
	7
	 	$	1,103,512.25	 	 	$	91,959.35	 
	8
	 	$	1,140,886.75	 	 	$	95,073.90	 
	9
	 	$	1,178,261.25	 	 	$	98,188.44	 
	10
	 	$	1,215,635.75	 	 	$	101,302.98	 








 




			
	*	 	No Base Rent shall be due until the Phase I Rent Commencement Date. See Section
6.1.1. .
	 
	**	 	The parties acknowledge that a portion of the Base Rent for the Phase II Premises
shall be abated in accordance with Section 6.1.2.





          1.1.12 “Phase I Target Date” means March 15, 2007.




          1.1.13 “Phase II Target Date” means the first (1st) anniversary of the Phase I
Commencement Date.




          1.1.14 “Advance Rent” means the sum of $40,536.02. See Section 4.




          1.1.15 “Tenant’s Proportionate Share” means that percentage which is computed by a fraction,
the numerator of which is the Rentable Area of the Premises and the denominator of which is the
Rentable Area of the Building. As of the Phase I Commencement Date, as defined herein, Tenant’s
Proportionate Share is 55%. As of the Phase II Commencement Date, as defined herein, Tenant’s
Proportionate Share will be 100%.




          1.1.16 “Tenant Notice Address” means



Prior to Commencement Date:



96 Talamine Court

Colorado Springs, CO 80907-5186

Attn: Chief Financial Officer

Telephone: (719) 633-8833

Telecopier: (719) 442-2525



After the Commencement Date:



9965 Federal Drive

Colorado Springs, Colorado 80920

Attn: Chief Financial Officer

Telephone (719) 633-8333

Telecopier (719) 442-2525




          1.1.17 “Allowance” shall have the meaning set forth in Section 35.




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          1.1.18 “Broker” means, collectively, NAI Highland Commercial Group, LLC and Equis Corporation.




1.2 Additional Defined Terms.




     The following additional terms are defined in the places in this Lease noted below:



	 	 	 
	Term	 	Section
	“ADA”
	 	47
	“Applicable Laws”
	 	7
	“Building Expenses”
	 	6.2.2
	“Commencement Date”
	 	3.1
	“Common Areas”
	 	6.2.4
	“Default Rate”
	 	6.6
	“Hazardous Material”
	 	46
	“HVAC”
	 	23
	“Landlord’s Notice”
	 	3.3
	“Lease Year”
	 	6.2.5
	“Mortgagee”
	 	31
	“Prevailing Market Rate”
	 	3.3
	“Property”
	 	6.2.1
	“Substantially Complete”
	 	3.2
	“Successor”
	 	32
	“Taxes”
	 	6.2.3
	“Tenant Improvements”
	 	35
	“Term”
	 	3.4






1.3 Attachments.




     The following documents are attached hereto, and such documents, as well as all drawings and
documents prepared pursuant thereto, shall be deemed to be a part hereof:



	 	 	 	 	 
	 

	 	Exhibit “A-1”
	 	- Floor Plan for First Floor of Premises
	 
	 

	 	Exhibit “A-2”
	 	- Floor Plan for Second Floor of Premises
	 
	 

	 	Exhibit “A-3”
	 	- Floor Plan for Third Floor of Premises
	 
	 

	 	Exhibit “B”
	 	- Rules and Regulations
	 
	 

	 	Exhibit “C”
	 	- Schedule of Tenant Improvements
	 
	 

	 	Exhibit “D”
	 	- Estoppel Certificate
	 
	 

	 	Exhibit “E”
	 	- Commencement Date Agreement
	 
	 

	 	Exhibit “F”
	 	- Signage
	 
	 

	 	Exhibit “G:
	 	- Tenant’s Fixtures
	 
	 

	 	Exhibit “H”
	 	- Equipment to be Maintained by Landlord
	 
	 

	 	Exhibit “I”
	 	- Janitorial Specifications
	 
	 

	 	Exhibit “J”
	 	- Equipment to be Maintained by Tenant
	 
	 

	 	Exhibit “K”
	 	- Form of Purchase and Sale Agreement





2. Demise. Landlord hereby leases unto Tenant, and Tenant does hereby rent from Landlord
the Premises. In addition thereto, Tenant shall have the right to use, on a non-exclusive basis,
and in common with the other tenants of the Building the Common Areas of the Building (as that term
is defined in Section 6.2.4 hereof). The parties acknowledge that Tenant will require and
will have access to the Premises and the Common Areas 24 hours per day, 7 days per week.




3. Term.




     3.1 Commencement Date and Term.



          3.1.1 The parties acknowledge that Tenant shall take possession of the Premises in two phases.
This Lease shall commence on the “Phase I Commencement Date” (as herein defined) and shall be for
the Initial Term, plus the portion of a calendar month, if any, from the


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Phase I Rent Commencement Date (as defined herein) to the last day of the calendar month in
which such Phase I Rent Commencement Date occurs. As used in this Lease, the term “Phase I
Commencement Date”, as advanced or postponed pursuant to the terms hereof, shall be defined as the
earlier to occur of (a) the date on which Tenant takes possession and occupancy of the Phase I
Premises to conduct business or (b) five (5) days following that date which is the last on which
all of the following events have occurred, namely (i) the Premises are “substantially completed”,
as defined in Section 3.2 following, and (ii) Landlord has given Tenant notice that the
Phase I Premises are “substantially completed.”




          3.1.2 As used in this Lease, the term “Phase II Commencement Date,” as advanced or postponed
pursuant to the terms hereof, shall be defined as the earlier to occur of (a) the date on which
Tenant takes possession and occupancy of the Phase II Premises to conduct business or (b) five (5)
days following that date which is the last on which all of the following events have occurred,
namely (i) the Premises are “substantially completed,” as defined in Section 3.2 following,
(ii) Landlord has given Tenant notice that the Phase II Premises are “substantially completed,” and
(iii) the Phase II Target Date has arrived. Notwithstanding the foregoing, the parties acknowledge
and agree that the Phase II Premises includes the Clean Room (as defined herein) and that Tenant
shall be responsible for constructing the Clean Room. For purposes of determining whether the
Phase II Premises is “substantially complete,” the status of construction of the Clean Room shall
not be taken into account.




          3.1.3 Within fifteen (15) days after request from Landlord, Tenant shall execute and deliver
the Commencement Date Agreement in substantially the form attached hereto as Exhibit “E” to
memorialize the Phase I Commencement Date and the Phase II Commencement Date.




     3.2 Substantial Completion. Landlord shall use its reasonable efforts to
“substantially complete” the Premises by the Phase I Target Date and the Phase II Target Date,
respectively, provided that such dates shall be extended for the number of days that Tenant fails
to satisfy its obligations under Section 35. “Substantially complete” means that: (i) the
construction of the improvements described in Section 35 has been completed so that Tenant
can use the Phase I Premises or Phase II Premises, as applicable, for its intended purposes without
material interference to Tenant conducting its ordinary business activities, (ii) the Phase I
Premises or the Phase II Premises, as applicable, have been approved for occupancy by governmental
authorities having jurisdiction and a certificate of occupancy or temporary certificate of
occupancy has been issued for the Phase I Premises or the Phase II Premises, as applicable, (iii)
Tenant has ready access to the Building and the Phase I Premises or the Phase II Premises, as
applicable, through the lobby, hallways and elevators, (iv) the Phase I Premises or the Phase II
Premises, as applicable, are ready for installation of any equipment, furniture, fixtures or
decoration that Tenant will install, and (v) the Phase I Premises tenant finish work or the Phase
II Premises tenant finish work, as applicable, has been installed and completed in a good and
workmanlike manner and in compliance with all laws, rules, regulations and ordinances. Landlord
shall keep Tenant advised as to its progress with regard to “substantially completing” the Phase I
Premises by the Phase I Target Date and with regard to “substantially completing” the Phase II
Premises by the Phase II Target Date. Notwithstanding the foregoing, the requirements of
subsection (ii) shall be deemed satisfied if all of the other subsections have been satisfied and
the government approval is delayed as a result of the installation of furniture, fixtures or
equipment which is not included and is a part of Tenant’s responsibilities under Section 35
below. Notwithstanding anything in this Lease to the contrary, if substantial completion has not
occurred for the Phase I Premises on or before the date that is 165 days following the Effective
Date (the “Required Phase I Delivery Date”), and such delay is not a result of a Tenant Caused
Delay (as defined herein) or for any reason listed in Section 27 of this Lease, then
Tenant will receive a day for day rent credit following the Phase I Commencement Date for each day
that the Phase I Commencement Date is delayed beyond the Required Phase I Delivery Date. For
example, if the Required Phase I Delivery Date is June 15, 2007, and the Phase I Commencement Date
occurs on July 20, 2007, then Tenant will receive a 35 day rent credit following the Phase I Rent
Commencement Date.



     3.3 Option to Extend Lease Term. Provided Tenant is not in default of any term,
covenant or condition of this Lease beyond all applicable cure periods, Tenant shall have the



4









 







option to extend the Initial Term of this Lease for two (2) additional periods of five (5) years
each (the “First Renewal Term”, the “Second Renewal Term” or collectively the “Renewal Terms”) to
commence immediately upon the expiration of the Initial Term or the First Renewal Term, as
applicable.



     Tenant’s rental of the Premises during the First Renewal Term and Second Renewal Term shall be
upon the same terms, covenants and conditions contained in this Lease, except that Tenant shall pay
to Landlord as Base Rent ninety-five percent (95%) of the “Prevailing Market Rate” for the Premises
for the First Renewal Term or the Second Renewal Term, as applicable, as hereinafter defined
(including annual adjustments). For purposes of this Section 3.3, the term “Prevailing
Market Rate” shall mean the then prevailing market rate being charged for comparable space in
comparable office buildings within a ten (10) mile radius of the Premises, with consideration given
for the size of the Premises, the economic strength of the tenant, construction allowances,
commissions, free rent, and other concessions or premiums. In order to exercise its option granted
herein, Tenant shall notify Landlord in writing of its intent to renew not less than two hundred
seventy (270) days but not more than five hundred forty (540) days prior to the expiration of the
Initial Term or the First Renewal Term, as applicable. Within thirty (30) days following the
exercise by Tenant of its option to extend the Lease for the First Renewal Term or the Second
Renewal Term, as applicable, Landlord shall notify Tenant in writing of its determination of the
Prevailing Market Rate for the First Renewal Term or the Second Renewal Term, as applicable, as
reasonably determined by Landlord (“Landlord’s Notice”). Within ten (10) days after receipt of
Landlord’s Notice, Tenant shall notify Landlord in writing of Tenant’s acceptance or rejection of
such rate. If Tenant shall accept such Prevailing Market Rate, Landlord and Tenant shall enter
into an amendment to this Lease acknowledging such renewal and setting forth any terms at variance
with the terms of this Lease. If within the ten (10) day period, Tenant shall reject such
Prevailing Market Rate as determined by Landlord for the First Renewal Term or the Second Renewal
Term, as applicable, then within twenty (20) days thereafter, Landlord and Tenant shall meet at a
mutually acceptable time and place and shall use their reasonable efforts to agree upon the
Prevailing Market Rate. If Landlord and Tenant shall fail to agree upon such Prevailing Market Rate
within the twenty (20) day period, Landlord and Tenant shall each appoint an independent commercial
leasing broker licensed in the Colorado area within the next ten (10) days (the “Brokers”). Such
Brokers shall deliver their respective estimates of the Prevailing Market Rate within ten (10) days
after being appointed. If the estimates of the Prevailing Market Rate as quoted by the Brokers are
within ten percent (10%) of each other, the Prevailing Market Rate shall be deemed to be the
average of the estimates presented by the Brokers. If the estimates of the Prevailing Market Rate
as quoted by the Brokers differ by more than ten percent (10%), then Landlord and Tenant shall
jointly appoint a third independent commercial leasing broker licensed in the Colorado area within
ten (10) days after the receipt of the initial brokers’ estimates (the “Third Broker”) who shall
deliver its estimate of the Prevailing Market Rate within ten (10) days after being appointed and
such estimate shall be deemed to be the Prevailing Market Rate. Tenant shall notify Landlord
within ten (10) days after receipt of the estimate of the Prevailing Market Rate (whether as
resulting from the average of the Brokers or from the Third Broker, as applicable), whether Tenant
shall accept such Prevailing Market Rate, whereupon Landlord and Tenant shall enter into an
amendment to this Lease acknowledging such renewal and setting forth any terms at variance with the
terms of this Lease. If (i) Tenant shall fail to respond to Landlord’s Notice as provided above,
(ii) Tenant shall fail to deliver the requisite notice exercising its option to extend by the date
prescribed above, (iii) Tenant does not respond within ten (10) days following receipt of
Landlord’s Notice or (iv) Tenant does not accept the Prevailing Market Rate within ten (10) days
following Landlord’s notification of the Prevailing Market Rate, as determined either by the
average of the Brokers or from the Third Broker, as applicable, then Tenant’s option to extend this
Lease for the First Renewal Term or the Second Renewal Term, as the case may be, shall be void and
inoperable. Landlord and Tenant shall each pay the fee of the broker designated by them
originally and shall split the fees of the Third Broker.



     3.4 Definition of “Term”. As used herein, the word “Term” shall refer to the Initial
Term and the Renewal Term, if applicable.


4. Advance Rent. Upon execution of this Lease, Tenant shall pay Landlord the Advance Rent
to be held as advance rent and security and which Landlord shall be
entitled to retain,


5









 






without limitation of other remedies, for any Event of Default by Tenant under
this Lease occurring prior to the commencement of the Term. If no such Event of Default occurs,
the Advance Rent shall be applied by Landlord against first installments of Annual Base Rent
payable by Tenant hereunder.



5. Use. Tenant shall use the Premises during the Term of this Lease solely for general
office purposes, light manufacturing, and research and development activities in accordance with
applicable zoning regulations and for no other purposes, without Landlord’s prior written consent.
For purposes of this Lease, the term “general office use” shall not include use as a school,
college, university or educational institution of any type, use for any purpose which is not
consistent with the operation of the Building as a first-class office building, or use as an
recruitment or temporary help service or agency. Tenant acknowledges that violation of the
allowable uses shall be a material breach of this Lease.




6 Rent.




     6.1 Annual Base Rent. As rent for the Premises during each year of the Term, except
as otherwise set forth in Section 56 of this Lease, Tenant shall pay to Landlord an Annual
Base Rent, in equal monthly installments, in advance on the first day of each calendar month during
the Term, and without deduction, setoff or demand in accordance with the schedule set forth in
Section 1.1.11 above.



          6.1.1 Base Rent for Phase I Premises. Notwithstanding the foregoing and subject to
Paragraph 3.2 above, the first installment of Base Rent for the Phase I Premises shall be due on
the one hundred fifty-first (151st) day following the Phase I Commencement Date (the
“Phase I Rent Commencement Date”). If the Phase I Rent Commencement Date should occur on a day
other than the first day of a calendar month, Tenant shall pay to Landlord upon the Phase I Rent
Commencement Date, a sum equaling that percentage of the monthly rent installment which equals the
percentage of such calendar month from and after the Phase I Rent Commencement Date through the end
of such calendar month.




          6.1.2 Base Rent for Phase II Premises. The parties acknowledge that Tenant’s payments
of Base Rent shall be phased in for the Phase II Premises. During the period between the Phase II
Commencement Date and the Phase II Full Rent Commencement Date (as defined herein), Tenant’s
Monthly Installment of Annual Base Rent shall be reduced by that portion of the Annual Base Rent
attributable to that portion of the Phase II Premises that shall be designated as the “Clean Room,”
up to a maximum of 13,000 rentable square feet. At the time of completion of the Clean Room,
Landlord and Tenant shall execute an amendment to this Lease to memorialize the square footage of
the Clean Room and to set forth the reduction in Tenant’s Monthly Installment of Annual Base Rent
for that period. On the ninety-first (91st) day following the Phase II Commencement
Date (the “Phase II Full Rent Commencement Date”), Tenant shall pay Base Rent for the entire Phase
II Premises.




     6.2 Definitions For the purposes hereof, the following definitions shall apply:



          6.2.1 “Property” shall mean the Building, the land upon which same is situated and all
fixtures and equipment thereon or therein, all commonly owned or shared appurtenances, including
but not limited to, parking areas, walkways, landscaping and utilities, whether located on the land
upon which the Building is situated or elsewhere.




          6.2.2 “Building Expenses” shall be all those expenses paid or incurred by Landlord or
Landlord’s property manager directly and actually incurred in connection with the owning,
maintaining, operating and repairing of the Property or any part thereof, in a manner deemed
reasonable and appropriate by Landlord and shall include, without limitation, the following:




               6.2.2.1 All costs and expenses of operating, repairing, lighting, cleaning, and insuring
(including liability for personal injury, death and property damage and workers’ compensation
insurance covering personnel) the Property or any part thereof, as well as all costs incurred in
removing snow, ice and debris therefrom and of policing and regulating traffic with



6









 




respect thereto, and depreciation of all machinery and equipment used therein or herein to the
extent that such machinery and equipment are being used beyond Normal Business Hours, which
purposes of this Section 6.2.2.1 shall mean 8:00 a.m. to 6:00 p.m. on business days and from 8:00
a.m. to 1:00 p.m. on Saturdays, replacing or repairing of pavement, parking areas, curbs, walkways,
drainage, lighting facilities, landscaping (including replanting and replacing flowers and other
planting);




               6.2.2.2 Electricity, steam and fuel used in lighting, heating, ventilating and air
conditioning and all costs, charges, and expenses incurred by Landlord in connection with any
change of any company providing electricity service, including, without limitation, maintenance,
repair, installation and service costs associated therewith, as well as all expenses associated
with the installation of any energy or cost savings devices;



               6.2.2.3 Maintenance and repair of mechanical and electrical equipment including heating,
ventilating and air conditioning equipment;



               6.2.2.4 Window cleaning and janitor service, including equipment, uniforms, and supplies;



               6.2.2.5 Maintenance of elevators, stairways, rest rooms, lobbies, hallways and other Common
Areas;



               6.2.2.6 Repainting of all Common Areas;



               6.2.2.7 Repair and maintenance of the parking areas, including without limitation, the
resurfacing and striping of said areas;



               6.2.2.8 Sales or use taxes on supplies or services;



               6.2.2.9 Management fees equal to 3.5% of the gross rents and expenses (excluding utilities
and janitorial services) of the Building, which covers wages, salaries and compensation of all
persons engaged in the management of the Property and the provision of amenities to all tenants in
the Property (including Landlord’s share of all payroll taxes and the cost of an on-site or near
site office and segregated storage area for Landlord’s parts, tools and supplies);



               6.2.2.10 Accounting and engineering fees and expenses, except for those related to disputes
with tenants or that are a result of and/or are based on Landlord’s negligence or other tortious
conduct;



               6.2.2.11 Costs and expenses that may result from compliance with any governmental laws or
regulations that were not applicable to the Property and the Common Areas (if applicable) as of the
Phase I Commencement Date; and



               6.2.2.12 All other expenses which under generally accepted accounting principles would be
considered as an expense of maintaining, operating, or repairing the Property. Notwithstanding the
foregoing, all expenses (whether or not such expenses are enumerated on items 1 through 11 of this
Section 6.2.2) which would be considered capital in nature under generally accepted
accounting principles shall be excluded from “Building Expenses” unless same are amortized in
accordance with generally accepted accounting principles (“GAAP”), and the following items will
also be excluded:



               (a) Costs of decorating, redecorating, or special cleaning or other services not provided on a
regular basis to tenants of the Building;



               (b) Wages, salaries, fees, and fringe benefits paid to employees of Landlord above the level
of property manager;



               (c) Any charge for depreciation of the Building and any interest or other financing charge;



7









 





               (d) Any charge for Landlord’s income taxes, excess profit taxes, franchise taxes, or similar
taxes on Landlord’s business;



               (e) All costs relating to activities for the solicitation and execution of leases of space in
the Building;



               (f) All costs for which Tenant or any other tenant in the Building is being charged other than
pursuant to Article 6 or comparable sections in other tenants’ leases;



               (g) The cost of correcting defects in the construction of the Building or in the Building
equipment, except that conditions (not occasioned by construction defects) resulting from ordinary
wear and tear will not be deemed defects for the purpose of this category;



               (h) The cost of any repair made by Landlord because of the total or partial destruction of the
Building or the condemnation of a portion of the Building;



               (i) The cost of any items for which Landlord is reimbursed by insurance or otherwise
compensated by parties other than tenants of the Building;



               (j) The cost of any additions to the Building subsequent to the Phase I Commencement Date,
except as such expenses may be amortized in accordance with GAAP;



               (k) intentionally deleted;



               (l) Any operating expense representing an amount paid to a related corporation, entity, or
person which is in excess of the amount which would be paid in the absence of such relationship;
and



               (m) The cost of overtime or other expense to Landlord in curing its defaults or performing
work expressly provided in this Lease to be borne at Landlord’s expense.



          6.2.3 “Taxes” shall mean all real property taxes including currently due installments of
assessments, sewer rents, ad valorem charges, water rates, rents and charges, front foot benefit
charges, and all other governmental impositions in the nature of any of the foregoing. Excluded
from Taxes are (i) federal, state or local income taxes, (ii) franchise, gift, transfer, excise,
capital stock, estate or inheritance taxes, and (iii) penalties or interest charged for late
payment of Taxes. If at any time during the Term the method of taxation prevailing at the
commencement of the Term shall be altered so as to cause the whole or any part of the items listed
in the first sentence of this subparagraph to be levied, assessed or imposed, wholly or partly as a
capital levy, or otherwise, on the rents received from the Building, wholly or partly in lieu of
imposition of or in addition to the increase of taxes in the nature of real estate taxes issued
against the Property, then the charge to Landlord resulting from such altered additional method of
taxation shall be deemed to be within the definition of “Taxes.”




          6.2.4 “Common Areas” shall mean those areas and facilities which may be from time to time
furnished to the Building by Landlord for the non-exclusive general common use of tenants and other
occupants of the Building, their officers, employees, and invitees, including (without limitation)
the hallways, stairs, parking facilities, washrooms, and elevators.




          6.2.5 “Lease Year” shall mean the period commencing on the Phase I Commencement Date and
ending the last day of the twelfth (12th) month after the Phase I Rent Commencement Date
and each succeeding twelve (12) month period thereafter up to the end of the Term; provided,
however, that if the Phase I Rent Commencement Date shall occur on a day other than the first day
of a calendar month, then the first Lease Year shall include that portion of a calendar month in
which the Phase I Rent Commencement Date occurs in addition to the first twelve (12) month period.




          6.2.6 “Operating Year” shall mean each calendar year or part thereof occurring during the
Term.




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     6.3 Rent Adjustments for Taxes. Tenant further agrees to pay to Landlord as Additional
Rent Tenant’s Proportionate Share of the Taxes for any calendar year or any part thereof occurring
during the Term. Such payment shall be made within thirty (30) days after receipt of a bill from
Landlord, accompanied with a copy of the tax bill and Landlord’s computation of Tenant’s
Proportionate Share thereof. Prior to the commencement of each Operating Year, Landlord may, at
its option, furnish to Tenant a written statement setting forth Landlord’s estimate of the amount
of Taxes for such Operating Year. Tenant shall pay its Proportionate Share of Landlord’s estimated
Taxes in equal monthly installments, in advance, as additional rent together with Base Rent. At
the expiration of each Operating Year, Landlord shall certify to Tenant the actual Taxes for such
Operating Year and within thirty (30) days after receipt of certification, Tenant shall, pay, as
Additional Rent, the deficiency, if any, in Taxes payable by Tenant for such Operating Year (the
“Annual Tax Statement”). If at the end of such Operating Year, the total amount paid by Tenant as
Tenant’s Proportionate Share of Taxes is greater than the amount required to be paid for such
Operating Year, then, if Tenant is not in default hereunder (after the giving of any required
notices and the expiration of any cure periods), the amount of such excess payment will be applied
by Landlord to the next succeeding monthly installment of Base Rent due hereunder. If there are
any such excess payments made during the final Operating Year, then, if Tenant is not in default
hereunder (after the giving of any required notices and the expiration of any cure periods), the
amount of such excess will be refunded to Tenant within thirty (30) days after such certification.
Supplementing the provisions of the immediately preceding sentence, if Tenant is in default, then
Landlord agrees to credit such excess payments against any Base Rent, additional rent and/or other
amounts due from Tenant. Notwithstanding anything to the contrary set forth above, the parties
acknowledge and agree that during the period between the Phase I Commencement Date and the Phase I
Rent Commencement Date, Tenant shall pay Tenant’s Proportionate Share of Taxes for the Phase I
Premises and shall continue to pay Tenant’s Proportionate Share of Taxes for the Phase I Premises
only until the Phase II Commencement Date. As of the Phase II Commencement Date, Tenant shall pay
Tenant’s Proportionate Share of Taxes for the entire Premises.



     All reasonable expenses incurred by Landlord (including attorneys’, appraisers’ and
consultants’ fees, and other costs) in contesting any increase in Taxes or any increase in the
assessment of the Property shall be included as an item of Taxes for the purpose of computing
additional rent due hereunder. If Tenant wants to contest any increase in Taxes, Tenant shall send
Landlord written notice requesting that Landlord file a contest, which notice shall include copies
of all necessary documentation supporting Tenant’s position that such an appeal is reasonable, and
Landlord, in good faith, shall review such documentation and decide whether to proceed with such a
contest.



     6.4 Rent Adjustments for Building Expenses. Prior to the commencement of each
Operating Year, Landlord shall furnish to Tenant a written statement setting forth Landlord’s
estimate of the amount of Building Expenses for such Operating Year. Tenant shall pay Tenant’s
Proportionate Share of Landlord’s estimated Building Expenses in equal monthly installments, in
advance, as additional rent together with Base Rent. Within one hundred twenty (120) days after
expiration of each Operating Year, Landlord shall certify to Tenant the actual Building Expenses
for such Operating Year (the “Annual Building Expense Statement,” together with the Annual Tax
Statement, the “Annual Statements”), and within thirty (30) days after receipt of such
certification, Tenant shall pay as additional rent, the deficiency if any, in charges payable by
Tenant for such Operating Year. If, at the end of such Operating Year, the total amount paid by
Tenant as Tenant’s Proportionate Share of such charges is greater than the amount required to be
paid for such Operating Year, then, if Tenant is not in default hereunder (after the giving of any
required notices and the expiration of any cure periods), the amount of such excess payment shall
be applied by Landlord to the next succeeding monthly installment of Base Rent due hereunder. If
there are any such excess payments made during the final Operating Year, then, if Tenant is not in
default hereunder (after the giving of any required notices and the expiration of any cure
periods), the amount of such excess will be refunded to Tenant by Landlord within thirty (30) days
after such certification. Supplementing the provisions of the immediately preceding sentence, if
Tenant is in default then Landlord agrees to credit such excess payments against any Base Rent,
additional rent and/or other amounts due from Tenant. In the event the Commencement Date shall be
a day other than January 1, or the date fixed for the expiration of the full Term hereof shall be a
day other than December 31, then, in either such



9









 







event, in applying the provisions of this paragraph with respect to any Operating Year in
which such event occurred, appropriate adjustments shall be made to reflect the result of such
event, taking into consideration the portion of such Operating Year which should have elapsed prior
to the Commencement Date or after the date of such expiration. Tenant’s right to receive the
excess payments shall survive the expiration or earlier termination of this Lease. Tenant
acknowledges that with regard to certain Building Expenses, some tenants may be paying various fees
directly to the service provider (including, without limitation, janitorial services and
electricity charges), in which event the computation of Building Expenses per rentable square foot
for such items shall be determined by using the total rentable square footage of the Building
reduced by the rentable square footage of the tenants who are paying such fees directly to the
service provider. Notwithstanding anything to the contrary set forth above, the parties
acknowledge and agree that during the period between the Phase I Commencement Date and the Phase I
Rent Commencement Date, Tenant shall pay Tenant’s Proportionate Share of Building Expenses for the
Phase I Premises and shall continue to pay Tenant’s Proportionate Share of Building for the Phase I
Premises only until the Phase II Commencement Date. As of the Phase II Commencement Date, Tenant
shall pay Tenant’s Proportionate Share of Building Expenses for the entire Premises.
Notwithstanding the foregoing, during the first three (3) Lease Years, Tenant shall not be
responsible for any Building Expenses related to a Major Repair (as defined herein) of any of the
following: boilers, chillers, air make up units, HVAC infrastructure, parking lot resurfacing,
roof and elevator. For purposes of this Section 6.4.2, “Major Repair” shall constitute any
individual repair, the cost of which exceeds Two Thousand Five Hundred and no/Dollars ($2500.00).
As of the commencement of the fourth Lease Year and for the remainder of the Term, Landlord shall
be entitled to pass through Building Expenses for a Major Repair performed at any time after the
commencement of the fourth Lease Year, provided that such Major Repair is amortized in accordance
with GAAP over its useful life, and the Building Expenses shall only include that portion of the
useful life that falls within the Term. Notwithstanding anything to the contrary set forth above,
a “Major Repair” shall not include routine maintenance of the boilers, chillers, air make up units,
HVAC infrastructure, parking lot resurfacing, roof and elevator, regardless of whether the cost for
such maintenance exceeds $2500, and Landlord shall be entitled to pass through the cost of such
maintenance in Building Expenses at any time during the Term.



     Notwithstanding anything to the contrary set forth in this Section 6, to the extent
any of the Building Expenses are within Landlord’s reasonable control (the “Controllable
Expenses”), the actual Controllable Expenses incurred by Landlord shall not increase by more than
five percent (5%) of the previous calendar year’s Controllable Expenses on a cumulative basis. The
parties agree and acknowledge that the following are non-controllable Building Expenses and shall
not be subject to the foregoing cap: Taxes, insurance, utilities, snow removal and security
expenses (the “Non-Controllable Expenses”). The parties acknowledge that for purposes of this
Section 6.4.2, the Building Expenses shall be computed separately as between the
Controllable Expenses and the Non-Controllable Expenses. The annual statement provided to Tenant
pursuant to this Section 6.4.2 shall include computation for both the Controllable Expenses
and the Non-Controllable Expenses as well as a combined total thereof reflecting Tenant’s
overpayment or underpayment for the applicable calendar year.



     6.5 Right to Audit. If Tenant disputes the amount set forth in the Annual Statements,
Tenant shall have the right, at Tenant’s sole expense, not later than one hundred twenty (120) days
following receipt of the Annual Statements, to cause Landlord’s books and records in respect to the
calendar year which is the subject of the Annual Statement to be audited by a nationally or
regionally recognized independent certified public accountant or other certified public accountant
mutually acceptable to Landlord and Tenant. The audit shall take place at the offices of Landlord
where its books and records are located at a mutually convenient time during Landlord’s regular
business hours. Tenant shall have no right to conduct an audit or to give Landlord notice that it
desires to conduct an audit at any time that there is an uncured Event of Default under the Lease.
The accountant conducting the audit shall be compensated by Tenant on an hourly or flat fee basis
and shall not in any manner be compensated based upon a percentage of overcharges it discovers or
on any other contingency fee basis. No subtenant shall have any right to conduct an audit, and no
assignee shall conduct an audit for any period during which such assignee was not the tenant under
the Lease. Tenant’s right to undertake an audit with respect to any calendar year shall expire one
hundred twenty (120) days after Tenant’s



10









 







receipt of the Annual Statement for such Operating Year, and such Annual Statement shall be
final and binding upon Tenant and shall, as between the parties, be conclusively deemed correct, at
the end of such 120-day period, unless prior thereto Tenant shall have given Landlord written
notice of its intention to audit operating costs for the calendar year which is the subject of the
Annual Statement. If Tenant gives Landlord written notice of its intention to audit Building
Expenses, Tenant must commence such audit within thirty (30) days after such notice is delivered to
Landlord, and the audit must be completed within ninety (90) days after such notice is delivered to
Landlord. If Tenant does not commence and complete the audit within such periods, the Annual
Statement that Tenant elected to audit shall be deemed final and binding upon Tenant and shall, as
between the parties, be conclusively deemed correct. Tenant agrees that the results of any audit
shall be kept strictly confidential by Tenant and shall not be disclosed to any other person or
entity (other than Tenant’s accountants, attorneys and advisors) except as required by law. The
time frames hereunder shall be extended for Landlord delays and force majeure delays. Any
overpayments of Building Expenses or Taxes by Tenant shall be credited or refunded as provided
herein, and any underpayments shall be paid to Landlord. if Tenant’s audit hereunder shows that
the Building Expenses or Taxes so reviewed were overstated by Landlord by more than five percent
(5%), then Landlord shall reimburse Tenant for the actual reasonable out-of-pocket costs and
expenses incurred by Tenant in such audit; provided that the amount of such reimbursement shall be
based on a reasonable hourly rate and reasonable out-of-pocket expenses and not on any contingent
fee. This provision shall survive the termination or expiration of this Lease.



     6.6 Additional Rent Payments. Tenant’s obligation to pay any additional rent accruing
during the Term pursuant to Sections 6.3 and 6.4 hereof shall apply pro rata to the
proportionate part of a calendar year as to Taxes and Building Expenses, in which this Lease begins
or ends, for the portion of each such year during which this Lease is in effect. Such obligation
to make payments of such additional rent shall survive the expiration or sooner termination of the
Term.



     6.7 Payments. All payments or installments of any rent hereunder and all sums
whatsoever due under this Lease (including but not limited to court costs and attorneys’ fees)
shall be deemed rent and shall be paid to Landlord at the address designated by Landlord. If any
amount of Annual Base Rent or additional rent shall remain unpaid for ten (10) calendar days after
such payment becomes due, Tenant shall pay Landlord, without notice or demand, a late charge equal
to the greater of (i) $50 or (ii) five percent (5%) of such overdue amount to partially compensate
Landlord for its administrative costs in connection with such overdue payment; which administrative
costs Tenant expressly acknowledges are reasonable and do not constitute a penalty. In addition,
such overdue amounts shall bear interest at the rate of fifteen percent (15%) per annum (but not
more than the maximum allowable legal rate applicable to Tenant) (the “Default Rate”) until paid.
Notwithstanding the foregoing to the contrary, Landlord shall waive such late charge and interest
with respect to the first two (2) late payments in any twelve (12) month period, provided Tenant
makes the applicable payment within five (5) business days after written notice to Tenant.
Additionally, if any of Tenant’s checks for payment of rent or additional rent are returned to
Landlord for insufficient funds, Tenant shall pay to Landlord as additional rent the greater of (i)
$50.00 or (ii) the amount of actual charges incurred by Landlord, for each such check returned for
insufficient funds, and if two or more of Tenant’s checks in payment of rent or additional rent due
hereunder are returned for insufficient funds in any calendar year, Landlord reserves the right
upon ten (10) days advance notice to Tenant to thereafter require Tenant to pay all rent and
additional rent and other sums whatsoever due under this Lease in cash, by money order or by
certified check or cashier’s check If an attorney is employed to enforce Landlord’s rights under
this Lease, Tenant shall pay all reasonable fees and expenses of such attorney whether or not legal
proceedings are instituted by Landlord. Time is of the essence in this Lease.


7. Requirements of Applicable Law. Landlord warrants that on the Commencement Date, the
Premises shall comply in all material respects with all applicable laws, ordinances, rules and
regulations of governmental authorities having jurisdiction over the Property (“Applicable Laws”).
Tenant, at its sole cost and expense, shall thereafter comply promptly with all Applicable Laws now
in force or which may hereafter be in force, which relate solely to Tenant’s specific use of the
Premises that do not relate to
office buildings generally; provided,


11









 






 however, that Landlord and not Tenant shall correct all
structural defects in the Building necessary to comply with Applicable Laws, and make all repairs,
changes or alterations necessary because the Building was not constructed in compliance with any of
the Applicable Laws.



8. Certificate of Occupancy. Tenant shall not use or occupy the Premises in violation of
any certificate of occupancy, permit, or other governmental consent issued for the Building. If
any governmental authority, after the commencement of the Term, shall contend or declare that the
Premises is being used for a purpose which is in violation of such certificate of occupancy,
permit, or consent, then Tenant shall, upon ten (10) days’ notice from Landlord, immediately
discontinue such use of the Premises. If thereafter the governmental authority asserting such
violation threatens, commences or continues criminal or civil proceedings against Landlord for
Tenant’s failure to discontinue such use, in additional to any and all rights, privileges and
remedies given to Landlord under this Lease for an Event of Default by Tenant herein, Landlord
shall have the right to terminate this Lease forthwith. Tenant shall protect, defend, indemnify
and hold Landlord and the Property harmless of and from any and all liability for any such
violation or violations by Tenant.



9. Contest-Statute, Ordinance. Tenant may, after notice to Landlord, by appropriate
proceedings conducted promptly at Tenant’s own expense in Tenant’s name and whenever necessary in
Landlord’s name, contest in good faith the validity or enforcement of any such statute, ordinance,
law, order, regulation or requirement and may similarly contest any assertion of violation of any
certificate of occupancy, permit, or any consent issued for the Building. Tenant may, pending such
contest, defer compliance therewith if, in the reasonable opinion of counsel for Landlord, such
deferral shall not subject either Landlord or the Premises or the Property (or any part thereof) to
any penalty, fine or forfeiture, and if Tenant shall post a bond with corporate surety approved by
Landlord sufficient, in Landlord’s opinion, fully to indemnify Landlord from loss.



10. Tenant’s Improvements. Tenant, at its option, may make such non-structural
improvements to the Premises as it may deem necessary from time to time, at its sole cost and
expense, without Landlord’s consent (but subject to all other obligations set forth in this
Section 10) and costing less than $25,000 in the aggregate. Tenant shall not make any
alterations, installations, additions or improvements to the Premises in excess of $50,000 or
affecting the structural components of the Building, including but not limited to, the installation
of any fixtures, amenities, equipment, appliances, or other apparatus, without Landlord’s prior
written consent, which consent will not be unreasonably withheld, and then only be contractors or
mechanics approved by Landlord, which approval shall not be unreasonably withheld. All such work,
alterations, installations, additions or improvements shall be done at Tenant’s sole expense, and
at such times and in such manner as Landlord may from time to time designate, if at any point
during the Term, Tenant is not the sole occupant of the Building. Landlord’s consent to and/or
approval of Tenant’s plans and specifications for the aforesaid improvements shall create no
responsibility or liability on the part of Landlord for their completeness, design sufficiency, or
compliance with all laws, rules and regulations of governmental agencies or authorities. Tenant
shall promptly pay for the costs associated with any such alterations or additions, and shall
protect, defend, indemnify and hold harmless Landlord and the Property from and against any and all
liens, costs, damages and expenses incurred by Landlord in connection therewith, including any
reasonable attorneys fees incurred by Landlord, if Landlord shall be joined in any action or
proceeding involving such improvements. Landlord may, at its option, pay sums due in order to
release such liens, in which event any such sums paid by Landlord shall be due to Landlord by
Tenant, as Additional Rent, upon demand. Under no circumstances shall Tenant commence any such
work until Landlord has been provided with certificates evidencing that all the contractors and
subcontractors performing such work have in full force and effect adequate workmen’s compensation
insurance as required by the laws of the State of Colorado, public liability and builders risk
insurance in such amounts and according to terms reasonably satisfactory to Landlord. Landlord
shall at all times have the right to post or keep posted on the Premises, or in the immediate
vicinity thereof, any notices of non-responsibility for any construction, alteration or repair of
the Premises by Tenant, and Tenant hereby agrees to give Landlord at least ten (10) business days
prior notice of Tenant’s plans to commence such work so as to enable Landlord an opportunity to
post such notices. All


12









 






alterations, installations, additions or improvements made by either of the parties
hereto upon the Premises, except movable office furniture and any trade fixtures of Tenant as set
forth on Exhibit “G” attached hereto and made a part hereof (all of which will be removed
by Tenant at the expiration of the Lease Term) put in at the expense of Tenant or Landlord and
other items as mutually agreed upon in writing, shall be the property of Landlord and shall remain
upon and be surrendered with the Premises at the termination of this Lease without molestation or
injury. Upon request by Landlord, such request to be made at the time Tenant requests consent for
the applicable improvement under this Section 10, Tenant, at Tenant’s expense, shall remove
any and all special improvements to the Premises or Common Areas made by or
on behalf of Tenant,
including, without limitation, supplemental HVAC and raised flooring. If Tenant fails to remove any
such items, Landlord shall have the right, but not the obligation, to remove and dispose of such
items, and restore the Premises accordingly and Tenant shall reimburse Landlord for the costs of
such removal, disposal and restoration within thirty (30) days after receipt of an invoice
therefore, together with interest at the Default Rate, which shall accrue from the date the costs
were incurred by Landlord. Notwithstanding the foregoing, Landlord reserves the right to withdraw
a request to remove improvements and to request that such improvements remain upon and be
surrendered with the Premises.



11. Repairs and Maintenance.




     11.1 Tenant’s Care of the Premises and Building. During the Term, Tenant shall:



          (i) keep the interior of the Premises and the fixtures, appurtenances and improvements therein
in good order and condition, including, without limitation, the maintenance, repairs and
replacements of any systems and/or equipment that solely serve the Clean Room, including, without
limitation, all HVAC filters, pumping and electric systems located in or attached to the Clean
Room, or to the extent such systems and/or equipment serve both the Premises and the Clean Room and
would ordinarily be Landlord’s responsibility hereunder, Tenant’s obligations shall only apply to
those portions of the systems and/or equipment that are wholly-contained in the Clean Room;
provided, however, that in no event shall Tenant be responsible for maintaining those items of
equipment for which Landlord has agreed to maintain, as more particularly listed on Exhibit
“H” attached hereto and made a part hereof . Tenant shall engage its own custodial and
janitorial service to perform, at a minimum, the services set forth on Exhibit “I” attached
hereto and made a part hereof. If Landlord determines that Tenant is not providing adequate
custodial or janitorial services to the Premises, Landlord shall give Tenant 30 days’ prior written
notice and opportunity to cure (or a shorter cure period if Landlord reasonably determines that a
shorter time period is warranted to protect the Building and the Property), and thereafter Landlord
shall have the right to engage its own contractors and Tenant shall pay for such costs within
thirty (30) days after receipt of a written invoice from Landlord. Tenant shall deposit its trash
in a dumpster in the Common Areas to be provided by Landlord and the costs to maintain such
dumpster and to remove the trash from the dumpster shall be included within the computation of
Building Expenses;




          (ii) make repairs and replacements to the Premises required because of Tenant’s misuse or
primary negligence, except to the extent that the repairs or replacements are covered by Landlord’s
insurance as required hereunder;




          (iii) repair and replace special equipment or decorative treatments installed by or at
Tenant’s request and that serve the Premises only, except to the extent the repairs or replacements
are needed because of Landlord’s misuse or primary negligence, and are not covered by Tenant’s
insurance as required hereunder;




          (iv) pay for all damage to the Property, the Building and the Common Areas, and their
respective fixtures and appurtenances, as well as all damages sustained by Tenant or occupants of
the Building due to any waste, misuse or neglect of the Premises, its fixtures and appurtenances by
Tenant, except to the extent that the repair of such damage is covered by Landlord’s insurance as
required hereunder to the extent that Landlord actually receives proceeds therefrom; and




          (v) not commit waste.




13









 








     In addition Tenant shall not place a load upon any floor of the Premises exceeding the floor
load per square foot area which such floor was designed to carry and which may be allowed under
Applicable Laws. Landlord reserves the right to reasonably prescribe the weight and position of
all heavy equipment brought onto the Premises and reasonably prescribe any reinforcing required
under the circumstances, all such reinforcing to be at Tenant’s expense.



     11.2 Landlord’s Repairs. Except for the repairs and replacements that Tenant is
required to make pursuant to Section 11.1 above and/or pursuant to Exhibit “J”
attached hereto and made a part hereof, Landlord shall make all other repairs, maintenance and
replacements to the Premises, Common Areas and Building (including Building fixtures and equipment
and including without limitation (a) sidewalks, driveways, lighting, gardening, landscaping,
elevators, service areas, curbs, glass and parking; the exterior and to the structure of the
Building, including, but not limited to, the roof (including water tightness of the Building and
the Premises), walls (including caulking), floors, all Building systems, including without
limitation all plumbing, electrical, lighting and mechanical equipment, fixtures and systems
serving the Premises, the Common Area and the Building, and foundations and landscape maintenance,
and the Building equipment; (b) which are required because of damage or destruction by fire or
other peril covered by the all risk insurance policies, or by reason of acts of God applicable to
the Premises and the Building; (c) which require a capital expenditure; (d) which are required
because of faulty construction or latent defect; (e) which are required in order to comply with any
and all federal, state or local law(s) and regulation(s) now in effect or which may hereafter be in
effect relating to the Premises, the Building, the property and to any systems, facilities,
equipment, components, structures or services therein) as shall be reasonably deemed necessary to
maintain the Building in a condition comparable to other first class office buildings in the
Colorado Springs North I-25 corridor and (f) which are expressly set forth on Exhibit “H”.
        . This maintenance shall include the roof, foundation, exterior walls, interior structural walls,
all structural components, and all systems such as mechanical, electrical, multi-tenant HVAC (if
applicable), and plumbing. The costs associated with such repairs shall be deemed a part of
Building Expenses; provided, however, that costs of all of such repairs which would be considered
capital in nature under generally accepted accounting principles shall be paid by Landlord as a
portion of Building Expenses and amortized in accordance with generally accepted accounting
principles as described in Section 6.2.2.12 above. There shall be no allowance to Tenant
for a diminution of rental value, no abatement of rent, and no liability on the part of Landlord by
reason of inconvenience, annoyance or injury to business arising from Landlord, Tenant or others
making any repairs or performing maintenance as provided for herein. Notwithstanding anything to
the contrary set forth above, the parties acknowledge and agree that Landlord shall maintain,
repair and/or replace the HVAC system as necessary, and shall pass through the costs of such
maintenance or repair to Tenant as additional rent hereunder. Provided that the replacement of the
HVAC system is not caused by Tenant’s misuse hereunder, Landlord shall not pass through the costs
of any replacement of the HVAC system.



     If Landlord fails to make the repairs required under this Section 11.2, and such
failure is not the result of any reason listed in Section 27 herein or the result of any
action or inaction on Tenant’s part, and as a result thereof, Tenant shall be not able to use all
or any portion of the Premises and does not in fact use all or any portion of the Premises for a
period of ten (10) consecutive business days or more after notice thereof to Landlord then, except
as provided herein with respect to casualty, Tenant shall be entitled to abate Base Rent and
additional rent, such abatement commencing as of the eleventh (11th) business day after
Tenant ceased using all or such portion of the Premises and shall continue to be abated until such
time as the applicable repair has been completed.



     11.3 Time for Repairs. Repairs or replacements required pursuant to Section
11.1 and 11.2 above shall be made within a reasonable time (depending on the nature of
the repair or replacement needed — generally no more than fifteen (15) days) after receiving notice
or having actual knowledge of the need for a repair or replacement.



     11.4 Surrender of the Premises. Upon the termination of this Lease, without the need
for prior notice from Landlord, Tenant shall surrender the Premises to Landlord in the same broom
clean condition that the Premises were in on the Commencement Date except for:



14









 





          (i) ordinary wear and tear;




          (ii) damage by the elements, fire, and other casualty unless Tenant would be required to
repair under the provisions of this Lease;




          (iii) damage arising from any cause not required to be repaired or replaced by Tenant; and




          (iv) alterations as permitted by this Lease unless consent was conditioned on their removal.




     On surrender Tenant shall remove from the Premises its personal property, trade fixtures and
any alterations required to be removed pursuant to the terms of this Lease and repair any damage to
the Premises caused by this removal. Any items not removed by Tenant as required above shall be
considered abandoned. Landlord may dispose of abandoned items as Landlord chooses and bill Tenant
for the cost of their disposal.


12. Conduct on Premises. Tenant shall not do, or permit anything to be done in the
Premises, or bring or keep anything therein which shall, in any way, increase the rate of fire
insurance on the Building, or invalidate or conflict with the fire insurance policies on the
Building, fixtures or on property kept therein, or obstruct or interfere with the rights of
Landlord or of other tenants, or in any other way injure or annoy Landlord or the other tenants, or
subject Landlord to any liability for injury to persons or damage to property, or interfere with
the good order of the Building, or conflict with Applicable Laws. Tenant agrees that any increase
of fire insurance premiums on the Building or contents caused by the occupancy of Tenant and any
expense or cost incurred in consequence of negligence or carelessness or the willful action of
Tenant, Tenant’s employees, agents, servants, or invitees shall, as they accrue be added to the
rent heretofore reserved and be paid as a part thereof; and Landlord shall have all the rights and
remedies for the collection of same as are conferred upon Landlord for the collection of rent
provided to be paid pursuant to the terms of this Lease.




13. Insurance.




     13.1 Tenant’s Insurance. Tenant shall keep in force at its own expense, so long as
this Lease remains in effect, (a) commercial general liability insurance, including insurance
against assumed or contractual liability under this Lease, with respect to the Premises, to afford
protection with limits, per person and for each occurrence, of not less than Two Million Dollars
($2,000,000), combined single limit, with respect to bodily injury and death and property damage,
such insurance to provide for only a reasonable deductible, (b) all-risk property and casualty
insurance, including theft, written at replacement cost value and with replacement cost
endorsement, covering all of Tenant’s personal property in the Premises and all improvements and
installed in the Premises by or on behalf of Tenant whether pursuant to the terms of Section
35, Section 10, or otherwise, such insurance to provide for only a reasonable
deductible, (c) if, and to the extent, required by law, workmen’s compensation or similar insurance
offering statutory coverage and containing statutory limits, (d) shall insure all plate and other
interior glass in the Premises for and in the name of Landlord, (e) business interruption insurance
in an amount sufficient to reimburse Tenant for loss of earnings attributable to prevention of
access to the Building or the Premises for a period of at least twelve (12) months and (f)
pollution coverage insurance of not less than One Million Dollars ($1,000,000.00). Such policies
shall be maintained in companies and in form reasonably acceptable to Landlord and shall be written
as primary policy coverage and not contributing with, or in excess of, any coverage which Landlord
shall carry. Tenant shall deposit the policy or policies of such required insurance or
certificates thereof with Landlord prior to the Commencement Date, which policies shall name
Landlord or its designee and, at the request of Landlord, its mortgagees, as additional insured and
shall also contain a provision stating that such policy or policies shall not be canceled except
after thirty (30) days’ written notice to Landlord or its designees. All such policies of
insurance shall be effective as of the date Tenant occupies the Premises and shall be maintained in
force at all times during the Term of this Lease and all other times during which Tenant shall
occupy the Premises. In addition to the foregoing insurance coverage, Tenant shall require any
contractor



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retained by it to perform work on the Premises to carry and maintain, at no expense to Landlord,
during such times as contractor is working in the Premises, a non-deductible (i) comprehensive
general liability insurance policy, including, but not limited to, contractor’s liability coverage,
contractual liability coverage, completed operations coverage, broad form property damage
endorsement and contractor’s protective liability coverage, to afford protection with limits per
person and for each occurrence, of not less than Two Hundred Thousand Dollars ($200,000.00),
combined single limit, with respect to personal injury and death and property damage, such
insurance to provide for no deductible, and (ii) workmen’s compensation insurance or similar
insurance in form and amounts as required by law. In the event of damage to or destruction of the
Premises and the termination of this Lease by Landlord pursuant to Section 18 herein,
Tenant agrees that it shall pay Landlord all of its insurance proceeds relating to improvements
made in the Premises by or on behalf of Tenant whether pursuant to the terms of Section 35,
Section 10, or otherwise. If Tenant fails to comply with its covenants made in this
Section, if such insurance would terminate or if Landlord has reason to believe such insurance is
about to be terminated, Landlord may at its option cause such insurance as it in its sole judgment
deems necessary to be issued, and in such event Tenant agrees to pay promptly upon Landlord’s
demand, as additional rent the premiums for such insurance.



     13.2 Landlord’s Insurance. Landlord shall keep in force at its own expense (a)
contractual and comprehensive general liability insurance, including commercial general liability
and property damage, with a minimum combined single limit of liability of Two Million Dollars
($2,000,000.00) for bodily injuries or death of persons occurring in or about the Building and
Premises, and (b) all-risk property and casualty insurance written at replacement cost value
covering the Building and all of Landlord’s improvements in and about same.



     13.3 Waiver of Subrogation. Each party hereto waives claims arising in any manner in
its favor and against the other party and agrees that neither party hereto shall be liable to the
other party or to any insurance company (by way of subrogation or otherwise) insuring the other
party for any loss or damage to the Building, the Premises or other tangible property, or any
resulting loss of income, or losses under worker’s compensation laws and benefits, or against
liability on or about the Building, even though such loss or damage might have been occasioned by
the negligence of such party, its agents or employees if any such loss or damage is covered by
insurance benefiting the party suffering such loss or damage as was required to be covered by
insurance carried pursuant to this Lease. Landlord shall cause each insurance policy carried by it
insuring against liability on or about the Building or insuring the Premises and the Building or
income resulting therefrom against loss by fire or any of the casualties covered by the all-risk
insurance carried by it hereunder to be written in such a manner as to provide that the insurer
waives all right of recovery by way of subrogation against Tenant in connection with any loss or
damage covered by such policies. Tenant shall cause each insurance policy carried by it insuring
against liability or insuring the Premises (including the contents thereof and Tenant’s
Improvements installed therein by Tenant or on its behalf) against loss by fire or any of the
casualties covered by the all-risk insurance required hereunder to be written in such a manner as
to provide that the insurer waives all right of recovery by way of subrogation against Landlord in
connection with any loss or damage covered by such policies.


14. Rules and Regulations. Tenant shall be bound by the rules and regulations set forth on
the schedule attached hereto as Exhibit “B” and made a part hereof. Landlord shall have the
right, from time to time, to issue additional or amended rules and regulations regarding the use of
the Building, so long as the rules shall be reasonable and non-discriminatory between tenants.
When so issued the same shall be considered a part of this Lease and Tenant covenants that the
additional or amended rules and regulations shall likewise be faithfully observed by Tenant, the
employees of Tenant and all persons invited by Tenant into the Building, provided, that the
additional or amended rules are made applicable to all office tenants similarly situated as Tenant.
Landlord shall not be liable to Tenant for the violation of any of the rules and regulations, or
the breach of any covenant or condition in any lease, by any other tenant in the Building.



15. Mechanics’ Liens. Tenant shall not do or suffer to be done any act, matter or thing
whereby Tenant’s interest in the Premises, or any part thereof, may be encumbered by any mechanics’
lien. Tenant shall discharge, or bond off, within twenty (20)
days after the date of filing, any mechanics’ liens filed against Tenant’s interest in the
Premises, or any part thereof,


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 purporting to be for labor or material furnished or to be furnished
to Tenant. Landlord shall not be liable for any labor or materials furnished or to be furnished to
Tenant upon credit, and no mechanics’ or other lien for labor or materials shall attach to or
affect the reversionary or other estate or interest of Landlord in and to the Premises, or the
Property.



16. Tenant’s Failure to Repair. In the event that Tenant fails after reasonable prior
notice from Landlord, which will be no less than 30 days’ written notice unless such condition
and/or repair, in Landlord’s reasonable discretion, should be performed in a shorter period of
time, to keep the Premises or commence to keep the Premises in a good state of condition and repair
pursuant to Section 11 above, or to do any act or make any payment required under this
Lease or otherwise fails to comply herewith, Landlord may, at its option (but without being obliged
to do so) immediately, or at any time thereafter and without additional notice, perform the same
for the account of Tenant, including the right to enter upon the Premises at all reasonable hours
to make such repairs, or do any act or make any payment or compliance which Tenant has failed to
do, and upon ten (10) days’ written demand, Tenant shall reimburse Landlord for any such expense
incurred by Landlord including but not limited to any costs, damages and counsel fees. Any moneys
expended by Landlord, as aforesaid, shall be deemed additional rent, collectible as such by
Landlord. All rights given to Landlord in this Section shall be in addition to any other right or
remedy of Landlord herein contained.



17. Property — Loss, Damage. Landlord, its agents and employees shall not be liable to
Tenant for (i) any damage or loss of property of Tenant placed in the custody of persons employed
to provide services for or stored in or about the Premises and/or the Building, unless such damage
or loss is the result of the negligence of Landlord, (ii) any injury or damage to persons, property
or the business of Tenant resulting from a latent defect in or material change in the condition of
the Building to the extent such change was not caused by the negligence or willful misconduct of
Landlord and (ii) interference with the light, air, or other incorporeal hereditaments of the
Premises.



18. Destruction — Fire or Other Casualty. In case of partial damage to the Premises by
fire or other casualty insured against by Landlord, Tenant shall give immediate notice thereof to
Landlord, who shall thereupon cause damage to all property owned by it to be repaired with
reasonable speed at expense of Landlord, to the extent of insurance proceeds actually received by
Landlord, due allowance being made for reasonable delay which may arise by reason of adjustment of
loss under insurance policies on the part of Landlord and/or Tenant, and for reasonable delay on
account of “labor troubles” or any other cause beyond Landlord’s control, and to the extent that
the Premises are rendered untenantable the rent shall proportionately abate from the date of such
casualty, provided the damage above mentioned occurred without the fault or neglect of Tenant,
Tenant’s servants, employees, agents or invitees. If such partial damage is due to the fault or
neglect of Tenant, Tenant’s servants, employees, agents or invitees, the damage shall be repaired
by Landlord to the extent of Landlord’s insurance coverage, but there shall be no apportionment or
abatement of rent. In the event the damage shall be so extensive to the whole Building as to
render it uneconomical, in Landlord’s opinion, to restore for its present uses and Landlord shall
decide not to repair or rebuild the Building, this Lease, at the option of Landlord, shall be
terminated upon notice to Tenant and the rent shall, in such event, be paid to or adjusted as of
the date of such damage, and the terms of this Lease shall expire by lapse of time and conditional
limitation upon the third day after such notice is mailed, and Tenant shall thereupon vacate the
Premises and surrender the same to Landlord, but no such termination shall release Tenant from any
liability to Landlord arising from such damage or from any breach of the obligations imposed on
Tenant hereunder, or from any obligations accrued hereunder prior to such termination.




     In addition, in the event that (a) Landlord estimates that its repairs will take more than two
hundred seventy (270) days for any areas of the Premises, or (b) Tenant is actually deprived of the
use of all or any substantial portion of the Premises for a period in excess of two hundred seventy
(270) days for any areas of the Premises, Tenant shall have the right, by written notice to
Landlord to terminate the Lease as of the date of the casualty, provided that Tenant gives its
within thirty (30) days after receipt of Landlord’s notice of the estimated time to complete the
restoration or repair in the case of subparagraph (a) above, or within thirty (30) days after
failing to meet the deadline set forth in subparagraph (b) above.



17









 




19. Eminent Domain. If (1) the whole or more than fifty percent (50%) of the floor area of
the Premises shall be taken or condemned by eminent domain for any public or quasi-public use or
purpose, and either party shall elect, by giving notice to the other, or (2) more than twenty-five
percent (25%) of the floor area of the Building shall be so taken, and Landlord shall elect, in its
sole discretion, by giving notice to Tenant, any notice to be given not more than sixty (60) days
after the date on which title shall vest in such condemnation proceeding, to terminate this Lease,
then, in either such event, the Term of this Lease shall cease and terminate as of the date of
title vesting. In case of any taking or condemnation, whether or not the Term of this Lease shall
cease and terminate, the entire award shall be the property of Landlord, and Tenant hereby assigns
to Landlord all of its right, title and interest in and to any such award, except that Tenant shall
be entitled to claim, prove and receive in the proceedings such awards as may be allowed for
Tenant’s trade fixtures, , moving expenses, loss of profit and fixtures and other alterations and
equipment installed by it which shall not, under the terms of this Lease, be or become the property
of Landlord at the termination hereof, but only if such awards shall be made by condemnation, court
or other authority in addition to, and be stated separately from, the award made by it for the
Property or part thereof so taken.



20. Assignment. So long as no Event of Default on the part of Tenant is pending, and so
long as no other failure by Tenant to perform or observe any covenant or agreement under this Lease
exists which could, with the giving of notice and/or the passage of time, become an Event of
Default, then after the giving of all required notices and the expiration of all cure periods,
Landlord shall not unreasonably withhold its consent to an assignment of this Lease or sublease of
the Premises for any of the then remaining portion of the unexpired Term provided: (i) the net
assets of the assignee shall not be less than Twenty Million and no/Dollars ($20,000,000.00)
provided that the net assets of Tenant at the time of the proposed assignment are equal to or
greater than the net assets of Tenant at the time of the signing of this Lease; (ii) the net assets
of the assignee are not less than eighty percent (80%) of the net assets of Tenant at the time of
the signing of this Lease if Tenant’s net assets have decreased since the original date of this
Lease, (iii) the sublessee has sufficient net worth to satisfy its obligations under the sublease;
(iv) in the event of an assignment, such assignee shall assume in writing all of Tenant’s
obligations under this Lease; (v) in the event of a sublease, such sublease shall in all respects
be subject to and in conformance with the terms of this Lease; and (vi) in all events Tenant
continues to remain liable on this Lease for the performance of all terms, including but not
limited to, payment of all rent due hereunder. Landlord and Tenant acknowledge and agree that it
shall not be unreasonable for Landlord to withhold its consent to an assignment if in Landlord’s
reasonable business judgment, the assignee lacks sufficient business experience or net worth to
successfully operate its business within the Premises in accordance with the terms, covenants and
conditions of this Lease. If this Lease be assigned, or if the Premises or any part thereof be
sublet or occupied by anybody other than Tenant, Landlord may, after an Event of Default by Tenant,
collect rent from the assignee, subtenant or occupant and apply the net amount collected to the
rent herein reserved, but no such collection shall be deemed a waiver of this covenant, or the
acceptance of the assignee, subtenant or occupant as tenant, or a release of Tenant from the
further observance and performance by Tenant of the covenants herein contained. In addition, in
the event of a proposed assignment, Landlord shall have the right, but not the obligation, to
terminate this Lease by giving Tenant thirty (30) days’ advance notice (“Landlord’s Termination
Notice”); provided, however, that Tenant shall have the right to abrogate Landlord’s Termination
Notice by notifying Landlord within ten (10) days after receipt of Landlord’s Termination Notice of
the withdrawal of the request for consent to the assignment. For purposes of the foregoing, a
transfer by operation of law or transfer of a controlling interest in Tenant as same exists as of
the date hereof, shall be deemed to be an assignment of this Lease; however, the foregoing shall
not apply to changes in ownership on a public exchange. No assignment or sublease, regardless of
whether Landlord’s consent has been granted or withheld, shall be deemed to release Tenant from any
of its obligations nor shall the same be deemed to release any person guaranteeing the obligations
of Tenant hereunder from their obligations as guarantor. Landlord’s acceptance of any name
submitted by Tenant, an agent of Tenant, or anyone acting by, through or under Tenant for the
purpose of being listed on the Building directory will not be deemed, nor will it substitute for,
Landlord’s consent, as required by this
Lease, to any sublease, assignment, or other occupancy of the Premises by anyone other than Tenant
or Tenant’s employees. Fifty percent (50%) of any profit or additional consideration or rent in
excess of the Annual Base Rent or additional rent


18









 






payable by Tenant hereunder which is payable to
Tenant as a result of any assignment or subletting, net of Tenant’s reasonable and actual out of
pocket third party transaction costs (including without limitation brokerage fees and tenant
improvement costs), shall be paid to Landlord as additional rent when received by Tenant. All the
foregoing notwithstanding, Tenant shall not enter into any lease, sublease, license, concession or
other agreement for the use, occupancy or utilization of the Premises or any portion thereof, which
provides for a rental or other payment for such use, occupancy or utilization based in whole or in
part on the income or profits derived by any person or entity from the property leased, used,
occupied or utilized. Any such purported lease, sublease, license, concession or other agreement
shall be absolutely void and ineffective as a conveyance of any right or interest in the
possession, use or occupancy of any part of the Premises. Any consent by Landlord hereunder shall
not constitute a waiver of strict future compliance by Tenant with the provisions of this
Section 20. In no event shall the proposed assignee or sublessee be occupying other space
in the Building as a direct tenant (and not as a sublessee or assignee of Tenant), nor shall it be
a prospective tenant then negotiating with Landlord.




     Notwithstanding the foregoing, provided that Tenant maintains the same or better net worth,
Tenant shall have the right, without Landlord’s consent, to (i) assign the Lease or sublease the
Premises or any portion thereof (however, Tenant shall endeavor to provide ten (10) days’ prior
written notice thereof along with a true and complete copy of the sublease or assignment document)
to any subsidiary or affiliate of Tenant or (ii) assign the Lease or sublease the Premises in the
event of a merger or a sale of all or substantially all of the Tenant’s assets, and in any event
shall notify Landlord in writing within thirty (30) days of the effective date of such assignment
or sublease. For the purposes hereof, “affiliate” shall mean an entity or individual that
controls, is controlled by or is under the common control with Tenant. Tenant shall remain liable
under the terms hereof if Tenant exercises its rights under this paragraph to the extent it
survives such corporate event.


21. Events of Default . Any one or more of the following events shall constitute an “Event
of Default” hereunder, at Landlord’s election:




     (a) the sale of Tenant’s interest in the Premises under attachment, execution or similar legal
process or, the adjudication of Tenant as a bankrupt or insolvent, unless such adjudication is
vacated within sixty (60) days;



     (b) the filing of a voluntary petition proposing the adjudication of Tenant (or any guarantor
of Tenant’s obligations hereunder) as a bankrupt or insolvent, or the reorganization of Tenant (or
any such guarantor), or an arrangement by Tenant (or any such guarantor) with its creditors,
whether pursuant to the Federal Bankruptcy Code or any similar federal or state proceeding, unless
such petition is filed by a party other than Tenant (or any such guarantor) and is withdrawn or
dismissed within sixty (60) days after the date of its filing;



     (c) the admission, in writing, by Tenant (or any such guarantor) of its inability to pay its
debts when due;



     (d) the appointment of a receiver or trustee for the business or property of Tenant (or any
such guarantor), unless such appointment is vacated within sixty (60) days of its entry;



     (e) the making by Tenant (or any such guarantor) of an assignment for the benefit of its
creditors, or if, in any other manner, Tenant’s interest in this Lease shall pass to another by
operation of law;



     (f) the failure of Tenant to pay any Annual Base Rent, additional rent or any other rent or
sums of money owing hereunder when due, where such failure continues for a period of ten (10) days
after receipt of notice that the same is past due hereunder;



     (g) if Tenant fails to pay any Annual Base Rent, additional rent or any other rent or sums of
money owing hereunder when due after Landlord shall have given Tenant notice with respect to such
non-payment twice in any twelve (12) month period as provided in subsection (f) above; and



19









 





     (h) the default by Tenant in the performance or observance of any covenant or agreement of
this Lease (other than a default involving the payment of money), which default is not cured within
thirty (30) days after the giving of notice thereof by Landlord, unless such default is of such
nature that it cannot be cured within such thirty (30) day period, in which case no Event of
Default shall occur so long as Tenant shall commence the curing of the default within such thirty
(30) day period and shall thereafter diligently prosecute the curing of same to completion.


22. Remedies; Bankruptcy of Tenant Upon the occurrence and continuance of an Event of
Default, Landlord, with such notice to Tenant as provided for by law or as expressly provided for
herein, may do any one or more of the following:




     (a) perform, on behalf of and at the expense of Tenant, any obligation of Tenant under this
Lease which Tenant has failed to perform and of which Landlord shall have given Tenant notice, the
cost of which performance by Landlord, together, with interest thereon at the Default Rate from the
date of such expenditure, shall be deemed additional rent and shall be payable by Tenant to
Landlord upon demand;



     (b) elect to terminate this Lease and the tenancy created hereby by giving notice of such
election to Tenant, in which event Tenant shall be liable, in addition to any other amounts due up
until the time of such termination, for Annual Base Rent, additional rent and all other rent or
sums of money owing hereunder that otherwise would have been payable by Tenant during the remainder
of the Term had there been no Event of Default, and on notice reenter the Premises, by summary
proceedings or otherwise, and remove Tenant and all other persons and property from the Premises,
and store such property in a public warehouse or elsewhere at the cost and for the account of
Tenant, without resort to legal process and without Landlord being deemed guilty of trespass or
becoming liable for any loss or damage occasioned thereby; and also the right, but not the
obligation, to re-let the Premises for any unexpired balance of the Term, and collect the rent
therefor. In addition, Landlord shall also recover from Tenant any rent exemption, deferred rent
or excused rent which Landlord may have granted to Tenant as an inducement to Tenant’s execution
hereof, it being understood that Landlord’s granting of such rent holiday is in consideration of
Tenant’s compliance with the terms and provisions hereof. In the event of such reletting by
Landlord, the reletting shall be on such term or terms (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, may determine, and the proceeds that may be
collected from the same, after deducting all of Landlord’s reasonable expenses in connection with
such reletting, including, but not limited to, all repossession costs, brokerage commissions, legal
expenses, attorneys’ fees, expenses of employees, alteration and repair costs and expenses of
preparation for such reletting, shall be applied upon Tenant’s rental obligation as set forth in
this Lease for the unexpired portion of the Term. Tenant shall be liable for any balance that may
be due under this Lease, although Tenant shall have no further right of possession of the Premises;



     (c) at Landlord’s discretion without further demand or notice or resort to judicial
proceedings, to terminate Tenant’s right to possession of the Premises, to reenter and take
possession of the Premises or any part thereof without terminating the Lease, and repossess the
same as Landlord’s former estate and expel Tenant and those claiming through or under Tenant, and
remove the effects of both or either, using such force for such purpose as may be necessary,
without being liable for prosecution thereof, without being deemed guilty any manner of trespass,
and without prejudice to any remedies for arrears of Annual Base Rent, additional rent or any other
rent or sums of money owing hereunder. No such reentry or taking of possession of the Premises by
Landlord shall be construed as an election on Landlord’s part to terminate this Lease, unless a
written notice of termination, specifically stating Landlord’s intention to terminate, shall be
given to Tenant. Should Landlord elect to reenter as provided above, or should Landlord take
possession pursuant to legal proceedings or pursuant to any notice
provided by law, then such repossession shall not relieve Tenant of its obligations and liability
under this Lease, all of which shall survive such repossession. Following such repossession,
Landlord may, from time to time, without terminating this Lease, relet the Premises or any part
thereof in Landlord or Tenant’s name, for such term or terms (which may be greater or less than



20









 







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, may determine, and Landlord may collect and receive
the rents therefore. In the event that Landlord elects to take possession as provided in this
subparagraph (d), Tenant shall pay to Landlord (i) the Annual Base Rent, additional rent and other
rent or sums of money owing hereunder which would have been payable hereunder if such repossession
had not occurred, less (ii) the net proceeds, if any, of any reletting of the Premises after
deducting all of Landlord’s reasonable expenses in connection with such reletting, including, but
not limited to, all repossession costs, brokerage commissions, legal expenses, attorneys’ fees,
expenses of employees, alteration and repair costs and expenses of preparation for such reletting.
Tenant shall pay such amounts to Landlord monthly on the day on which Annual Base Rent and
additional rent would have been payable hereunder if possession had not been retaken. In addition,
Landlord shall also recover from Tenant any rent exemption, deferred rent or excused rent which
Landlord may have granted to Tenant as an inducement to Tenant’s execution hereof, it being
understood that Landlord’s granting of such rent holiday is in consideration of Tenant’s compliance
with the terms and provisions hereof. Landlord reserves the right following any such reentry
and/or reletting to exercise its right to terminate the Lease under the provisions of subparagraph
(b) above by giving Tenant such written notice, in which event the Lease will terminate as
specified in such notice; and



     (d) sue Tenant for any Annual Base Rent, additional rent or any other rent or sums of money
owing hereunder, or exercise any other legal or equitable right or remedy which it may have at law
or in equity.



     Notwithstanding the provisions of clause (a) above and regardless of whether an Event of
Default shall have occurred, Landlord may exercise the remedy described in clause (a) without any
notice to Tenant if Landlord, in its good faith judgment, believes it would be materially injured
by the failure to take rapid action, or if the unperformed obligation of Tenant constitutes an
emergency.



     TO THE EXTENT PERMITTED BY LAW, TENANT HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS OF
REDEMPTION, GRANTED BY OR UNDER ANY PRESENT OR FUTURE LAWS IN THE EVENT OF TENANT’S BEING EVICTED
OR DISPOSSESSED FOR ANY CAUSE, OR IN THE EVENT OF LANDLORD’S OBTAINING POSSESSION OF THE PREMISES,
BY REASON OF THE VIOLATION BY TENANT OF ANY OF THE COVENANTS AND CONDITIONS OF THIS LEASE, OR
OTHERWISE. LANDLORD AND TENANT HEREBY EXPRESSLY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER PARTY ON ANY AND EVERY MATTER,
DIRECTLY OR INDIRECTLY ARISING OUT OF OR WITH RESPECT TO THIS LEASE, INCLUDING, WITHOUT LIMITATION,
THE RELATIONSHIP OF LANDLORD AND TENANT, THE USE AND OCCUPANCY BY TENANT OF THE PREMISES, ANY
STATUTORY REMEDY AND/OR CLAIM OF INJURY OR DAMAGE REGARDING THIS LEASE.



     Any costs and expenses incurred by Landlord (including, without limitation, reasonable
attorneys’ fees) in enforcing any of its rights or remedies under this Lease shall be deemed to be
additional rent and shall be repaid to Landlord by Tenant upon demand.



     Notwithstanding any of the other provisions of this Lease, in the event Tenant shall
voluntarily or involuntarily come under the jurisdiction of the Federal Bankruptcy Code and
thereafter Tenant or its trustee in bankruptcy, under the authority of and pursuant to applicable
provisions thereof, shall have the power and so using same determine to assign this Lease, Tenant
agrees that (i) Tenant or its trustee shall provide to Landlord sufficient information enabling it
to independently determine whether Landlord will incur actual and substantial detriment by reason
of such assignment and (ii) “adequate assurance of future performance”
under this Lease, as that term is generally defined under the Federal Bankruptcy Code, shall be
provided to Landlord by Tenant and its assignee as a condition of the assignment.



     Notwithstanding anything to the contrary set forth above, Landlord hereby agrees to use its
commercially reasonably efforts to relet the Premises, or a portion thereof, to one or more



21









 







substitute tenants, whether for a greater or lesser term than that specified herein for Tenant, and
at commercially reasonable rates then applicable in the Colorado Springs North I-25 corridor.
Notwithstanding the foregoing, Tenant agrees that any such duty to mitigate shall be satisfied, and
Landlord shall be deemed to have used commercially reasonable efforts to fill the Premises by doing
the following: (a) advising Landlord’s leasing agent, if any, of the availability of the Premises;
(b) advising at least one outside commercial brokerage entity of the availability of the Premises;
and (c) offering to such leasing agents and outside commercial brokerage entities the usual and
customary commissions that landlords offer for similar properties in Colorado Springs North I-25
corridor; provided, however, that Landlord shall not be obligated to solicit or entertain
negotiations with any other prospective tenant for the Premises while other premises in the
Colorado Springs North I-25 corridor or other properties within a five (5) mile vicinity of the
Property (under the ownership or control of Landlord and/or its affiliates) suitable for that
prospective tenant’s use are (or soon will be) available. In addition, Tenant agrees that Landlord
shall be deemed to be acting reasonably (and Tenant waives any right to claim otherwise) if
Landlord enters into a substitute lease(s) which specifies Base Rent which is seventy-five percent
(75%) or more than the then current prevailing market rent. If Landlord receives any payments from
the reletting of the Premises and is required to mitigate damages (despite the intent of the
parties hereunder), any such payment shall first be applied to any costs or expenses incurred by
Landlord as a result of the Event of Default.



     Notwithstanding anything to the contrary contained herein, Tenant shall be considered in
“Habitual Default” of this Lease upon (a) Tenant’s failure, on three (3) or more occasions during
any twelve month period to pay when due any installment of Annual Base Rent, additional rent or any
other sum required by the terms of this Lease, or upon (b) Tenant’s failure, on three (3) or more
occasions during any twelve month period to comply with any term, covenant or condition of this
Lease after notice by Landlord to Tenant. Upon the occurrence of an event of Habitual Default on
the part of Tenant, then without limiting any other rights or remedies to which Landlord may be
entitled as a result of such Habitual Default or any other Event of Default by Tenant hereunder:
(i) Tenant shall immediately be deemed to have relinquished any and all options or rights granted,
or to be granted, to Tenant under the terms of this Lease or any amendment hereto (including,
without limitation, any rights granted under Sections 3.3 and 53 of this Lease, rights to
terminate, rights of first offer or rights of first refusal); and (ii) in the event of a monetary
event of Habitual Default, Tenant shall thereafter pay all Annual Base Rent and additional rent and
other sums whatsoever due under this Lease in cash, by money order or by certified check or
cashier’s check. Notwithstanding the foregoing, in the event there is a bona fide dispute between
Landlord and Tenant with respect to whether there has been a nonmonetary default, such default
shall not be used as one of the three defaults for purposes of determining that Tenant is in
Habitual Default unless and until such dispute is resolved with a finding that Tenant had in fact
committed a nonmonetary default.


23. Services and Utilities. Landlord shall provide the following listed services and
utilities, namely:




     (a) heating, ventilation, and air conditioning (“HVAC”) for the Premises in accordance with
Section 11 of this Lease;



     (b) electric energy in accordance with Section 24 following;



     (c) hot and cold water sufficient for drinking, lavatory toilet and ordinary cleaning purposes
from fixtures either within the Premises (if provided pursuant to this Lease) or on the floor on
which the Premises are located; and



     (d) maintenance of Common Areas in a manner comparable to other first class suburban office
buildings in the Colorado Springs North I-25 corridor.



     Landlord reserves the right to stop service of the HVAC, elevator, plumbing and electric
systems, when necessary, by reason of accident, or emergency, or for repairs, alterations,
replacements, or improvements, which in the judgment of Landlord are desirable or necessary to be
made, until the repairs, alterations, replacements, or improvements shall have been completed.
Landlord shall have no responsibility or liability for failure to supply HVAC,



22









 







elevator, plumbing,
cleaning, and electric service, during the period when prevented from so doing by laws, orders, or
regulations of any Federal, State, County or Municipal authority or by strikes, accidents or by any
other cause whatsoever beyond Landlord’s control. Landlord’s obligations to supply HVAC are
subject to applicable laws and regulations as to energy conservation and other such restrictions.
In the event that Tenant should require supplemental HVAC for the Premises, any maintenance repair
and/or replacement required for such supplemental service shall be performed by Landlord but the
cost of such maintenance repair and/or replacement (including labor and materials) shall be paid by
Tenant as additional rent.



     Landlord warrants to Tenant that electricity, water, sanitary and drainage sewers, telephone
and natural gas will be available to the Premises throughout the term of this Lease.
Notwithstanding anything in this Lease to the contrary, if any such utility service becomes
unavailable or interrupted for more than ten (10) consecutive business days after notice thereof to
Landlord and such unavailability or interruption is not the result of any reason listed in
Section 27 herein or the fault of Tenant or its agents, servants, employees or invitees or
(b), and as a result thereof, Tenant shall be not able to use all or such portion of the Premises
and does not in fact use all or such portion of the Premises for such 10-business day period, then
Tenant shall be entitled to an abatement of rent commencing with the eleventh (11th)
business day that the same are unavailable; provided, however, that Tenant shall not be entitled to
any abatement of rent under the foregoing due to unavailability (i) caused directly or indirectly
by any act or omission of Tenant or any of Tenant’s servants, employees, agents, contractors,
visitors or licensees, (ii) where Tenant makes a decoration, alteration, improvement or addition
which requires interruption of services, or (iii) where the service in question is one which Tenant
is obligated to furnish or pay for under the provisions of this Lease.


24. Electric Current. Landlord has supplied or will supply the Premises with the necessary
lines to provide electric service to the Premises for normal office and data center operations, as
well as separate meters so that Tenant’s consumption of electric power can be separately measured
and charged to Tenant. Tenant shall pay all charges (including meter installation and adjustment)
for electric and similar utilities or services so supplied directly to the utility company
supplying same when due and before penalties or late charges on same shall accrue. Tenant shall not
at any time overburden or exceed the capacity of the mains, feeders, ducts, conduits, or other
facilities by which electric and similar utilities are supplied to, distributed in or serve the
Premises. If Tenant desires to install any equipment which shall require additional electric or
similar facilities of a greater capacity than as provided by Landlord, such installation shall be
subject to Landlord’s prior written approval of Tenant’s plans and specifications therefor, which
approval shall not be unreasonably withheld. If such installation is approved by Landlord, all
costs for providing such additional electrical and similar facilities shall be paid by Tenant.



25. Telephone and Telecommunications. Landlord has arranged for the installation of
telephone service within the Building to the ground floor telephone utility closet and conduit to
the ground floor telephone and electrical riser closets. Tenant shall be responsible for contacting
the utility company supplying the telephone service and arranging to have such telephone facilities
as it may desire to be extended and put into operation in the Premises, including without
limitation, obtaining a low voltage permit for phone and data wiring. Tenant acknowledges and
agrees that all telephone and telecommunications services desired by Tenant shall be ordered and
utilized at the sole expense of Tenant. All costs related to installation and the provision of
such service shall be borne and paid for directly by Tenant. Upon request by Landlord, Tenant, at
Tenant’s expense, shall remove the telephone facilities at the expiration or sooner termination of
the Term. Tenant shall obtain the requisite permit and complete the ceiling work in cooperation
with Landlord in order not to interfere with or delay the completion of the Tenant Improvements by
Landlord pursuant to Section 35, including, without limitation, the closing of the ceiling
and the carpet installation, if applicable. Landlord will allow Tenant access for wiring, including
electric, data and telecom,
within the Building’s public areas and designated chases, but will not guarantee access of the
wiring through another tenant’s space. Tenant, at Tenant’s expense, shall be responsible for the
relocation and its associated costs, if requested, of any data, telecom or electrical wiring that
runs through another tenant’s space, including the plenum area or otherwise.




23









 








     In the event Tenant wishes to utilize the services of a telephone or telecommunications
provider whose equipment is not servicing the Building at such time Tenant wishes to install its
telecommunications equipment serving the Premises (“Provider”), no such Provider shall be permitted
to install its lines or other equipment without first securing the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Prior to the commencement of any work
in or about the Building by the Provider, the Provider shall agree to abide by such rules and
regulations, job site rules, and such other requirements as reasonably determined by Landlord to be
necessary to protect the interest of the Building and Property, the other tenants and occupants of
the Building and Landlord, including, without limitation, providing security in such form and
amount as reasonably determined by Landlord. Each Provider must be duly licensed, insured and
reputable. Landlord shall incur no expense whatsoever with respect to any aspect of Provider’s
provision of its services, including without limitation, the costs of installation, materials and
service.



     In addition, Landlord reserves exclusively to itself and its successors and assigns the right
to install, operate, maintain, repair, replace and remove fiber optic cable and conduit and
associated equipment and appurtenances within the Building and the Premises so as to provide
telecommunications service to and for the benefit of tenants and other occupants of the Building.


26. Acceptance of Premises. Tenant shall have reasonable opportunity to examine the
Premises to determine the condition thereof. Tenant shall not interfere with Landlord’s work if it
enters the Premises at any time prior to the Commencement Date. Upon taking possession of the
Premises, Tenant shall be deemed to have accepted same as being satisfactory and in the condition
called for hereunder, except for punch list items previously noted to Landlord and latent defects.
Landlord, at its sole cost and expense will promptly remedy any latent defects within a reasonable
time after discovery.



27. Inability to Perform. Landlord and Tenant will be allowed a reasonable time for delay,
except with respect to any obligations for the payment of money, due to strikes or labor troubles
or any outside cause whatsoever including, but not limited to, governmental preemption in
connection with a National Emergency, or by reason of any rule, order or regulation of any
department or subdivision of any government agency or by reason of the conditions of supply and
demand which have been or are affected by war or other emergency. Similarly, Landlord shall not be
liable for any interference with any services supplied to Tenant by others if such interference is
caused by any of the reasons listed in this Section. Nothing contained in this Section shall be
deemed to impose any obligation on Landlord not expressly imposed by other sections of this Lease.



28. No Waivers. The failure of Landlord to insist, in any one or more instances, upon a
strict performance of any of the covenants of this Lease, or to exercise any option herein
contained, shall not be construed as a waiver, or a relinquishment for the future, of such covenant
or option, but the same shall continue and remain in full force and effect. The receipt by
Landlord of rent, with knowledge of the breach of any covenant hereof, shall not be deemed a waiver
of such breach, and no waiver by Landlord of any provision hereof shall be deemed to have been made
unless expressed in writing and signed by Landlord.



29. Access to Premises and Change in Services. Landlord shall have the right, without
abatement of rent, to enter the Premises at any hour to examine the same, or to make such repairs
and alterations as Landlord shall deem necessary for the safety and preservation of the Building,
and also to exhibit the Premises to be let; provided, however, that except in the case of emergency
such entry shall only be after notice first given to Tenant. If, during the last month of the
Term, Tenant shall have removed all or substantially all of Tenant’s property therefrom, Landlord
may immediately enter and alter, renovate and redecorate the Premises, without elimination or
abatement of rent, or incurring liability to Tenant for any compensation, and such acts shall have
no effect upon this Lease.
Nothing herein contained, however, shall be deemed or construed to impose upon Landlord any
obligation, responsibility or liability whatsoever, for the care, supervision or repair, of the
Building or any part thereof, other than as herein elsewhere expressly provided. Landlord shall
also have the right at any time, without the same constituting an actual or constructive eviction
and without incurring any liability to Tenant therefor, to reasonably change the arrangement and/or
location of entrances or passageways, doors and


24









 






doorways, and corridors, stairs, toilets,
elevators, or other public parts of the Building, and to change the name by which the Building is
commonly known and/or its mailing address.



30. Estoppel Certificates. Tenant agrees, at any time and from time to time, upon not less
than ten (10) days’ prior request by Landlord to execute, acknowledge and deliver to Landlord an
estoppel certificate substantially in the form attached hereto as Exhibit “D” or such other
reasonable form requested by Landlord which certifies that this Lease is unmodified and in full
force (or if there have been modifications, that the same is in full force and effect as modified
and stating the modifications) and the dates through which the rent and other charges have been
paid in advance, if any, and stating whether or not to the best knowledge of the signer of such
certificate Landlord is in default in performance of any covenant, agreement or condition contained
in this Lease and, if so, specifying each such default of which the signer may have knowledge, it
being intended that any such statement delivered hereunder may be relied upon by third parties not
a party to this Lease. Tenant expressly agrees that the thirty (30) day cure period concerning
Tenant’s failure to perform or observe any covenant or agreement of this Lease (other than a
default involving the payment of money) as set forth in Section 21, subsection (i) above
shall not apply to Tenant’s obligation to timely provide the foregoing estoppel certificate to
Landlord, and that Tenant shall be deemed to have committed an Event of Default if such estoppel
certificate is not provided to Landlord within an additional five (5) days’ written notice of
non-delivery.



31. Subordination. Tenant accepts this Lease, and the tenancy created hereunder, subject
and subordinate to any mortgages, overleases, leasehold mortgages or other security interests now
or hereafter a lien upon or affecting the Building or the Property or any part thereof. Tenant
shall, at any time hereafter, within ten (10) days after request from Landlord, execute a
Subordination, Non-Disturbance Agreement in a form reasonably requested by any instruments or
leases or other documents that may be required by any mortgage or mortgagee or overlandlord (herein
a “Mortgagee”) for the purpose of subjecting or subordinating this Lease and the tenancy created
hereunder to the lien of any such mortgage or mortgages or underlying lease. Tenant expressly
agrees that the thirty (30) day cure period concerning Tenant’s failure to perform or observe any
covenant or agreement of this Lease (other than a default involving the payment of money) as set
forth in Section 21, subsection (i) above shall not apply to Tenant’s obligation to timely
provide the foregoing Subordination, Non-Disturbance Agreement to Landlord, and that Tenant shall
be deemed to have committed an Event of Default if such Subordination, Non-Disturbance Agreement is
not provided to Landlord within an additional five (5) day period after written notice of
non-delivery. Landlord shall use commercially reasonable efforts to obtain an SNDA from any future
Mortgagee on a form reasonably acceptable to both Mortgagee and Tenant.



32. Attornment. Tenant agrees that upon any termination of Landlord’s interest in the
Premises, Tenant shall, upon request, attorn to the person or organization then holding title to
the reversion of the Premises (the “Successor”) and to all subsequent Successors, and shall pay to
the Successor all of the rents and other monies required to be paid by Tenant hereunder and perform
all of the other terms, covenants, conditions and obligations in this Lease contained; provided,
however, that if in connection with such attornment Tenant shall so request from such Successor in
writing, such Successor shall execute and deliver to Tenant an instrument wherein such Successor
agrees that as long as Tenant performs all of the terms, covenants and conditions of this Lease, on
Tenant’s part to be performed, Tenant’s possession under the provisions of this Lease shall not be
disturbed by such Successor. In the event that the Mortgagee succeeds to the interest of Landlord
hereunder and is advised by its counsel that all or any portion of the Annual Base Rent or
additional rent payable by Tenant hereunder is or may be deemed to be unrelated business income
within the meaning of the United States Internal Revenue Code or regulations issued thereunder,
Mortgagee, as Landlord, shall have the right at any time, from time to time, to notify Tenant in
writing of the
required changes to the Lease. Tenant shall execute all documents necessary to effect any such
amendment within ten (10) days after written request from Mortgagee, as landlord, provided that in
no event shall such amendment increase Tenant’s payment obligations or other liability under this
Lease or reduce Landlord’s obligations hereunder.



33. Notices. All notices and other communications to be made hereunder shall be in writing
and shall be delivered to the addresses set forth below by any of the following means: (a)


25









 






personal service or receipted courier service; (b) telecopying (if confirmed in writing sent by the methods
specified in clauses (a), (c) or (d) of this Section), (c) registered or certified first class
mail, return receipt requested, or (d) nationally-recognized overnight delivery service. Such
addresses may be changed by notice to the other parties given in the same manner as provided above.
Any notice or other communication sent pursuant to clause (a) or (b) hereof shall be deemed
received upon such personal service or upon dispatch by electronic means, if sent pursuant to
subsection (c) shall be deemed received five (5) days following deposit in the mail and/or if sent
pursuant to subsection (d) shall be deemed received the next succeeding business day following
deposit with such nationally recognized overnight delivery service.




	 	 	 
	If to Landlord:

	 	 9965 FEDERAL DRIVE, LLC
	 

	 	c/o Corporate Office Properties, L.P.
	 

	 	 6711 Columbia Gateway Drive, Suite 300
	 

	 	Columbia, Maryland 21046
	 

	 	Attn: General Counsel
	 

	 	Telecopier: 443-285-7650
	 
	 	 
	If to Tenant:

	 	To Tenant’s Notice Address.





Any party may designate a change of address by notice to the above parties, given at least ten (10)
days before such change of address is to become effective.




34. Intentionally Deleted.



35. Tenant’s Space. Attached hereto as Exhibit “C” is a copy of Landlord’s “Tenant
Improvements,” specifying the materials and manner in which Landlord shall finish the Premises (the
“Tenant Improvements”).




     35.1 Tenant Allowance. Landlord shall pay Two Million Nine Hundred Eighty-Nine
Thousand Nine Hundred Sixty and no/Dollars ($2,989,960.00) towards the costs of completing the
Tenant Improvements (the “Allowance”). If the cost to complete the Tenant Improvements exceeds the
Allowance, Landlord shall advance up to an additional Seven Hundred Forty-Seven Thousand Four
Hundred Ninety and no/Dollars ($747,490.00) (the “Amortized Amount”). Tenant shall notify Landlord
in writing within fifteen (15) days after receipt of a written invoice from Landlord, whether it
(a) desires Landlord to advance all or any portion of the Amortized Amount or (b) it elects to pay
the amount directly to Landlord. The parties acknowledge that while Tenant is required to notify
Landlord of its intent to pay the foregoing amount directly within 15 days after receipt of the
written invoice, Tenant’s actual payment thereof shall not be due until thirty (30) days following
receipt of the applicable invoice. Such portion of the Amortized Amount which has been advanced
shall be repaid by Tenant to Landlord on a monthly basis, together with Base Rent, as additional
rent, in an amount equal to the amount of the Amortized Amount which has been advanced, amortized
over a ten (10) year term, with interest accruing at nine percent (9%) per annum. Tenant shall
execute an amendment to this Lease or an acknowledgment of the Amortized Amount within fifteen (15)
days after receipt of a written statement from Landlord, together with reasonable supporting
documentation. Any costs to complete the Tenant Improvements in excess of Three Million Seven
Hundred Thirty-Seven Thousand Four Hundred Fifty and no/Dollars ($3,737,450.00) (which is the sum
of the Allowance and the Amortized Amount), shall be paid by Tenant to Landlord within thirty (30)
days after receipt of a written invoice, together with reasonable supporting documentation.



     35.2 Allowance for Phase I Premises. The parties acknowledge and agree that the
construction of Phase II shall occur subsequent to the Phase I Commencement Date and that the
Allowance and the Amortized Amount are calculated based on the entire square footage in both
the Phase I Premises and the Phase II Premises. Accordingly, Landlord shall not disburse more than
$1,644,800.00 of the Allowance to complete construction of the Phase I Premises, and if the cost to
construct the Phase I Premises exceeds $1,644,800.00, Landlord shall advance up to $411,200.00 of
the Amortized Amount in accordance with Section 35.1. Any Allowance or Amortized Amount that is
not applied toward the cost of construction for the Phase I Premises may be applied towards the
construction of the Phase II Premises.



26









 





     35.3 Unused Allowance. Notwithstanding anything to the contrary contained in this
Section 35 or this Lease, if Tenant does not use all of the Allowance towards Tenant’s
Work, provided that the construction of the Phase II Premises is complete, Tenant shall have the
right to use up to Three Hundred Seventy-Three Thousand Seven Hundred Forty-Five and no/Dollars
($373,745.00) of the undisbursed Allowance either (i) towards soft construction costs, including,
architectural and engineering services, voice and data cabling, exterior building signage,
furniture, fixtures and equipment, and any moving costs or, (ii) upon written notice to Landlord,
as a credit against any future installments of Annual Base Rent until such costs are fully
credited; provided, however that no more than fifty percent (50%) of any
installment of Annual Base Rent shall be withheld by Tenant.



     35.4 Construction of Phase II Premises. The parties acknowledge that Landlord shall
be performing the construction for the Phase II Premises after the Phase I Commencement Date.
Landlord shall notify Tenant of its intent to enter the Phase I Premises, if necessary, to complete
the Phase II construction and the areas of the Phase I Premises in which Landlord shall need
access, and Tenant shall move all personal property that may interfere with Landlord’s ability to
complete its work. While performing the construction of the Phase II Premises, Landlord assumes no
liability for any damage to Tenant’s personal property contained in the Premises, and Tenant shall
not be entitled to any elimination or abatement of rent, unless such damage is caused by the
negligence, recklessness or willful misconduct of Landlord, its agents, employees and/or
contractors. The parties acknowledge and agree that Tenant shall be responsible for construction
of the Clean Room, and Tenant shall comply with the terms and conditions of Section 10 of
this Lease in its performance of such construction. To the extent Tenant chooses to apply the
Allowance towards construction of the Clean Room, Landlord shall reimburse Tenant for amounts
actually paid by Tenant in connection therewith to Tenant’s vendors, suppliers or contractor,
provided that Landlord shall have received (i) a certificate signed by Tenant and Tenant’s
architect setting forth (a) that the sum then requested was paid by Tenant to contractors,
subcontractors, materialmen, engineers and other persons who have rendered services or furnished
materials in connection with work on the Clean Room, (b) a complete description of the services and
materials and the amounts paid or to be paid to each of such persons in respect thereof, and (c) a
statement that the work described in the certificate has been completed substantially in accordance
with the plans and specifications approved by Landlord in accordance with Section 10, and
(ii) paid receipts or such other proof of payment as Landlord shall reasonably require for all such
work completed. Landlord shall reimburse Tenant within thirty (30) days after Landlord’s receipt
of a written request for reimbursement from Tenant and shall debit the Allowance therefor.



     35.5 Construction Management Fee. Landlord shall provide Tenant with a reasonable
amount of construction management services in connection with the construction of Tenant’s Work for
a construction management fee in the amount of (i) five percent (5%) of the aggregate construction
costs incurred in connection with the Tenant Improvements for the Phase I Premises and (ii) three
percent (3%) of the aggregate construction costs incurred in connection with the Tenant
Improvements for the Phase II Premises, both of which amounts shall be deducted from the Allowance.
Such construction management services shall include (i) coordination of Tenant’s access to the
Building including the parking areas and rear entrances, loading dock, one (1) freight elevator and
one (1) stairwell during construction of Tenant’s Work, (ii) overview of the installation of
Tenant’s telecommunication equipment, (iii) confirmation that Tenant’s security/alarm system and
fire alarm system is consistent with the system installed by Landlord in the Building, (iv)
coordination with the Base Building security during construction, (v) coordination of all noise
related work in an occupied Building (i.e., tie in to fire alarm and sprinkler systems,
hammer-drilling, core drilling during non-business hours), and (vi) location of dumpster. In
addition to Landlord’s construction management services, Tenant may select its
own construction manager, subject to the prior approval of Landlord, which shall not be
unreasonably withheld, conditioned or delayed.



     35.6 Tenant Caused Delay. If Tenant interferes with Landlord’s ability to
substantially complete the Phase I Premises by the Phase I Target Date in any way (i.e., delays in
selection of finishes, issuing stop orders, requesting change orders, requesting the performance of
work not included as Tenant Improvements, failing to provide timely responses to Landlord’s request
for



27









 







approved plans and specifications) (“Tenant Delay”), and such Tenant Delay is a direct cause of
Landlord’s inability to substantially complete the Phase I Premises by the Phase I Target Date,
then and in such event the Phase I Commencement Date shall be deemed to be the date that
substantial completion of the Phase I Premises would have occurred (but in no event prior to the
Phase I Target Date) in the absence of the Tenant Caused Delay.



     35.7 Budget for Tenant Improvements. Landlord shall provide Tenant with a copy of a
budget outlining Landlord’s anticipated costs for completing the Tenant Improvements (the
“Budget”). To the extent Landlord’s work hereunder would cause the overall cost of the Tenant
Improvements to exceed the Budget, Landlord shall notify Tenant in writing of such overrun, and
Tenant shall have five (5) days to notify Landlord if it disapproves of such overrun, provided that
Tenant shall not unreasonably withhold its approval hereunder. If Tenant does not notify Landlord
in writing of its disapproval thereof, such overrun shall be deemed approved. If Tenant
disapproves of Landlord’s projected overrun, Tenant shall cooperate with Landlord to devise
alternatives to alleviate any possible overruns. To allow Tenant to monitor the Budget, Landlord
shall provide copies to Tenant of the invoices paid in connection with the Tenant Improvements.


36. Quiet Enjoyment. Tenant, upon the payment of rent and the performance of all the terms
of this Lease, shall at all times during the Term peaceably and quietly enjoy the Premises without
any disturbance from Landlord or any other person claiming through Landlord.



37. Vacation of Premises. Tenant shall vacate the Premises at the end of the Term. If
Tenant fails to vacate at such time there shall be payable to Landlord an amount equal to one
hundred fifty percent (150%) of the monthly Annual Base Rent stated in Section 1.1.11 paid
immediately prior to the holding over period for each month or part of a month that Tenant holds
over, plus all other payments provided for herein, and the payment and acceptance of such payments
shall not constitute an extension or renewal of this Lease. In event of any such holdover,
Landlord shall also be entitled to all remedies provided by law for the speedy eviction of tenants,
and to the payment of all attorneys’ fees and expenses incurred in connection therewith.
Notwithstanding the foregoing, for the first thirty (30) days during which Tenant holds over
pursuant to this Section 37, Tenant shall pay an amount equal to one hundred ten percent
(110%) of the monthly Annual Base Rent stated in Section 1.1.11 paid immediately prior to
the holding over period.



38. Members’ Liability. It is understood that the Owner of the Building is a Colorado
limited liability company. All obligations of the Owner hereunder are limited to the net assets of
the Owner from time to time. No member of Owner, or of any successor entity, whether now or
hereafter a member, shall have any personal responsibility or liability for the obligations of
Owner hereunder.



39. Separability. If any term or provision of this Lease or the application thereof to any
person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this
Lease or the application of such term or provision of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.




40. Indemnification.




     40.1 Tenant’s Indemnification. Tenant shall indemnify and hold harmless Landlord and
all of its and their respective members, partners, directors, officers, agents and employees from
any and all liability, loss, cost or expense arising from all third-party claims resulting from or
in connection with:



          40.1.1 any act, omission or negligence of Tenant or any of its subtenants, assignees or
licensees or its or their partners, directors, officers, agents, employees, invitees or
contractors;




          40.1.2 any accident, injury or damage whatever occurring in, at or upon the Premises other
than those items covered under Landlord’s indemnity as described in Section 40.2; and




28









 







together with all costs and expenses reasonably incurred or paid in connection with each such claim
or action or proceeding brought thereon, including, without limitation, all reasonable attorney’s
fees and expenses.




     In case any action or proceeding is brought against Landlord and/or any of its and their
respective partners, directors, officers, agents or employees and such claim is a claim from which
Tenant is obligated to indemnify Landlord pursuant to this Section, Tenant, upon written notice
from Landlord shall resist and defend such action or proceeding (by counsel reasonably satisfactory
to Landlord). The obligations of Tenant under this Section shall survive termination of this
Lease.



     40.2 Landlord’s Indemnification. Landlord shall indemnify and hold harmless Tenant and
all of its and their respective members, partners, directors, officers, agents and employees from
any and all liability, loss, cost or expense arising from all third-party claims resulting from or
in connection with any act, omission or negligence of Landlord or any of its tenants or licensees
or its or their partners, directors, officers, agents, employees, invitees or contractors; and


together with all costs and expenses reasonably incurred or paid in connection with each such claim
or action or proceeding brought thereon, including, without limitation, all reasonable attorney’s
fees and expenses.




     In case any action or proceeding is brought against Tenant and/or any of its and their
respective partners, directors, officers, agents or employees and such claim is a claim from which
Landlord is obligated to indemnify Tenant pursuant to this Section, Landlord, upon written notice
from Tenant shall resist and defend such action or proceeding (by counsel reasonably satisfactory
to Tenant). The obligations of Landlord under this Section shall survive termination of this
Lease.


41. Captions. All headings anywhere contained in this Lease are intended for convenience
or reference only and are not to be deemed or taken as a summary of the provisions to which they
pertain or as a construction thereof.



42. Brokers. Tenant represents that Tenant has dealt directly with, only with, the Broker
as broker in connection with this Lease, and Tenant warrants that no other broker negotiated this
Lease or is entitled to any commissions in connection with this Lease. Landlord shall pay the
Broker pursuant to the terms of a separate written agreement by and between Landlord and Broker.



43. Recordation. Tenant covenants that it shall not, without Landlord’s prior written
consent, which consent may be withheld in Landlord’s sole and absolute discretion, record this
Lease or any memorandum of this Lease or offer this Lease or any memorandum of this Lease for
recordation. If at any time Landlord or any mortgagee of Landlord’s interest in the Premises shall
require the recordation of this Lease or any memorandum of this Lease, such recordation shall be at
Landlord’s expense. If at any time
Tenant shall request the recordation of this Lease or any memorandum of this Lease, and to the
extent Landlord consents to such recordation as described above, then such recordation shall be at
Tenant’s expense. If the recordation of this Lease or any memorandum of this Lease shall be
required by any valid governmental order, or if any government authority having jurisdiction in the
matter shall assess and be entitled to collect transfer taxes or documentary stamp taxes, or both
transfer taxes and documentary stamp taxes on this Lease or any memorandum of this Lease, Tenant
shall execute such acknowledgments as may be necessary to effect such recordations and pay, upon
request of Landlord, one half of all recording fees, transfer taxes and documentary stamp taxes
payable on, or in connection with this Lease or any memorandum of this Lease or such recordation.



44. Successors and Assigns. The covenants, conditions and agreements contained in this
Lease shall bind and inure to the benefit of Landlord and Tenant, and their respective heirs,
personal representatives, successors and assigns (subject, however, to the terms of Section
20 hereof).




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45. Integration of Agreements. This writing is intended by the Parties as a final
expression of their agreement and is a complete and exclusive statement of its terms, and all
negotiations, considerations and representations between the Parties are incorporated. No course
of prior dealings between the Parties or their affiliates shall be relevant or admissible to
supplement, explain, or vary any of the terms of this Lease. Acceptance of, or acquiescence to, a
course of performance rendered under this Lease or any prior agreement between the Parties or their
affiliates shall not be relevant or admissible to determine the meaning of any of the terms or
covenants of this Lease. Other than as specifically set forth in this Lease, no representations,
understandings, or agreements have been made or relied upon in the making of this Lease.



46. Hazardous Material; Indemnity. Tenant further agrees to the following:




     46.1 As used in this Lease, the following terms shall have the following meanings:



          46.1.1 “Environmental Laws” shall mean all federal, state or local statutes, regulations,
rules, ordinances, codes, licenses, permits, orders, approvals, authorizations, agreements,
ordinances, administrative or judicial rulings or similar items relating to the protection of the
environment or the protection of human health, including, without limitation, all requirements
pertaining to reporting, licensing, permitting, investigation and remediation of emissions,
discharges, Releases or Threats of Releases (as defined below) of Hazardous Materials into the air,
surface water, groundwater or land, or relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials or relating to storage
tanks.




          46.1.2 “Hazardous Materials” shall mean (i) any substance, gas, material or chemical which is
defined as or included in the definition of “hazardous substances”, “toxic substances”, “hazardous
materials”, “hazardous wastes” under any federal, state or local statute, law, or ordinance or
under the regulations adopted or guidelines promulgated pursuant thereto, including, but not
limited to, the Comprehensive Environmental Response Compensation and Liability Act of 1980, as
amended, 42 U.S.C. §§ 9061 et seq. (“CERCLA”); the Hazardous Materials Transportation Act,
as amended 49 U.S.C. §§ 1801, et seq.; the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. §§ 6901, et seq.; (ii) radon gas in excess of four (4) picocuries per
liter, friable asbestos, urea formaldehyde foam insulation, petroleum products, transformers or
other equipment which contain dielectric fluid containing levels of polychlorinated biphenyls in
excess of federal, state or local safety guidelines, whichever are more stringent; and (iii) any
other substance, gas, material or chemical, exposure to or release of which is prohibited, limited
or regulated by any governmental or quasi-governmental entity or authority that asserts or may
assert jurisdiction over the Premises, the Building or the Property.




          46.1.3 “Hazardous Materials Inventory” shall mean a comprehensive inventory of all Hazardous
Materials used, generated, stored, treated or disposed of by Tenant at the Premises.




          46.1.4 “Losses” shall mean all claims, liabilities, obligations, losses (including, without
limitation, diminution in the value of the Premises, the Building, or the Property, damages for the
loss or restriction on use of rentable or usable space or of any amenity of the Premises, the
Building and/or the Property, damages arising from any adverse impact on marketing of space),
damages, penalties, fees, actions, judgments, lawsuits, costs, expenses, disbursements, orders or
decrees, including, without limitation, attorneys’ and consultants’ fees and expenses.




          46.1.5 “Release” means any releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing or dumping into soil, surface waters,
groundwaters, land, stream sediments, surface or subsurface strata, ambient air and any
environmental medium comprising or proximate to and affecting the Premises, the Building or the
Property.




          46.1.6 “Threat of Release” means a substantial likelihood of a Release which requires action
to prevent or mitigate damage to the soil, surface waters, groundwaters, land,

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stream sediments,
surface or subsurface strata, ambient air and any environmental medium comprising or proximate to
and affecting the Premises, the Building or the Property.




     46.2 Tenant shall not generate, use, manufacture, recycle, handle, store, place, transport,
treat or Release any Hazardous Materials at, on, in or near the Premises, the Building or the
Property or cause any of the foregoing to occur at, on, in, or near the Premises, the Building or
the Property and shall comply with all Environmental Laws in connection with Tenant’s use or
occupancy of the Premises and the Building, and promptly shall take all remedial action, at
Tenant’s sole cost and expense, but with Landlord’s prior approval, necessary or desirable to
remedy, clean-up and remove the presence of any Hazardous Materials resulting from Tenant’s
violation of the prohibitions set forth in this sentence or Tenant’s failure to comply with
Environmental Laws. Notwithstanding the foregoing, Tenant shall not be deemed to be prohibited from
using products containing Hazardous Materials so long as such products are commonly found in an
office or a medical device manufacturing and product development environment and are handled,
stored, used and disposed of in compliance with all Environmental Laws. In addition, Tenant shall
(i) obtain, maintain in full force and effect, and comply with, all permits required under
Environmental Laws; (ii) comply with all record keeping and reporting requirements imposed by
Environmental Laws concerning the use, handling, treatment, storage, disposal or release of
Hazardous Materials on the Premises, the Building and the Property; (iii) report to Landlord any
Release of Hazardous Materials by Tenant or of which Tenant has knowledge within two (2) business
days of such discharge or release; (iv) provide to Landlord copies of all written reports
concerning such discharge of Hazardous Materials that are required to be filed with governmental or
quasi-governmental entities under Environmental Laws; (vi) maintain and annually update a Hazardous
Materials Inventory with respect to Hazardous Materials used, generated, treated, stored or
disposed of at the Premises, the Building and the Property; and (vii) make available to Landlord
for inspection and copying, at Landlord’s expense, upon reasonable notice and at reasonable times,
such Hazardous Materials Inventory and any other reports, inventories or other records required to
be kept under Environmental Laws concerning the use, generation, treatment, storage, disposal or
release of Hazardous Materials.



     46.3 Without limitation on any other indemnities by or obligations of Tenant to Landlord under
this Lease or otherwise, Tenant hereby covenants and agrees to protect, defend, indemnify and hold
harmless Landlord from and against any Losses incurred by Landlord as a result of Tenant’s breach
of any representation, covenant or warranty hereof; or as a result of any claim, demand, liability,
obligation, right or cause of action, including, but not limited to governmental action or other
third party action (collectively, “Claims”), that is asserted against Landlord, the Premises, the
Building or the Property as a result of or which arises directly or indirectly, in whole or in
part, out of a Release, Threat of Release, treatment, transport, handling or disposal of any
Hazardous Materials at, on, under, in, about, or from the Premises, the Building or the Property
attributable to or arising out of the operations or activities or presence of Tenant or any
assignee, sublessee, agent or representative of Tenant at or about the Premises, the Building or
the Property. This indemnification of Landlord and its Mortgagee(s) by Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal, or restoration work required by any federal, state or
local governmental agency or political subdivision because of Hazardous Material present in the
soil or ground water on or under the Building.



     46.4 Landlord shall not Release any Hazardous Materials at, on, in or near the Premises, the
Building or the Property and shall comply with all Environmental Laws in connection with Landlord’s
use or occupancy of the Premises and the Building, and promptly shall take all remedial action, at
Landlord’s sole cost and expense, necessary or desirable to remedy, clean-up and remove the
presence of any Hazardous Materials with respect to any Release by Landlord or Landlord’s failure
to comply with Environmental Laws. Notwithstanding the foregoing, Landlord shall not be deemed to
be prohibited from using products containing Hazardous Materials so long as such products are
commonly found in an office or a medical device manufacturing and product development environment
and are handled, stored, used and disposed of in compliance with all Environmental Laws. In
addition, Landlord shall (i) obtain, maintain in full force and effect, and comply with, all
permits required under Environmental Laws and (ii) comply with all record keeping and reporting
requirements imposed by



31









 







Environmental Laws concerning the use, handling, treatment, storage,
disposal or release of Hazardous Materials on the Premises, the Building and the Property



     46.5 Without limitation on any other indemnities by or obligations of Landlord to Tenant under
this Lease or otherwise, Landlord hereby covenants and agrees to protect, defend, indemnify and
hold harmless Tenant from and against all third party claims asserted against Tenant, the Premises,
the Building or the Property resulting from Landlord’s breach of any representation, covenant or
warranty hereof(collectively, “Claims”) or which arises directly out of a Release or Threat of
Release of any Hazardous Materials at, on, under, in, about, or from the Premises, the Building or
the Property attributable to or arising out of the operations or activities or presence of Landlord
or representative of Landlord at or about the Premises, the Building or the Property



     46.6 The indemnities, warranties and covenants contained in this Article shall survive
termination of this Lease.


47. Americans With Disabilities Act. Notwithstanding any other provisions contained in
this Lease and with the purpose of superseding any such provisions herein that might be construed
to the contrary, it is the intent of Landlord and Tenant that at all times while this Lease shall
be in effect that the following provisions shall be deemed their specific agreement as to how the
responsibility for compliance (and cost) with the Americans With Disabilities Act and amendments to
same (“ADA”), both as to the Premises and the Property, shall be allocated between them, namely:




     47.1 Landlord and Tenant agree to cooperate together in the initial design, planning and
preparation of specifications for construction of the Premises so that same shall be in compliance
with the ADA. Any costs associated with assuring that the plans and specifications for the
construction of the Premises are in compliance with the ADA shall be borne by the party whose
responsibility it is hereunder to bear the cost of preparation of the plans and specifications.
Similarly those costs incurred in the initial construction of the Premises so that same are built
in compliance with the ADA shall be included within Tenant’s Improvements and handled in the manner
as provided for in other Sections of this Lease.



     47.2 Subject to Section 47.4, modifications, alterations and/or other changes required
to and within the Common Areas which are not capital in nature shall be the responsibility of
Landlord to perform and the cost of same shall be considered a part of the Building Expenses and
treated as such.



     47.3 Subject to Section 47.4, modifications, alterations and/or other changes required
to and within the Common Areas which are capital in nature shall be the responsibility of Landlord
to perform and the cost of same shall be considered a part of the Building Expenses, but shall be
amortized in accordance with generally accepted accounting principles as described in Section
6.2.2.12 above.



     47.4 Modifications, alterations and/or other charges required to and within the Common Areas,
whether capital in nature or not, which are required as a result of Tenant’s specific use of the
Premises, as compared to office uses generally, shall be paid by Tenant within thirty (30) days
after receipt of an invoice from Landlord, together with reasonable supporting documentation.



     47.5 Modifications, alterations and/or other changes required to and within the Premises
(after the initial construction of same), whether capital in nature or non-capital in nature, shall
be the responsibility of Tenant and at its cost and expense; unless the changes are structural in
nature and result from the original design of the Building, in which instance they shall be the
responsibility of Landlord and at its cost and expense.



     Each party hereto shall indemnify and hold harmless the other party from any and all
liability, loss, cost or expense arising as a result of a party not fulfilling its obligations as
to compliance with the ADA as set forth in this Section.



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48. Several Liability. If Tenant shall be one or more individuals, corporations or other
entities, whether or not operating as a partnership or joint venture, then each such individual,
corporation, entity, joint venturer or partner shall be deemed to be both jointly and severally
liable for the payment of the entire rent and other payments specified herein.



49. Financial Statements. Tenant represents and warrants to Landlord that the financial
statements heretofore delivered by Tenant to Landlord are true, correct and complete in all
respects, have been prepared in accordance with generally accepted accounting principles, and
fairly represent the financial condition of Tenant as of the date thereof, and that no material
change has thereafter occurred in the financial conditions reflected therein. Within fifteen (15)
days after request from Landlord, Tenant agrees to deliver to Landlord such future financial
statements and other information as Landlord from time to time may reasonably request.



50. Definition of “Day” and “Days” . As used in the Lease, the terms “day” and “days”
shall refer to calendar days unless specified to the contrary; provided, however, that if the
deadline established for either party’s performance hereunder occurs on a Saturday, Sunday or
banking holiday in the States of Colorado or Maryland, the date of performance shall be extended to
the next occurring business day.



51. Tenant’s Anti-Terrorism Representation. Tenant hereby represents and warrants that
neither Tenant, nor any of its respective officers, directors, shareholders, partners, members or
affiliates (including without limitation indirect holders of equity interests in Tenant) is or will
be an entity or person: (i) that is listed in the Annex to, or is otherwise subject to the
provisions of Executive Order 13224 issued on September 24, 2001 (“EO13224”); (ii) whose name
appears on the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) most
current list of “Specifically Designated National and Blocked Persons” (which list may be published
from time to time in various mediums including, but not limited to, the OFAC website); (iii) who
commits, threatens to commit or supports “terrorism”, as that term is defined in EO13224; (iv) is
subject to sanctions of the United States government or is in violation of any federal, state,
municipal or local laws, statutes, codes, ordinances, orders, decrees, rules or regulations
relating to terrorism or money laundering, including, without limitation, EO13224 and the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001; or (v) who is otherwise affiliated with any entity or person listed above
(any and all parties or persons described in clauses (i) – (v) above are herein referred to as a
“Prohibited Person”).




     Neither Tenant, nor any of their respective officers, directors, shareholders, partners,
members or affiliates (including without limitation indirect holders of equity interests in Tenant)
shall (a) conduct any business, nor engage in any transaction or dealing, with any Prohibited
Person, including, but not limited to, the making or receiving of any contribution of funds, goods,
or services, to or for the benefit of a Prohibited Person, or (b) engage in or conspire to engage
in any transaction that evades or avoids, or has the purpose of evading or avoiding, or
attempts to violate, any of the prohibitions set forth in EO13224. Tenant agrees to indemnify and
hold Landlord harmless from and against all claims, lawsuits, costs (including reasonable counsel
fees), losses, damages and liabilities that arise out of or relate to Landlord’s engagement in any
activity associated with either (a) or (b) set forth above. If Tenant violates the provisions of
this Section, such violation shall be considered an immediate Event of Default and Landlord shall
not be required to grant Tenant any cure period prior to exercising its rights under this Lease,
including, without limitation, termination of the Lease.


52. Parking. During the Initial Term, Tenant shall have the non-exclusive right, on a
first-come, first-serve basis, to park in the surface parking, at no cost or expense to Tenant or
its employees or agents, at a ratio of approximately 4 spaces per 1,000 rentable square feet of the
Premises, as such Premises may be expanded pursuant to Section 53 herein.



53. Right of Expansion. The parties acknowledge and agree that Landlord has the capacity
to build an addition onto the Building (the “Building Addition”). At any time prior to the fourth
(4th) anniversary of the Phase I Commencement Date, provided that (i) Tenant is not in
default at the time of exercising its rights under this Section 53, (ii) Tenant occupies
the Premises and is open for business in the entire Premises (which shall only include the Phase I
Premises until the


33









 






Phase II Commencement Date) (and will not have reduced the size of the Premises
in any subsequent amendments or agreements after the date of this Lease) and (iii) Landlord shall
have determined, in its reasonable business judgment, that Tenant has sufficient financial net
worth to fulfill its obligations under this Lease for both the Premises and the Expansion Space (as
defined herein), Tenant shall have the one-time right to require Landlord to construct a minimum of
an additional twenty-five thousand (25,000) rentable square feet up to a maximum of forty thousand
(40,000) rentable square feet (the “Expansion Space”). Tenant shall notify Landlord in writing of
its intent to exercise its rights under this Section 53 (“Tenant’s Request”).




     53.1 Terms of Rental for Expansion Space within Building. If Tenant exercises its
option to expand, Tenant’s lease of the Expansion Space shall be subject to the following terms and
conditions:




(a) the Base Rent for the Expansion Space for the first Lease Year shall be equal to
Tenant’s Percentage Share of Total Development Costs (as defined herein) multiplied by nine
percent (9%), with annual Fifty Cent ($.50) increases after the first Lease Year;




(b) Landlord shall build out the core and shell of the Building Addition with at least
25,000 rentable square feet;




(c) Landlord shall construct such tenant improvements in the Expansion Space as are mutually
agreed upon by both Landlord and Tenant (the “Expansion Improvements”);




(d) Landlord shall pay for the cost of the Expansion Improvements up to an amount equal to
the product of (i) Forty-One and no/Dollars ($41.00) and the rentable area of the Expansion
Space if Tenant exercises its rights during the first Lease Year, (ii) Forty-Two and
no/Dollars ($42.00) and the rentable area of the Expansion Space if Tenant exercises its
rights during the second Lease Year, (iii) Forty-Three and no/Dollars ($43.00) and the
rentable area of the Expansion Space if Tenant exercises its rights during the third Lease
Year or (iv) Forty-Four and no/Dollars ($44.00) and the rentable area of the Expansion Space
if Tenant exercises its rights during the fourth Lease Year (the “Expansion Allowance);




(e) If the cost to complete the Expansion Improvements exceeds the Expansion Allowance, at
Tenant’s option, Tenant shall either reimburse Landlord directly for such excess costs or
Landlord shall advance up to an additional amount equal to the product of Ten and no/Dollars
($10.00) and the rentable area of the Expansion Space (the “Expansion Amortized Amount”),
which amount shall be repaid by Tenant to Landlord on a monthly basis, together with Base
Rent, as additional rent, in an amount equal to the
amount of the Expansion Amortized Amount which has been advanced, amortized over a ten (10)
year term, with interest accruing at nine percent (9%) per annum;




(f) The term of the Lease for the Expansion Space shall be ten (10) years from the
commencement date for the Expansion Space, and the term for the Premises shall be extended
to be coterminous therewith, with the Base Rent for the Premises increasing during such
extension in the same proportion as the increases during the then current Term;




(g) The commencement date for the Expansion Space shall be the earlier to occur of (a) the
date on which Tenant takes possession and occupancy of the Expansion Space to conduct
business or (b) the date five (5) days following that date which is the last on which all of
the following events have occurred, namely (x) the Expansion Space is “substantially
completed,” as defined in Section 3.2 above, and (y) Landlord has given Tenant
notice that the Expansion Space is “substantially completed;” Provided, however, that the
target date for the Expansion Space commencement date shall be eighteen (18) months
following full execution of an amendment to this Lease pursuant to Section 53.3; and




(h) Landlord shall provide Tenant with a copy of a budget outlining Landlord’s anticipated
costs for completing the Expansion Improvements (the “Expansion Budget”).



34









 







To the extent
Landlord’s work hereunder would cause the overall cost of the Expansion Improvements to
exceed the Expansion Budget, Landlord shall notify Tenant in writing of such overrun, and
Tenant shall have five (5) days to notify Landlord if it disapproves of such overrun,
provided that Tenant shall not unreasonably withhold its approval hereunder. If Tenant does
not notify Landlord in writing of its disapproval thereof, such overrun shall be deemed
approved. If Tenant disapproves of Landlord’s projected overrun, Tenant shall cooperate
with Landlord to devise alternatives to alleviate any possible overruns. To allow Tenant to
monitor the Expansion Budget, Landlord shall provide copies to Tenant of the invoices paid
in connection with the Expansion Improvements.



     Notwithstanding the foregoing, prior to the commencement of construction of the Expansion
Space, Landlord shall provide Tenant with its estimate of the Total Development Costs (the
“Development Cost Statement”). Within fourteen (14) days following receipt of the Development Cost
Statement, Tenant shall notify Landlord in writing either directing Landlord to proceed with the
construction of the Expansion Space, or withdrawing Tenant’s Request, at which time Tenant’s rights
under this Section 53 shall be null and void and of no further force and effect and Tenant shall
reimburse Landlord for Landlord’s actual costs in designing the Expansion Space incurred as of the
date of Landlord’s Development Cost Statement, including, without limitation, the architectural and
engineering costs, mechanical, electrical and plumbing costs, subdivision costs and the costs to
produce the construction drawings but in no event more than $7.80 per rentable area of the
Expansion Space .



     53.2 Tenant’s Share of Total Development Costs.



          53.2.1 The term, “Total Development Costs,” shall mean any and all hard and soft costs
incurred by Landlord in completing the Building Addition and the Expansion Space, which costs shall
include, but not be limited to:





(a) that portion of the acquisition cost of the Land that is attritubable to the
Building Addition;




(b) architectural and engineering costs associated with the design of the Building
Addition and the Expansion Improvements;




(c) construction costs of the Building Addition;




(d) construction costs of the Expansion Improvements;




(e) development soft costs and the interest carried on such development costs during
the construction of the Building Addition;




(f) construction management fee of five percent (5%) of the aggregate construction
costs incurred in connection with the construction of the Building Addition and the
Expansion Space;




(g) brokerage commissions;




(h) attorneys’ fees (excluding such fees incurred for lease negotiations);




(i) land studies, if necessary, including soil tests, surveys and environmental
studies;




(j) utility upgrades, if required;




(k) landscaping;




(l) parking lot expansion, if required;




(m) traffic studies, if necessary;



35









 






(n) development plan and subdivision costs;




(o) costs of offsite improvements, if required to construct the Building Addition;




(p) appraisals and insurance;




(q) any loan fees incurred to finance the construction of the Building Addition; and




(r) signage, if installed at Landlord’s expense.



          53.2.2 The term, “Tenant’s Share,” for purposes of this Section 53 shall mean the
rentable area of the Expansion Space divided by the rentable area of the Building Addition.




     53.3 Entry into Lease Amendment. Within thirty (30) days after the date of Tenant’s
Request, Landlord and Tenant shall enter into a written amendment to this Lease which adds the
Expansion Space to the definition of the “Premises” and addresses such other matters that are at
variance with the terms and conditions of this Lease. At such time as the Total Development Costs
are ascertainable, Landlord and Tenant shall enter into an additional amendment to this Lease
setting forth the Base Rent for the Expansion Space, with rent commencing on the Expansion Space
upon the commencement date for the Expansion Space, as set forth in Section 53.1.



     53.4 Miscellaneous Matters. The expansion rights shall not be severed from this
Lease, or separately sold, assigned or transferred, but may only be assigned or transferred as a
part of this Lease. Tenant acknowledges and agrees that this provision is personal to Landlord and
shall not survive any assignment of this Lease or transfer of Landlord’s rights under this Lease to
any subsequent third-party owner or Mortgagee.


54. Exterior Signage. Provided Tenant occupies at least fifty percent (50%) of the
Rentable Area of the Building, Tenant, at Tenant’s expense, shall have the right to install two (2)
exterior signs on the Building on the locations shown on Exhibit “F” attached hereto and
made a part hereof, provided that (i) there is no Event of Default outstanding at anytime, (ii)
Tenant obtains Landlord’s prior written approval, such approval not to be unreasonably withheld,
with regard to the size, and method of installation of the signage and (iii) Tenant remains open
for business in the Premises. Tenant, at Tenant’s expense, shall maintain the signage, and obtain
all required permits from any governmental authorities. At the expiration
or sooner termination of this Lease, Tenant shall remove the exterior signage on the Building and
restore the Building’s surface to that condition which existed immediately prior to the
installation of the signage. In addition, if, after installation of the signage, any of the
conditions set forth in subsections (i) through (iii) inclusive of the first sentence of this
paragraph are not satisfied, Tenant, at Tenant’s expense, shall remove the signage upon fifteen
(15) days’ advance written notice from Landlord and restore the Building’s surface to that
condition which existed immediately prior to the installation of the signage.



55. Landlord’s Warranties and Covenants. Notwithstanding anything in this Lease to the
contrary, Landlord represents and warrants to Tenant that it is the sole owner in fee simple of the
Building, that no mortgages or deeds of trusts presently encumber Landlord’s title to the Building;
no encumbrances on the Building shall prohibit or impede the use of the Premises as contemplated
herein or create any financial obligation on the part of Tenant except as expressly set forth
herein; that Landlord has the full right, power and authority to enter into this Lease and make the
agreements contained herein on its part to be performed; that the execution, delivery and
performance of this Lease has been duly authorized by Landlord; that the Lease constitutes the
valid and binding obligation of Landlord, enforceable in accordance with its terms; that other than
as set forth in any Phase I reports provided to Tenant by Landlord, to Landlord’s knowledge, there
are no Hazardous Materials in, on or under the Premises or the Building; and that the making of
this Lease and the performance thereof will not violate any present zoning laws or ordinances or
the terms or provisions of any mortgage, lease or other agreement to which


36









 






Landlord is a party or
under which Landlord is otherwise bound, or which restricts Landlord in any way with respect to the
use or disposition of the Premises.



56. Landlord Default. If at any time or times Landlord shall be in default in the
performance or observance of any of its covenants, agreements or undertakings provided in this
Lease, and if Landlord shall not cure or remedy such default within thirty (30) days after Tenant
gives written notice thereof to Landlord, or, if such default cannot reasonably be cured and
remedied within thirty (30) days, if Landlord shall not commence in good faith to cure and remedy
such default within thirty (30) days after receipt of such notice from Tenant and continue with due
diligence until such default is cured and remedied, then Tenant may, but shall not be obligated to,
take such action as in Tenant’s good faith judgment is reasonably appropriate to cure and remedy
such default by Landlord, and Landlord shall, within thirty (30) days after receipt of demand
therefor, pay to Tenant an amount equal to all reasonable costs and expenses incurred by Tenant in
so curing and remedying such default. If Landlord fails to pay Tenant within the 30-day period,
Tenant shall only be permitted to offset the amount due against Base Rent after obtaining a final,
unappealable decision in its favor from an adjudicatory body.



57. Right of First Refusal to Purchase. During the Term of this Lease, provided that
Tenant is occupying the entire Premises, has not reduced the size of the Premises in any subsequent
amendments or agreements after the date of this Lease and has not subleased any portion of the
Premises (the “ROFR Conditions”), Tenant shall have a continuing right of first refusal in
connection with the purchase of the Building from Landlord, subject to the limitations set forth in
this Section. When Landlord receives a bona-fide offer to purchase the Building from a company that
produces medical devices (the “Third Party”) that Landlord is willing to accept, provided that
Tenant has satisfied the ROFR Conditions, Landlord shall notify Tenant in writing of the terms and
conditions under which the Third Party is willing to purchase the Building (“Landlord’s Offer
Notice”). Within five (5) business days after Tenant’s receipt of Landlord’s Offer Notice, Tenant
shall exercise the foregoing right of first refusal by delivering written notice of its intention
to purchase the Building on equal or better terms and conditions than those set forth in Landlord’s
Offer Notice (“Tenant’s Acceptance Notice”). Tenant’s failure to provide Tenant’s Acceptance
Notice within the foregoing 5-business day period shall be deemed rejection of Landlord’s Offer
Notice.




     57.1 Purchase and Sale Agreement. If Tenant exercises its rights in a timely fashion
under Section 57 above, within ten (10) days after receipt of Tenant’s Acceptance Notice,
the parties shall execute the agreement of sale which is attached hereto as Exhibit “K”
(the “Agreement of Sale”). Upon the closing of the purchase of the Building, this Lease shall
terminate and Tenant shall have no further rights or obligations hereunder, except as expressly
survive the expiration or sooner termination of this Lease. In the event that the purchase of the
Building does not close pursuant to the terms of the Agreement of Sale, then, in addition to the
applicable provisions of the Agreement of Sale, this Lease shall continue in full force and effect
pursuant to the terms set forth herein, except that Tenant’s Right of First Refusal in this
Section 57 shall be void and of no further force or effect.



     57.2 Miscellaneous Matters. If (i) Tenant is then in default beyond any applicable
cure period under the terms of this Lease at the time of exercising its rights under this
Section 57, (ii) Tenant fails to deliver Tenant’s Acceptance Notice within the five (5)
business day period specified above, (iii) Tenant fails to execute the Agreement of Sale within the
ten (10) day period, unless the Agreement of Sale is not executed for any reason within Landlord’s
reasonable control or (iv) Tenant declines to exercise its rights as provided above, then Landlord
shall be free to sell the Building based on the terms and conditions specified in Landlord’s Offer
Notice. Tenant acknowledges and agrees that the rights granted by this Section 57 are
personal to Landlord and to Tenant and shall not survive any assignment of this Lease by Landlord
or Tenant nor shall it survive any transfer of Landlord’s rights under this Lease to any subsequent
third-party owner or Mortgagee.



37









 





     IN WITNESS WHEREOF, Landlord and Tenant have respectively affixed their hands and seals to
this Lease as of the day and year first above written.



	 	 	 	 	 	 	 
	WITNESS OR ATTEST:	 	LANDLORD:

9965 FEDERAL DRIVE, LLC	 	 
	 
	 	 	 	 	 	 
	/s/
Stephanie L. Shack

	 	By:
	 	     /s/ Roger A. Waesche, Jr.     (SEAL)	 	 
	 

	 	 	 	Name: Roger A. Waesche, Jr.	 	 
	 

	 	 	 	Title: Executive Vice President	 	 
	 
	 	 	 	 	 	 
	WITNESS OR ATTEST:	 	TENANT:

THE SPECTRANETICS CORPORATION	 	 
	 
	 	 	 	 	 	 
	/s/
Wade Bowe

	 	By:
	 	     /s/ Guy A. Childs     (SEAL)	 	 
	 

	 	 	 	Name: Guy A. Childs	 	 
	 

	 	 	 	Title: Chief Financial Officer	 	 





STATE OF MARYLAND, COUNTY OF HOWARD, TO WIT:




     I HEREBY CERTIFY, that on this                      day of                     , 2006,
before me, the undersigned Notary Public of the State, personally appeared Roger A. Waesche, Jr.,
who acknowledged himself to be the Executive Vice President of 9965 FEDERAL DRIVE, LLC, a Colorado
limited liability company, known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument, and acknowledged that he executed the same on behalf of the
limited liability company for the purposes therein contained as the duly authorized Executive Vice
President of the limited liability company by signing the name of the limited liability company by
himself as such Executive Vice President.



     WITNESS my hand and Notarial Seal.



	 	 	 	 	 
	 

	 	 

Notary Public
	 	 






My Commission Expires:                                                            




38









 








	 	 	 	 	 	 	 
	STATE OF COLORADO

	 	 	)	 	 	 
	 

	 	 	)	 	 	ss.
	COUNTY OF EL PASO

	 	 	)	 	 	 






     The foregoing instrument was acknowledged before me this ___day of                     
20___, by                      as                      of The Spectranetics Corporation,
a                     , as                      of The Spectranetics Corporation, a
                    , on behalf of such                     .



     Witness my hand and official seal.



     My commission expires:                                        



	 	 	 
	 

	 	 
	[SEAL]

	 	Notary Public







39









 








EXHIBIT “A”

to Agreement of Lease by and between

9965 FEDERAL DRIVE, LLC, Landlord

and THE SPECTRANETICS CORPORATION, Tenant




FLOOR PLAN




[TO BE ATTACHED]





 









 








EXHIBIT “B”

to Agreement of Lease by and between

9965 FEDERAL DRIVE, LLC, Landlord

and THE SPECTRANETICS CORPORATION, Tenant




RULES AND REGULATIONS




     To the extent that any of the following Rules and Regulations, or any Rules and Regulations
subsequently enacted conflict with the provisions of the Lease, the provisions of the Lease shall
control.



     1. Tenant shall not obstruct or permit its agents, clerks or servants to obstruct, in any
way, the sidewalks, entry passages, corridors, halls, stairways or elevators of the Building, or
use the same in any other way than as a means of passage to and from the offices of Tenant; bring
in, store, test or use any materials in the Building which could cause a fire or an explosion or
produce any fumes or vapor; make or permit any improper noises in the Building; smoke in the
elevators, the Premises, the Building or the Common Areas except in the exterior areas specifically
designated by Landlord; throw substances of any kind out of the windows or doors, or down the
passages of the Building, in the halls or passageways; sit on or place anything upon the window
sills; or clean the windows.



     2. Waterclosets and urinals shall not be used for any purpose other than those for which they
were constructed; and no sweepings, rubbish, ashes, newspaper or any other substances of any kind
shall be thrown into them. Waste and excessive or unusual use of electricity or water is
prohibited.



     3. Tenant shall not (i) obstruct the windows, doors, partitions and lights that reflect or
admit light into the halls or other places in the Building, or (ii) inscribe, paint, affix, or
otherwise display signs, advertisements or notices in, on, upon or behind any windows or on any
door, partition or other part of the interior or exterior of the Building without the prior written
consent of Landlord which shall not be unreasonably withheld. If such consent be given by
Landlord, any such sign, advertisement, or notice shall be inscribed, painted or affixed by
Landlord, or a company approved by Landlord, but the cost of the same shall be charged to and be
paid by Tenant, and Tenant agrees to pay the same promptly, on demand.



     4. Intentionally omitted.



     5. When electric wiring of any kind is introduced, it must be connected as directed by
Landlord, and no stringing or cutting of wires shall be allowed, except with the prior written
consent of Landlord which shall not be unreasonably withheld, and shall be done only by contractors
approved by Landlord. The number and location of telephones, telegraph instruments, electric
appliances, call boxes, etc., shall be subject to Landlord’s approval. No tenants shall lay
linoleum or other similar floor covering so that the same shall be in direct contact with the floor
of the Premises; and if linoleum or other similar floor covering is desired to be used, an
interlining of builder’s deadening felt shall be first affixed to the floor by a paste or other
material, the use of cement or other similar adhesive material being expressly prohibited.



     6. No additional lock or locks shall be placed by Tenant on any door in the Building,
without prior written consent of Landlord. Two keys will be furnished Tenant by Landlord; two
additional keys will be supplied to Tenant by Landlord, upon request, without charge; any
additional keys requested by Tenant shall be paid for by Tenant. Tenant, its agents and employees,
shall not have any duplicate keys made and shall not change any locks. All keys to doors and
washrooms shall be returned to Landlord at the termination of the tenancy, and in the event of any
loss of any keys furnished, Tenant shall pay Landlord the cost thereof.



     7. Intentionally omitted.



     8. No vehicles or animals of any kind (other than animals to assist the disabled), shall be
brought into or keep in or about the Premises. No bicycle shall be brought into or out of the
front lobby or be stored in or around the front entrance of the Building.



B-1









 






     9. Tenant shall not conduct, or permit any other person to conduct, any auction upon the
Premises; manufacture or store goods, wares or merchandise upon the Premises, without the prior
written approval of Landlord, except the storage of usual supplies and inventory to be used by
Tenant in the conduct of its business; permit the Premises to be used for gambling; make any
unusual noises in the Building; permit to be played any musical instrument in the Premises; permit
to be played any radio, television, recorded or wired music in such a loud manner as to disturb or
annoy other tenants; or permit any unusual odors to be produced upon the Premises. Tenant shall
not permit any portion of the Premises to be used for the storage, manufacture, or sale of
intoxicating beverages, narcotics, tobacco in any form, or as a barber or manicure shop.



     10. No awnings or other projections shall be attached to the outside walls of the Building.
No curtains, blinds, shades or screens shall be attached to or hung in, or used in connection with,
any window or door of the Premises, without the prior written consent of Landlord which consent
shall not be unreasonably withheld. Such curtains, blinds and shades must be of a quality, type,
design, and color, and attached in a manner reasonably approved by Landlord.



     11. Canvassing, soliciting and peddling in the Building are prohibited, and Tenant shall
cooperate to prevent the same.



     12. There shall not be used in the Premises or in the Building, either by Tenant or by others
in the delivery or receipt of merchandise, any hand trucks except those equipped with rubber tires
and side guards.



     13. Tenant, before closing and leaving its Premises, shall ensure that all entrance doors to
same are locked.



     14. Landlord shall have the right to prohibit any advertising by Tenant which in Landlord’s
opinion tends to impair the reputation of the Building or its desirability as a building for
offices, and upon notice from Landlord, Tenant shall refrain from or discontinue such advertising.



     15. Landlord hereby reserves to itself any and all rights not granted to Tenant hereunder,
including, but not limited to, the following rights which are reserved to Landlord for its purposes
in operating the Building:




(a) the exclusive right to the use of the name of the Building for all purposes, except
that Tenant may use the name as its business address and for no other purpose;
 

(b) the right to change the name or address of the Building, without incurring any
liability to Tenant for so doing;




(c) the right to install and maintain a sign or signs on the exterior of the Building;

 

(d) the exclusive right to use or dispose of the use of the roof of the Building;




(e) the non-exclusive right to use the area above the ceiling of the Premises for the
purpose of installing and maintaining telecommunications, water lines, utility lines, other
conduit, sprinklers, drainlines, ductwork and HVAC connections and any other equipment
necessary to provide services to any area in the Building;




(f) the right to limit the space on the directory of the Building to be allotted to Tenant
if at any time Tenant is not the sole occupant of the Building; and




(g) the right to grant to anyone the right to conduct any particular business or undertaking
in the Building.



     16. As used herein the term “Premises” shall mean and refer to the “Premises” as defined in
Section 1 of the Lease.



B-2









 





     17. Tenant shall not operate space heaters or other heating or ventilating equipment without
the express prior written consent of Landlord in each instance first obtained. Tenant shall not
install or operate any electrical equipment, appliances or lighting fixtures in the Premises which
are not listed and labeled by Underwriter’s Laboratories or other testing organization acceptable
to Landlord.




B-3









 








EXHIBIT “C”

to Agreement of Lease by and between

9965 FEDERAL DRIVE, LLC, Landlord

and THE SPECTRANETICS CORPORATION, Tenant




SCHEDULE OF TENANT IMPROVEMENTS




PER CONSTRUCTION DRAWINGS DATED OCTOBER 4, 2006




[PAGE 1 OF CONSTRUCTION DRAWINGS TO BE ATTACHED]





 









 









EXHIBIT “D”

to Agreement of Lease by and between

9965 FEDERAL DRIVE, LLC, Landlord

and THE SPECTRANETICS CORPORATION, Tenant




ESTOPPEL CERTIFICATE




[The following is subject to any actual disclosure necessitated by true facts.]




	 	 	 
	Tenant:

	 	THE SPECTRANETICS CORPORATION
	 
	 	 
	To:

	 	 9965 FEDERAL DRIVE, LLC
	 

	 	c/o Corporate Office Properties Trust
	 

	 	Suite 300, 6711 Columbia Gateway Drive
	 

	 	Columbia, Maryland 21046
	 
	 	 
	Re:

	 	                                                            
	 

	 	Colorado Springs, Colorado







	1.	 	                                        , a                      corporation, is the named Tenant (“Tenant”), and
                    . is the Landlord (“Landlord”) under a Lease dated                     , located
at the Property (“Property”) identified above. The Lease, together with the amendments:
	 
	 	 	(collectively, “Lease”) constitutes the entire agreement between Landlord and Tenant with
respect to the Property and the Premises. There are no other lease documents, commitments,
options or rights with respect to the Property or the Premises and there are no other
representations, warranties, agreements, concessions, commitments, or other understandings
between the Tenant and the Landlord regarding the Property or the premises demised other
than as set forth in the Lease or this paragraph 1.
	 
	2.	 	Tenant occupies Suite ___, with a Rentable Square Footage Area of ___ rentable square
feet (the “Premises”). Tenant’s Pro Rata Share of the Property is ___% (___).
	 
	3.	 	The Term of the Lease commenced                      and will expire                     . Tenant is
the actual occupant in possession of the Premises and has not sublet, assigned or hypothecated
its leasehold interest. All improvements to be constructed on the Premises by Landlord have
been completed and accepted by Tenant and any tenant construction or improvement allowances
have been paid.
	 
	4.	 	As of this date, no breach or default exists on the part of Tenant under the Lease, and there
exists no facts that, with the passage of time or the giving of notice, or both, would
constitute a default. To the best of Tenant’s knowledge, no breach or default exists on the
part of Landlord under the Lease, and there exists no facts that, with the passage of time or
the giving of notice, or both, would constitute a default. Neither Tenant nor Landlord has
commenced any action or given or received any notice for the purpose of terminating the Lease.
	 
	5.	 	Base Rent is currently payable in the amount of $                     per month (which includes an
expense stop equal to the amount of the operating expenses incurred by Landlord in the ___ calendar year and a real estate expense stop equal to the amount of the real estate taxes
incurred by Landlord in the ___ calendar year). The base year amounts for operating expenses
are $                     and for real estate taxes are $                     (please specify either dollar
amounts or per square foot amounts). Pursuant to the Lease, Tenant is obligated to pay as
additional rent its pro-rata share of operating expenses and real estate taxes that exceed the
operating expense stop and real estate expense stop set forth in the Lease. The monthly base
rent has been paid through




D-1









 






	 	 	                     and all additional rent has been paid on a current basis in the manner
required under the Lease.
	 
	6.	 	Tenant has paid the first monthly installment of rent in advance, and Tenant has no claim or
defense against Landlord under the Lease and is asserting no offsets or credits against either
the rent or Landlord. Tenant has no claim against Landlord for any security or other deposits
except $                      which was paid pursuant to the Lease. Tenant has no right to any free rent,
rent abatement, rent credit, or other rent concession, except:
	 
	 	 	                                        .
	 
	7.	 	Tenant has no right to renew or extend the term of the Lease, or to expand the size of the
Premises, except:
	 
	 	 	                                        
	 
	 	 	Tenant has no interest in or option or preferential right to purchase all or any part of the
Premises or the Property of which it forms a part, other than its right to lease the
Premises as Tenant under the Lease.
	 
	8.	 	Tenant has no rights of termination with the terms of the Lease except as set forth in the
Lease and except:
	 
	 	 	                                        .
	 
	9.	 	All insurance required of Tenant by the Lease has been provided by Tenant and all premiums
paid.
	 
	10.	 	There has not been filed by or against Tenant a petition in bankruptcy, voluntary or
otherwise, any assignment for the benefit of creditors, any petition seeking reorganization or
arrangement under the bankruptcy laws of the United States or any state thereof, or any other
action brought under said bankruptcy laws with respect to Tenant.
	 
	11.	 	Tenant has not received any written notice of Landlord’s prior sale, transfer, or assignment,
hypothecation or pledge of the Lease or any of the rents or other amounts to be paid by Tenant
pursuant thereto.
	 
	12.	 	Tenant has received no written notice from any governmental authority or other person or
party claiming a violation of, or requiring compliance with, any Federal, State or local
statute, ordinance, rule or regulation or the requirement of law for environmental
contamination at the Premises, to the best knowledge of Tenant, the Tenant is in compliance
with all applicable provisions of the Industry Site Recovery Act, and no hazardous, toxic, or
polluting substances or wastes have been generated, treated, manufactured, stored, refined,
used, handled, transported, released, spilled, disposed of or deposited by Tenant on, in or
under the Premises.




This Tenant Estoppel Certificate may be relied upon by the Landlord, Corporate Office Properties,
L.P. and any lender providing financing to acquire the Property.




D-2









 








     Effective Date:                                                            



	 	 	 	 	 	 	 	 	 
	WITNESS/ATTEST:	 	 	 	                                                           , a               
               

corporation	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 


	 	 
	 	Printed Name:
	 	 

	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	Date:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 







D-3









 





EXHIBIT “E”

to Agreement of Lease by and between

9965 FEDERAL DRIVE, LLC, Landlord

and THE SPECTRANETICS CORPORATION, Tenant




FORM OF COMMENCEMENT DATE AGREEMENT




COMMENCEMENT DATE AGREEMENT




     THIS COMMENCEMENT DATE AGREEMENT is made this ___day of ___, 200___, between 9965
FEDERAL DRIVE, LLC (“Landlord”) and THE SPECTRANETICS CORPORATION (“Tenant”).



     Landlord and Tenant have entered into a certain Agreement of Lease (the “Lease”) dated
___, 2006 demising certain space consisting of
___ rentable square feet in the in the
building located at and having an address of 9965 Federal Drive, Colorado Springs, Colorado (the
“Building”). All of the capitalized terms herein shall have the same respective definitions as set
forth in the Lease.



     Pursuant to the provisions of Article 3 of the Lease, Landlord and Tenant, intending to be
legally bound hereby, acknowledge and agree that the Commencement Date shall be the ___day of
___, 200___, and that the term of the Lease shall end on the ___day of ___, 20___,
at 11:59 p.m., unless sooner terminated or extended, as provided in the Lease. As supplemented
hereby, the Lease shall continue in full force and effect.



     IN WITNESS WHEREOF, the parties hereto have duly executed this Commencement Date Agreement on
this ___day of ___, 200___.



	 	 	 	 	 	 	 	 	 	 	 
	WITNESS OR ATTEST:	 	 	 	LANDLORD:

9965 FEDERAL DRIVE, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	 	 	(SEAL)	 	 
	 


	 	 	 	 	 	 

	 	 	 	 
	 

	 	 	 	 	 	      Name: Roger A. Waesche, Jr.	 	 	 	 
	 

	 	 	 	 	 	     Title: Executive Vice President	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	WITNESS OR ATTEST:	 	 	 	TENANT:

THE SPECTRANETICS CORPORATION
	 
	 

	 	 	 	By:
	 	 	 	(SEAL)	 	 
	 


	 	 	 	 	 	 

	 	 	 	  
	 

	 	 	 	Name:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	   
	 

	 	 	 	Title:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	   






 









 








EXHIBIT “F”

to Agreement of Lease by and between

9965 FEDERAL DRIVE, LLC, Landlord

and THE SPECTRANETICS CORPORATION, Tenant




TENANT’S SIGNAGE




[TO BE ATTACHED]





 









 








EXHIBIT “G”

to Agreement of Lease by and between

9965 FEDERAL DRIVE, LLC, Landlord

and THE SPECTRANETICS CORPORATION, Tenant




TENANT’S TRADE FIXTURES




Deionized water system

Delivery lines for Argon and Nitrogen,

cleam room- CeilingTiles, walls, Filters, pass through’s and doors.

Compressed air lines





 









 








EXHIBIT “H”

to Agreement of Lease by and between

9965 FEDERAL DRIVE, LLC, Landlord

and THE SPECTRANETICS CORPORATION, Tenant




EQUIPMENT TO BE MAINTAINED BY LANDLORD




Pumps




	 	 	 
	Tag No:

	 	CHWP 1
	Make:

	 	California Hydraulics
	Model No:

	 	3196-71/2SS
	Serial No:

	 	840982
	Electrical:

	 	460/3
	HP:

	 	25
	 
	 	 
	Tag No:

	 	CHWP 2 
	Make:

	 	California Hydraulics
	Model No:

	 	3196-71/2SS
	Serial No:

	 	840981
	Electrical:

	 	460/3
	HP:

	 	25
	 
	 	 
	Tag No:

	 	CWP 1
	Make:

	 	Aurora Pump
	Model No:

	 	84-14231-1
	Type No:

	 	411-BF
	Electrical:

	 	460/3
	HP:

	 	20
	 
	 	 
	Tag No:

	 	CWP 2
	Make:

	 	Aurora Pump
	Model No:

	 	84-1423-3
	Type No:

	 	411-BF
	Electrical:

	 	460/3
	HP:

	 	20
	 
	 	 
	Tag No:

	 	CWP 3
	Make:

	 	Aurora Pump
	Model No:

	 	84-14231-2
	Type No:

	 	411-BF
	Electrical:

	 	460/3
	HP:

	 	20
	 
	 	 
	Tag No:

	 	CWP 4
	Make:

	 	B&G
	Model No:

	 	ACC 6 7/8 BF
	Serial No:

	 	1261970
	Electrical:

	 	460/3
	HP:

	 	7.5
	 
	 	 
	Tag No:

	 	CWP 5






H-1









 






	 	 	 
	Make:

	 	B&G
	Model No:

	 	ACC 6 7/8 BF
	Serial No:

	 	1261971
	Electrical:

	 	460/3
	HP:

	 	7.5
	 
	 	 
	Tag No:

	 	CWP 6 
	Make:

	 	B&G
	Model No:

	 	1510 1-1/2 AB
	Serial No:

	 	1259616
	Electrical:

	 	460/3
	HP:

	 	20
	 
	 	 
	Tag No:

	 	CWP 7 
	Make:

	 	B&G
	Model No:

	 	1510 1
1/2 AB
	Serial No:

	 	1259820
	Electrical:

	 	460/3
	HP:

	 	2
	 
	 	 
	Tag No:

	 	HHWP 1 
	Make:

	 	B&G
	Model No:

	 	1510 4C 6 5/8 BF
	Serial No:

	 	1261969
	Electrical:

	 	460/3
	HP:

	 	7.5
	 
	 	 
	Tag No:

	 	HHWP 2 
	Make:

	 	B&G
	Model No:

	 	1510 4C 6 5/8 BF
	Serial No:

	 	1261988
	Electrical:

	 	460/3
	HP:

	 	7.5
	 
	 	 
	Tag No:

	 	HHWP 3 
	Make:

	 	B&G
	Model No:

	 	1510 24C 6 7/8 BF
	Serial No:

	 	1259821
	Electrical:

	 	460/3
	HP:

	 	3
	 
	 	 
	Tag No:

	 	HRWP 1 
	Make:

	 	B&G
	Model No:

	 	VSC B-3/8 BF LAR
	Serial No:

	 	1237643
	Electrical:

	 	460/3
	HP

	 	15
	 
	 	 
	Tag No:

	 	HRWP 2
	Make:

	 	B&G
	Model No:

	 	VSC B-3/8 BF LAR
	Serial No:

	 	1237648
	Electrical:

	 	460/3
	HP:

	 	15






H-2









 






	 	 	 
	Tag No:

	 	HHWP 4 
	Make:

	 	B&G
	Model No:

	 	1510 24C 6078 BF
	Serial No:

	 	1259622
	Electrical:

	 	460/3
	 
	 	 
	Tag No:

	 	CHWP 8 
	Make:

	 	B&G
	Model No:

	 	1510 2 1/2 AB7BF
	Serial No:

	 	1261506
	Electrical:

	 	460/3
	HP:

	 	5
	 
	 	 
	Tag No:

	 	CHWP 9 
	Make:

	 	B&G
	Model No:

	 	1510 2 1/2 AB7BF
	Serial No:

	 	1261507
	Electrical:

	 	460/3
	HP:

	 	5
	 
	 	 
	Tag No:

	 	CHWP 12 
	Make:

	 	B&G
	Model No:

	 	1510 2AC 6-3/4 4BF
	Serial No:

	 	1259628
	Electrical:

	 	460/3
	 
	 	 
	Tag No:

	 	CHWP 13
	Make:

	 	B&G
	Model No:

	 	1510 2AC 6-3/4 4BF
	Serial No:

	 	1259624
	Electrical:

	 	460/3
	 
	 	 
	Tag No:

	 	CHWP 14 
	Make:

	 	B&G
	Model No:

	 	1510 2
1/2 AB 6-5/8 4BF
	Serial No:

	 	1259625
	Electrical:

	 	460/3
	 
	 	 
	Tag No:

	 	Condensate Return Pump #1 
	Make:

	 	B&G
	Model No:

	 	8904840
	Type No:

	 	324 BF
	Electrical:

	 	460/3
	 
	 	 
	Tag No:

	 	Condensate Return Pump #2 
	Make:

	 	B&G
	Model No:

	 	8904840
	Type No:

	 	324 BF
	Electrical:

	 	460/3
	 
	 	 
	Tag No:

	 	Preheat Pump
	Make:

	 	B&G
	Model No:

	 	1531 1 1/2 AB5-3/8 BF
	Type No:

	 	1241130
	Electrical:

	 	460/3






H-3









 






	 	 	 
	HP:

	 	5






Return Air Fans




	 	 	 
	 
	 	 
	Tag No:

	 	RAF 1 
	Make:

	 	Trane
	Model No:

	 	ASV-1000/398
	Serial No:

	 	A84G12002
	HP:

	 	50
	Electrical:

	 	460/3
	 
	 	 
	Tag No:

	 	RAF 3 
	Make:

	 	TCF Aerovent
	Model No:

	 	FSDA-4-100-5-1-41
	Serial No:

	 	96318982-1-1
	HP:

	 	3
	Electrical:

	 	460/3
	 
	 	 
	Tag No:

	 	RAF 6 
	Make:

	 	GP Fan-New York Blower
	Shop No:

	 	Z-8834-120
	Size:

	 	363
	Electrical:

	 	460/3
	Belts:

	 	(3) BX80
	 
	 	 
	Tag No:

	 	RAF 7 
	Make:

	 	GP Fan-New York Blower
	Shop No:

	 	Z-8834-120
	Size:

	 	363
	Electrical:

	 	460/3
	Belts:

	 	(3) BX80
	 
	 	 
	Tag No:

	 	RAF 8
	Make:

	 	GP Fan-New York Blower
	Shop No:

	 	Z-8834-115
	Size:

	 	333
	Electrical:

	 	460/3
	Belts:

	 	(2) BX85






Air Handling Units




	 	 	 
	Tag No:

	 	AC-1 
	Make:

	 	Trane
	Type No:

	 	FSBA-3-100-5-1-55
	Serial No:

	 	95312888-1-1
	Electrical:

	 	460/3
	HP:

	 	50
	Belts:

	 	(2) CX136
	Filters:

	 	(4) 12x24 bag filters
	 

	 	(12) 24x24 bag filters 
	 

	 	Auto roll poly pre filters 
	 
	 	 
	Tag No:

	 	AC-2 
	Make:

	 	Trane
	Type No:

	 	FSBA-3-100-5-1-55






H-4









 






	 	 	 
	Serial No:

	 	95312888-1-2
	Electrical:

	 	460/3
	HP:

	 	30
	Belts:

	 	(2) CX136
	Filters:

	 	(4) 12x24 bag filters
	 

	 	(12) 24x24 bag filters 
	 

	 	Auto roll poly pre filters 
	 
	 	 
	Tag No:

	 	AC-3 
	Make:

	 	Trane
	Type No:

	 	38-26-1780-AP
	Serial No:

	 	SF 7020
	Electrical:

	 	460/3
	HP:

	 	40
	Belts:

	 	(2) CX136
	Filters:

	 	(4) 12x24 bag filters
	 

	 	(12) 24x24 bag filters
	 

	 	Auto roll poly pre filters 
	 
	 	 
	Tag No:

	 	AC-4 
	Make:

	 	Trane
	Type No:

	 	AAPA39BFO
	Serial No:

	 	A88J12001
	Electrical:

	 	460/3
	HP:

	 	30
	Belts:

	 	(2) CX136
	Filters:

	 	(4) 12x24 bag filters
	 

	 	(12) 24x24 bag filters 
	 

	 	Auto roll poly pre filters 
	 
	 	 
	Tag No:

	 	AC-5 
	Make:

	 	Trane
	Type No:

	 	Master DL 3109-0032-27
	Serial No:

	 	K84G35000
	Electrical:

	 	460/3
	HP:

	 	15
	Belts:

	 	(2) B116
	 
	 	 
	Tag No:

	 	AC-6 
	Make:

	 	Trane
	Type No:

	 	Master DL 3109-0032-33
	Serial No:

	 	K84G35001
	Electrical:

	 	460/3
	HP:

	 	30
	Belts:

	 	(2) CX136
	Filters:

	 	(4) 12x24 bag filters
	 

	 	(12) 24x24 bag filters
	 

	 	Auto roll poly pre filters 
	 
	 	 
	Tag No:

	 	AC-7 
	Make:

	 	Trane
	Type No:

	 	Master DL 3109-0032-33
	Serial No:

	 	K84G35002
	Electrical:

	 	460/3
	HP:

	 	30
	Belts:

	 	(2) CX136






H-5









 






	 	 	 
	Filters:

	 	(4) 12x24 bag filters
	 

	 	(12) 24x24 bag filters 
	 

	 	Auto roll poly pre filters 
	 
	 	 
	Tag No:

	 	AC-8 
	Make:

	 	Trane
	Type No:

	 	Master DL 3109-0032-33
	Serial No:

	 	K84G35003
	Electrical:

	 	460/3
	HP:

	 	30
	Belts:

	 	(2) CX136
	Filters:

	 	(4) 12x24 bag filters
	 

	 	(12) 24x24 bag filters
	 

	 	Auto roll poly pre filters
	 
	 	 
	Tag No:

	 	HV #1 
	Make:

	 	Trane
	Type No:

	 	Unknown
	Serial No:

	 	UHV84H44306
	Electrical:

	 	460/3
	Belts:

	 	(2) A-78
	Comments:

	 	Coil and valve bad.
	Coil Make:

	 	The Wing Company
	Size No:

	 	C-60 
	No:

	 	24 251
	GPM:

	 	20
	 
	 	 
	Tag No:

	 	HV #2
	Make:

	 	Trane
	Type No:

	 	Unknown
	Serial No:

	 	UHV84H44306
	Electrical:

	 	460/3
	Belts:

	 	(2) A-78
	Coil Make:

	 	The Wing Company
	Size No:

	 	C-60 
	No:

	 	24 251
	GPM:

	 	20






Boiler Room




	 	 	 
	Tag No:

	 	Boiler #1 
	Make:

	 	Mohawk
	Model No:

	 	4-5-751L
	Serial No:

	 	9386
	BTU:

	 	6.3 MBH
	 
	Tag No:

	 	Boiler #2 
	Make:

	 	Mohawk
	Model No:

	 	4-5-751L
	Serial No:

	 	9387
	BTU:

	 	6.3 MBH
	 
	 	 
	Tag No:

	 	Boiler Room Unit Heater #1 
	Make:

	 	Trane
	Model No:

	 	Unknown






H-6









 






	 	 	 
	Tag No:

	 	Boiler Room Unit Heater #2
	Make:

	 	Trane
	Model No:

	 	Unknown






Miscellaneous Equipment




	 	 	 
	Tag No:

	 	Chiller 1
	Make:

	 	Trane
	Model No:

	 	RTAA3404XN01A3D0BF
	Serial No:

	 	U97L06650
	Electrical:

	 	460/3
	 
	 	 
	Tag No:

	 	EF-8 
	Make:

	 	Unknown
	Model No:

	 	Unknown
	Electrical:

	 	460/3
	Belts:

	 	(1) AP37
	 
	 	 
	Tag No:

	 	EF-14 
	Make:

	 	New York Blower
	Model No:

	 	Z-8834-110
	Size:

	 	153
	Electrical:

	 	460/3
	Belts:

	 	(1) A40







H-7









 








EXHIBIT “I”

to Agreement of Lease by and between

9965 FEDERAL DRIVE, LLC, Landlord

and THE SPECTRANETICS CORPORATION, Tenant




JANITORIAL SPECIFICATIONS



Listed below are the cleaning specifications for all tenants at 9965 Federal Drive



Janitorial services are to be provided Monday through Friday in and about the premises.




General Office and Floor Areas





	A.	 	Damp mop all stone, ceramic tile, terrazzo and other types of unwaxed flooring.
	 
	B.	 	Sweep all vinyl, asphalt, rubber and similar types of flooring using an approved
chemically-treated cloth.
	 
	C.	 	Vacuum all traffic areas nightly. Sweep all private stairways and vacuum if carpeted.
	 
	D.	 	Hand dust and wipe clean with damp or chemically treated cloth all furniture, file cabinets,
fixtures, window sills, convector enclosure tops and wash said sills and tops if necessary.
	 
	E.	 	Dust all telephones.
	 
	F.	 	Dust all chair rails, trim, etc.
	 
	G.	 	Remove all gum and foreign matter on sight. Spot clean resilient floor as necessary.
	 
	H.	 	Empty and clean all waste receptacles and remove wastepaper and water materials to a
designated area.
	 
	I.	 	Damp dust interiors of all waste disposal receptacles.
	 
	J.	 	Wash clean all water fountains and water coolers
	 
	K.	 	Clean all glass furniture tops.
	 
	L.	 	Remove hand marks on elevator hatchways doors.
	 
	M.	 	Wipe clean all bright work
	 
	N.	 	Adjust venetian blinds to uniform standard.
	 
	O.	 	Cleaning of private toilet rooms and shower rooms and shampooing of carpets are not included
in these specifications and will be provided by Landlord at Tenant’s request at Landlord’s
average hourly rate.
	 
	P.	 	Any area designated as a vending area will be kept free from spillage and damp mopped daily.
	 
	Q.	 	Cleaning operations are to be scheduled so that an absolute minimum of lights are to be left
on at all times. Upon completion of the cleaning, all lights must be turned off.










I-1









 










Periodic





	A.	 	Hand dust all door louvers and other ventilating louvers within reach once per week.
	 
	B.	 	Dust all baseboards once per week.
	 
	C.	 	Remove finger marks from all painted surfaces near light switches, entrance doors, etc., once
per week.
	 
	D.	 	Dust all lamp shades weekly.
	 
	E.	 	Dust all picture frames, charts and similar hangings quarterly which are not reached in
nightly cleaning.
	 
	F.	 	Dust all vertical surfaces such as walls, partitions, doors and other surfaces not reached in
nightly cleaning four times per year.
	 
	G.	 	Dust exterior of lighting fixtures quarterly.
	 
	H.	 	Dust all venetian blinds quarterly and wash annually.
	 
	I.	 	Dust quarterly all air conditioning louvers, grills, etc., not reached in nightly cleaning.
	 
	J.	 	Wash telephones monthly.
	 
	K.	 	Dust clothes closets, shelving and coat racks every two weeks.





Specific Office and Floor Areas scheduled above




“TENANT
OFFICES”


Empty all trash receptacles and replace liners as necessary

Remove all collected trash to designated area

Empty and damp wipe ashtrays

Dust all furniture, fixtures, equipment and accessories

Spot clean all horizontal and vertical surfaces removing fingerprints, smudges and stains

Dust all surfaces above normal reach including sills, ledges,
moldings, shelves, door frames, pictures and vents.

Dust all chair and table legs and rungs, baseboards, ledges, moldings, and other low reach areas.

Spot clean all partition glass

Vacuum all carpeted traffic lane areas

Fully vacuum all carpets from wall to wall

Using approved spotter, spot clean carpeted area

Dust all venetian blinds




“TENANT OFFICE AISLE WAYS”


Vacuum all carpeted traffic lane areas

Fully vacuum all carpets from wall to wall

Using approved spotter, spot clean carpeted area

Spot clean all walls, light switches and doors

Dust all surfaces above normal reach including sills, ledges, moldings, shelves, door frames,

pictures and vents




“TENANT CORRIDORS”


Spot clean all horizontal and vertical surfaces removing fingerprints, smudges and stains.

Clean and polish all drinking fountains, removing water marks, scale, and splashes on sides and
on front.

Dust all horizontal surfaces.

Vacuum all carpeted traffic lane areas.

Fully vacuum all carpets from wall to wall.

Using approved spotter, spot clean carpeted areas.




I-2









 





Dust mop all hard surface floors with treated dust mop.

Mop all stains and spills, especially coffee and drink spills.

Dust interior of fire extinguisher cabinets, fire extinguishers, and clean both sides of cabinet
Glass – Weekly.




“TENANT
RESTROOMS”

Refill dispensers, empty trash, clean and sanitize all restroom fixtures, wipe all counters, tile
walls clean mirrors, wipe chrome, spot wipe partitions, sweep and damp mop floors using a
germicidal cleaner.

Dust and clean all return air vents

Wash all restroom partitions on both sides

Machine scrub all restrooms floors using germicidal detergent.

Clean both sides of all doors




“TENANT EXECUTIVE KITCHEN/LUNCH ROOMS”


Empty all trash receptacles and replace liners as necessary.

Remove all collected trash to designated area.

Empty and damp wipe ashtrays.

Dust all horizontal surfaces.

Spot clean all horizontal and vertical surfaces removing fingerprints, smudges and stains.

Clean and sanitize all sinks and wipe dry.

Damp clean and sanitize table tops.

Dust mop all hard surface floors with treated dust mop.

Mop all stains and spills, especially coffee and drink spills.




“TENANT STAIRS”


Vacuum stairs, dust railings, ledges and spot clean.



“COPY/STORAGE ROOMS/OTHER ROOMS”


Empty all trash receptacles and replace liners as necessary

Remove all collected trash to designated area

Spot clean all walls, light switches and doors

Dust mop all hard surface floors with treated dust mop

Mop all stains and spills, especially coffee and drink spills

Clean and disinfect shower stalls and doors

Clean and disinfect exercise equipment




“FREIGHT ELEVATOR LOBBIES”


Remove all collected trash to designated area

Spot clean all horizontal and vertical surfaces removing fingerprints, smudges and stains

Dust mop all hard surface floors with treated dust mop

Mop all stains and spills, especially coffee and drink spills




“STAIRWELLS”


Police stairs and pick-up litter

Dust mop stairs, dust railings, ledges and spot clean weekly

Damp mop stairs, dust railings, ledges and spot clean weekly




“JANITOR CLOSETS”


Clean and arrange all equipment in janitor closet each night and
empty vacuum cleaner bags, check
belts; sweep and spot mop floor





I-3









 





EXHIBIT “J”

to Agreement of Lease by and between

9965 FEDERAL DRIVE, LLC, Landlord

and THE SPECTRANETICS CORPORATION, Tenant




EQUIPMENT TO BE MAINTAINED BY TENANT




	 	 	 
	Description	 	Comments
	Fedal 88HS CNC Machining Center

	 	Purchased used $55,000
	 
	 	 
	2 each Bridgeport 2-J Manual Mill
	 	 
	 
	 	 
	Takisawa Engine Lathe

	 	Manual machine
	 
	 	 
	Hardige Tool Room Lathe

	 	Manual machine
	 
	 	 
	Beahm Tubing Shrink Machine

	 	Used to fabricate catheter “shafts”
	 
	 	 
	Steeger Braider

	 	Used to braid fine wire
	 
	 	 
	Harland Custom Catheter
	 	 
	Coating/Cure Machine

	 	New machine
	 
	 	 
	Heathway Custom Double Sided Fiber 

Draw Tower

	 	Phase 2, has yet to be built
	 
	 	 
	Custom Built Single Sided Fiber 

Draw Tower

	 	May or may not be installed
	 
	 	 
	2 each 30 HP Sullair Screw Air 

Compressors

	 	Complete with refrigerated after cooler and redundant filter systems
(phase 2 installation)
	 
	 	 
	1 each 10 HP Sullair Screw Air 

Compressor

	 	Complete with refrigerated after
cooler and redundant filter systems
(phase 1 installation)
	 
	 	 
	1 ETO 70 cu. Ft. sterilizer
	 	 
	 
	 	 
	1 preconditioning chamber
	 	 






 









 






EXHIBIT “K”

to Agreement of Lease by and between

9965 FEDERAL DRIVE, LLC, Landlord

and THE SPECTRANETICS CORPORATION, Tenant




AGREEMENT OF PURCHASE AND SALE




     THIS AGREEMENT OF PURCHASE AND SALE (the Agreement”) is made this ___day of
___, 200___(the “Effective Date”) by and between 9965 FEDERAL DRIVE, LLC, a Colorado
limited partnership (“Seller”) and THE SPECTRANETICS
CORPORATION a ___ corporation (“Buyer”).



W I T N E S S E T H:




     Seller is the owner of the Property (hereinafter defined). Seller desires to sell the
Property to the Buyer and Buyer desires to buy the Property from Seller pursuant to the terms and
conditions of this Agreement.



     NOW, THEREFORE, for good and valuable consideration, the sufficiency of which hereby is
acknowledged, Seller and Buyer agree as follows:



Article I.

Property; Purchase and Sale




     Seller hereby agrees to sell, and Buyer hereby agrees to buy, all of Seller’s right, title
and interest in the following property: (a) that parcel of real property (the “Land”), located
in El Paso County, Colorado more particularly described on Exhibit “A” attached to this
Agreement; (b) the buildings and other improvements located on the Land, being an office
building located at and known as 9965 Federal Drive, Colorado Springs (collectively, the
“Improvements”); (the Land and Improvements, are referred to herein, collectively, as the “Real
Property”); and (c) all fixtures, equipment, and other personal property in Seller’s possession
(both tangible and intangible, including, without limitation, to the extent assignable, all
promotional material, plans, drawings, surveys, warranties, trade names, logos, service marks,
licenses, permits and authorizations used or usable only in connection with the Real Property
and no other property of Seller or its affiliates, and any service and maintenance agreements
used or usable only with the Real Property and no other property of Seller or its affiliates)
owned by Seller and contained in or related to the Improvements, excluding, however, only those
proprietary materials of Seller or Corporate Office Properties Trust or any of its affiliates
or subsidiaries (the “Personal Property”) (collectively, the Real Property and the Personal
Property are sometimes referred to herein as the “Property”).



Article II.

Purchase Price and Deposits




     2.1 Purchase Price and Deposits. The purchase price which the Buyer agrees to pay and
the Seller agrees to accept for the Seller’s interest in the Property shall be the sum of [insert
purchase price as set forth in Landlord’s Offer Notice in accordance with Section 57 of the Lease]
($___) (hereinafter referred to as the “Purchase Price”), subject to adjustment as
provided in Article V hereof, payable as follows:



     (a) An earnest money deposit of [insert Initial Deposit as set forth in Landlord’s Offer
Notice in accordance with Section 57 of the Lease] ($___), in cash



K-1









 




(together with
accrued interest, the “Deposit”) to be deposited with Land Title Guarantee Company (the “Escrow
Agent”) within three (3) days of the execution hereof by both parties, such amount to be held in
escrow and deposited in an interest-bearing account.




     (b) The balance of the Purchase Price shall be paid at time of Closing by Federal wire
transfer, with the transfer of funds to Seller to be completed not later than 2:00 p.m. Eastern
Standard Time on the day of the Closing.



     The Deposit shall be paid to Seller at the Closing as a credit against the Purchase Price.
Buyer shall provide the Escrow Agent with its tax identification number, and all interest shall be
for Buyer’s account for tax purposes.



     2.2 Escrow Agent.



     (a) This Agreement shall be delivered to the Escrow Agent immediately after both parties have
executed it. The Escrow Agent shall retain one copy of this Agreement and immediately deliver two
copies hereof to each of Buyer and Seller.



     (b) The Escrow Agent shall deliver the Deposit held hereunder to Seller concurrent with
Closing in part payment of the Purchase Price or the Seller or Buyer at such other time, as either
Seller or Buyer becomes entitled to the Deposit as provided in this Agreement.



Article III.

Failure to Close




     3.1 Buyer’s Default. If Seller has complied with all of the covenants and conditions
contained in this Agreement and is ready, willing and able to convey its interest in the Property
in accordance with this Agreement and Buyer fails to consummate this Agreement and take title, then
the parties hereto recognize and agree that the damages that Seller will sustain as a result
thereof will be substantial, but difficult if not impossible to ascertain. Therefore, the parties
agree that, in the event of Buyer’s default, Seller shall, as its sole remedy, be entitled to
retain the Deposit as liquidated damages, and not a penalty, and neither party shall have any
further rights or obligations with respect to the other under this Agreement, except for the
Surviving Covenants.



     3.2 Seller’s Default. In the event that Buyer has complied with all of the covenants
and conditions contained herein and is ready, willing and able to take title to the Property in
accordance with this Agreement, Buyer’s sole and exclusive remedy with respect to any default of
Seller under this Agreement shall be to terminate this Agreement by written notice to Seller, in
which event, the Deposit shall be returned to Buyer. Buyer hereby waives any right to recover from
Seller any damages of any nature whatsoever, including actual or consequential damages, due to,
arising out of, or relating to any default by Seller of any of its obligations under this
Agreement.



Article IV.

Closing and Transfer of Title




     4.1 Closing. The parties hereto agree to conduct a closing of this sale (the
“Closing”) on or before 5:00 p.m. on the date that is forty-five (45) days following the Effective
Date (the “Closing Date”) by the escrow method with Escrow Agent, or at such earlier time or other
place as may be agreed upon by the parties hereto.



K-2









 





     4.2 Closing Procedure. At Closing, Seller shall execute and deliver or cause to be
delivered



     (a) a Deed in the form attached hereto as Exhibit “B”, proper for recording, conveying
Seller’s interest in the Real Property to Buyer, subject, however, to (i) covenants, restrictions
and matters of record, (ii) matters that would be shown by an accurate survey, (iii)
matters otherwise known to Buyer, (iv) taxes not yet due and payable, and (vi) any
encumbrances created or permitted by the terms of this Agreement or the existing lease from Seller
to Buyer of the Real Property (the “Existing Lease”);



     (b) a Bill of Sale and General Assignment in the form attached hereto as Exhibit “C”,
dated as of the date of Closing conveying to Buyer any and all Personal Property;



     (c) an Assignment of Contracts in the form attached hereto as Exhibit “D”, dated the
Closing Date, assigning all of Seller’s right, title and interest in and to all service and
maintenance contracts relating to the Property which are in force and effect as of the Closing
Date, if any;



     (d) an affidavit that Seller is not a “foreign person” in the form attached as Exhibit
“E”; and



     (e) to the extent in the possession of Seller and not already delivered to Buyer, maintenance
records, equipment manuals and plans and specifications for the Improvements; and



     4.3 Buyer’s Performance. At the Closing, Buyer will cause the Purchase Price to be
delivered to the Escrow Agent, will execute and deliver the Bill of Sale and such other documents
as the Escrow Agent may reasonable require.



Article V.

Title Contingency; Service Contracts




     5.1 Title Contingency. As of the Effective Date, Seller shall provided Buyer a copy
of its most recent title policy along with the most recent survey Seller has in its possession (the
“Original Title Report”). Within fifteen (15) days following the Effective Date, Buyer shall
provide Seller with an updated title report, including all accompanying documents (the
“Title Report”) and Buyer’s objections thereto, such objections stating all of Buyer’s
objections with specificity and being limited to matters that (1) did not appear on the Original
Title Report or (2) would render title to the Real Property unmerchantable. This contingency shall
be deemed satisfied or waived if such written notice of objection is not received by Seller on or
before the time required in the preceding sentence. If Buyer requests extended coverage, such
coverage shall be at the sole cost and expense of the Buyer and not the Seller, and satisfaction
thereof shall not delay Closing. Upon receipt of such notice, Seller may, but shall not be
obligated to, cure such objections. If Seller cures such objections within fifteen (15) days, or,
if such objections are such that they cannot be cured within fifteen (15) days but Seller has
commenced curing such objections and thereafter diligently proceeds to perfect such cure, then this
Agreement shall continue in full force and effect and the Closing Date shall be adjusted
accordingly. If Seller is unable or chooses not to cure such objections by the Closing Date, then
Buyer may either accept title as may be given as aforesaid without reduction or abatement in
purchase price or terminate this Agreement, in which case Seller shall instruct the Escrow Agent to
return the Deposit to Buyer, and neither party shall have any further obligations hereunder except
for the Surviving Covenants.



     5.2 Termination of Service Contracts. Seller shall terminate, effective as of
Closing, at no charge to Buyer, all service contracts in effect as of the Effective Date that are
rejected pursuant to written notice delivered by Buyer to Seller within fifteen (15) days following the



K-3









 







Effective Date. Failure to notify Seller in a timely manner shall be deemed acceptance of the
Service Contracts.



Article VI.

Loss due to Casualty or Condemnation




     6.1 Loss due to Condemnation. In the event of a condemnation occurring after the
Effective Date and prior to the Closing Date, if all or a Substantial Portion of the Real Property
is taken, either party may, upon written notice to the other party given within ten (10) days of
receipt of notice of such event, cancel this Agreement, in which event Seller shall instruct the
Escrow Agent to return the Deposit to Buyer, this Agreement shall terminate and neither party shall
have any rights or obligations hereunder except for the Surviving Covenants. In the event that
neither party elects to terminate, or if the condemnation affects less than a Substantial Portion
or does not affect the building or parking area, then this Agreement shall remain in full force and
effect, and Seller shall be entitled to all monies received or collected by reason of such
condemnation prior to closing. In such event, the transaction hereby contemplated shall close in
accordance with the terms and conditions of this Agreement except that there will be an abatement
of the Purchase Price equal to the amount of the net proceeds, less costs and attorney’s fees,
which are received by Seller by reason of such condemnation prior to the Closing Date. If the
condemnation proceeding shall not have been concluded prior to the Closing Date, then there shall
be no abatement of the Purchase Price and Seller shall assign any interest it has in the pending
award to Buyer. For purposes of this Section 7.1, a “Substantial Portion” shall mean a
condemnation of any portion of (i) the building or (ii) the parking lot which materially affects
the number of parking spaces or ingress/egress from the parking lot.



     6.2 Loss due to Casualty. In the event of Substantial Loss or Damage to the
Improvements by fire or other casualty (not resulting from negligent act of Buyer) which fire or
casualty shall have occurred after the date of this Agreement, either party may, upon written
notice to the other party given within ten (10) days of receipt of notice of such event, cancel
this Agreement in which event Seller shall instruct the Escrow Agent to return the Deposit to Buyer
and this Agreement shall terminate and neither party shall have any rights or obligations hereunder
except for the Surviving Covenants. In the event that neither party elects to terminate, or if the
casualty results in less than Substantial Loss or Damage, then this Agreement shall remain in full
force and effect and Seller shall be entitled to all insurance proceeds received or collected by
reason of such damage or loss, whereupon the transaction hereby contemplated shall close in
accordance with the terms and conditions of this Agreement except that there will be an abatement
of the Purchase Price equal to the amount of the net proceeds (including reductions for costs and
attorney’s fees) which are received by Seller as a result of such damage or loss, provided that
such abatement will be reduced by the amount expended by Seller in accordance with Article VIII
hereof for restoration or preservation of the Property following the casualty. Alternatively,
Buyer may, in its discretion, have Seller repair or replace the damaged Property, and there shall
be no abatement of the Purchase Price in such case. However, Buyer shall not be entitled to
require Seller to effect repair or replacement unless the loss is entirely covered by insurance
(except for any applicable deductible) and the time necessary to complete the repair or replacement
is estimated not to extend beyond the Outside Closing Date. For purposes of this Section 7.2,
“Substantial Loss or Damage” shall mean loss or damage, the cost for repair of which equals ten
percent (10%) or more of the Purchase Price.



Article VII.

Maintenance of the Property




     Between the Effective Date and the Closing Date, Seller and Buyer shall maintain the Property
as required by the terms of the Existing Lease. During the period prior to the Closing Date and
after the Effective Date, Seller shall not enter into any new contract for the operation of the
Property without Buyer’s consent unless the same may be cancelled on the Closing Date



K-4









 







without cost
to Buyer. Any such proposed contract shall be reviewed and approved or rejected within five (5)
business days after receipt thereof by Buyer. Failure to approve or reject such proposed contract
within such period shall be deemed approval.



Article VIII.

1. Conditions Precedent to Closing




     8.1 Buyer’s Conditions. Buyer shall not be obligated to close under this Agreement
unless each of the following conditions shall be satisfied or waived by Buyer prior to the Closing
Date (except in the case of the 9.1(a) which shall be satisfied or waived prior to the end of the
Feasibility Period):



          (a) Accuracy of Representations. The representations and warranties made by Seller in this
Agreement shall be true and correct in all material respects as of the Closing Date; and




          (b) No Default. Seller shall not be in default hereunder and shall have complied in all
material respects with its obligations under this Agreement.




     8.2 Seller’s Conditions. Seller shall not be obligated to close under this Agreement
unless each of the following conditions shall be satisfied or waived by Seller prior to the Closing
Date:




          (a) Accuracy of Representations. The representations and warranties made by Buyer in this
Agreement shall be true and correct in all material respects as of the Closing Date; and




          (b) No Default. Buyer shall not be in default hereunder and shall have complied in all
material respects with its obligations under this Agreement.




Article IX.

Broker




     Buyer and Seller represent to each other that they have dealt with no agent or broker who in
any way has participated as a procuring cause of the sale of the Property other than ___
(“Seller’s Broker”) and ___ (“Buyer’s Broker”). Buyer and Seller each agree to defend,
indemnify and hold harmless the other for any and all judgments, costs of suit, attorneys’ fees,
and other reasonable expenses which the other may incur by reason of any action or claim against
the other on the basis of the acts of the indemnifying party arising out of this Agreement or any
subsequent sale of the Property to Buyer. Seller shall pay Seller’s Broker pursuant to the terms
of a separate written agreement by and between Seller and Seller’s Broker. Buyer shall pay Buyer’s
Broker pursuant to the terms of a separate written agreement by and between Buyer and Buyer’s
Broker. The provisions of this Article IX shall survive the Closing and any termination of this
Agreement.



Article X.

Representations and Warranties




     10.1 Limitations on Representations and Warranties. Buyer hereby agrees and
acknowledges that, except as set forth in Section 10.2 below, neither Seller nor any agent,
attorney, employee or representative of Seller has made any representation whatsoever regarding the
subject matter of this sale, or any part thereof, including (without limiting the generality of the
foregoing) representations as to the physical nature or condition of the Property or the



K-5









 







capabilities thereof, and that Buyer, in executing, delivering and/or performing this Agreement,
does not rely upon any statement and/or information to whomever made or given, directly or
indirectly, orally or in writing, by any individual, firm or corporation. Buyer agrees to take the
Real Property, Improvements and the Personal Property “as is,” as of the date hereof, reasonable
wear and tear, and minor damage caused by the removal of any personal property or fixtures not
included in this sale, excepted. EXCEPT AS SET FORTH IN SECTION 10.2 BELOW,
SELLER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL CONDITION OF THE PROPERTY OR
THE SUITABILITY THEREOF FOR ANY PURPOSE FOR WHICH BUYER MAY DESIRE TO USE IT. SELLER HEREBY
EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE AND
ANY OTHER WARRANTIES OR REPRESENTATIONS AS TO THE PHYSICAL CONDITION OF THE PROPERTY. BUYER, BY
ACCEPTANCE OF THE DEED, AGREES THAT IT HAS INSPECTED THE PROPERTY AND ACCEPTS SAME “AS IS” AND
“WITH ALL FAULTS”.



     10.2 Representations and Warranties. Seller makes the following representations and
warranties and agrees that Buyer’s obligations under this Agreement are conditioned upon the truth
and accuracy of such representations and warranties, both as of this date and as of the Closing
Date:



     (a) Seller has the power and authority to enter into this Agreement and convey Seller’s
interest in the Property to Buyer.



     (b) To Seller’s knowledge, Seller has received no written notice of any existing or pending
litigation, administrative proceeding, violation of law or condemnation or sale in lieu thereof,
that would materially affect any portion of the Real Property, except as noted on Exhibit
“F” attached hereto, and except for routine collection matters and bankruptcy claims of Seller.



     (c) There are no attachments or executions affecting the Property, general assignments for the
benefit of creditors, or voluntary or involuntary proceedings in bankruptcy, pending or, to
Seller’s knowledge, threatened against Seller.



     (d) No approvals or consents by third parties or to Seller’s knowledge, governmental
authorities are required in order for Seller to consummate the transactions contemplated hereby.



     (e) Seller is not a foreign person within the meaning of Section 1445(f)(3) of the Internal
Revenue Code of 1986.



     10.3 Seller’s Knowledge. Whenever the term “to Seller’s knowledge” is used in this
Agreement or in any representations and warranties given to Buyer at Closing, such knowledge shall
be the actual knowledge of Roger A. Waesche, Jr. (the “Key Personnel”). Seller shall have no duty
to conduct any further inquiry in making any such representations and warranties, and no knowledge
of any other person shall be imputed to the Key Personnel.



     10.4 Buyer’s Warranties. Buyer represents and warrants to Seller that:



     (a) Buyer has the power and authority to enter into this Agreement and to purchase the
Property;



     (b) No approvals or consents by third parties or, to the best of Buyer’s knowledge, by
governmental authorities are required in order for Buyer to consummate the transactions
contemplated hereby.



     (c) To Buyer’s knowledge, Buyer has received no written notice of any existing or pending
litigation, administrative proceeding, violation of law or condemnation or sale in lieu



K-6









 







thereof,
that would materially affect any portion of the Real Property, except as noted on Exhibit
“F” attached hereto.



     (d) There are no attachments or executions affecting the Property, general assignments for the
benefit of creditors, or voluntary or involuntary proceedings in bankruptcy, pending or, to Buyer’s
knowledge, threatened against Buyer.



     (e) Buyer is currently in compliance with and shall at all times prior to Closing remain in
compliance with the regulations of the Office of Foreign Assets Control of the
Department of the Treasure (“OFAC”) (including those named in OFAC’s Specially Designated and
Blocked Persons list) and any statute, executive order (including the September 24, 2001, Executive
Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit,
or Support Terrorism), or other governmental action and is not and will not engage in any dealings
or transactions or be otherwise associated with such persons or entities.



     10.5 Survival. All representations and warranties contained in Section 10.2 and 10.4
shall not be Surviving Covenants, as defined in Section 15.13, but shall survive the
Closing of this transaction only for the period of one (1) year from the Closing Date (and only as
to the status of facts as they exist as of the Closing, it being understood that Seller makes no
representations or warranties which would apply to changes or other matters occurring after the
Closing) and no action on such representations and warranties may be commenced after the expiration
of such one (1) year period.



Article XI.

Liability of Seller




     Neither Seller nor any partner of Seller nor any independent property manager which Seller has
hired to manage the Property shall, by entering into this Agreement, become liable for any costs or
expenses incurred by Buyer subsequent to the Closing Date, including any labor performed on, or
materials furnished to, the Real Property, or for any leasing commissions or other fees or
commissions due for renewals or extensions of existing leases or otherwise, or for compliance with
any laws, requirements or regulations of, or taxes, assessments or other charges thereafter due to,
any governmental authority, or for any other charges or expenses whatsoever pertaining to the
Property or to the ownership, title, possession, use, or occupancy of the Property, (including,
without limitation, any costs of compliance with presently-existing and future environmental laws,
any environmental remediation costs, and any costs of, or awards of damages for, damage to the
environment, to natural resources, or to any third party, it being the intent of this Agreement, as
between Buyer and Seller, to shift all such liability to Buyer, except for any liability of Seller
under the provisions of Article X hereof), and Buyer hereby agrees to defend, indemnify and hold
Seller, Seller’s partners and/or shareholders and any independent property manager hired by Seller,
harmless from any such liability for such costs and expenses incurred by Seller subsequent to the
date of Closing.



     Except for the representations and warranties contained in Sections 10.2 and 10.4 (the limit
of which is set forth in Section 10.5), and except for the Surviving Covenants, by proceeding to
Closing with respect to the Property, Buyer shall be deemed to have (i) acknowledged that all
conditions precedent to the performance of each party’s obligations under this Agreement have been
satisfied and (ii) except as set forth in any of the documents provided in connection with Closing,
waived any claims with respect to any matters known to Buyer as of the Closing Date.



Article XII.

Assignment




     This Agreement may not be assigned or transferred by Buyer to any entity other than an
affiliate without prior written consent of Seller. Buyer shall notify Seller of an assignment to
any



K-7









 







affiliate of Buyer. No assignment shall relieve Buyer of any of its obligations under this
Agreement.



Article XIII.

Notices



All notices hereunder or required by law shall be sent via United States Mail, postage prepaid,
certified mail, return receipt requested, or via any nationally recognized commercial overnight
carrier with provisions for receipt by fax with confirmation of delivery addressed to the parties
hereto at their respective addresses set forth below or as they have theretofore specified by
written notice delivered in accordance herewith:




	 	 	 
	BUYER:

	 	THE SPECTRANETICS CORPORATION
	 

	 	Attn:
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	with a copy to:
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	SELLER:

	 	9965 FEDERAL DRIVE, LLC
	 

	 	c/o Corporate Office Properties Trust
	 

	 	6711 Columbia Gateway Drive, Suite 300
	 

	 	Columbia, Maryland 21046
	 

	 	Attn: Roger A. Waesche, Jr.
	 

	 	Fax: 443-285-7650
	 

	 	Email: roger.waesche@copt.com
	 
	 	 
	with a copy to:

	 	9965 FEDERAL DRIVE, LLC
	 

	 	c/o Corporate Office Properties Trust
	 

	 	6711 Columbia Gateway Drive, Suite 300
	 

	 	Columbia, Maryland 21046
	 

	 	Attn: Stephanie L. Shack, Esquiare
	 

	 	Fax: 443-285-7652
	 

	 	Email: stephanie.shack@copt.com





Delivery will be deemed complete upon actual receipt or refusal to accept delivery.




Article XIV.

Expenses




     Seller shall pay its own attorney’s fees and expenses, one-half of any transfer taxes and
recordation stamp taxes, and one-half of the Escrow Agent’s escrow fee. All other costs and
expenses related to the transaction or this Agreement, including but not limited to recording
charges, survey costs, title insurance costs, Buyer’s attorneys’ fees and expenses, one-half of any
transfer taxes and recordation stamp taxes, one-half of the Escrow Agent’s escrow fee, any other
taxes, and any extra matters requested with respect to the Title Report shall be paid by Buyer.



K-8









 





Article XV.

Miscellaneous




     15.1 Successors and Assigns. All of the terms and conditions of this Agreement are
hereby made binding upon the executors, heirs, administrators, successors and permitted assigns of
both parties hereto.



     15.2 Gender. Words of any gender used in this Agreement shall be held and construed
to include any other gender, and words in the singular number shall be held to include the plural,
and vice versa, unless the context requires otherwise.



     15.3 Captions. The captions in this Agreement are inserted only for the purpose of
convenient reference and in no way define, limit or prescribe the scope or intent of this Agreement
or any part hereof.



     15.4 Construction. No provision of this Agreement shall be construed by any Court or
other judicial authority against any party hereto by reason of such party’s being deemed to have
drafted or structured such provisions.



     15.5 Entire Agreement. This Agreement constitutes the entire contract between the
parties hereto and there are no other oral or written promises, conditions, representations,
understandings or terms of any kind as conditions or inducements to the execution hereof and none
have been relied upon by either party.



     15.6 Recording. The parties agree that this Agreement shall not be recorded. If
Buyer causes this Agreement or any notice or memorandum thereof to be recorded, this Agreement
shall be null and void at the option of the Seller.



     15.7 No Continuance. Buyer acknowledges that there shall be no assignment, transfer
or continuance of any of Seller’s insurance coverage or of the property management contract.



     15.8 Time of Essence. Time is of the essence in this transaction. If any of the
dates contemplated herein as deadlines or expiration dates should fall on a Saturday, Sunday or
national holiday, such deadline or expiration date shall be deemed to fall upon the next business
day.



     15.9 Original Document. This Agreement may be executed by both parties in
counterparts in which event each shall be deemed an original.



     15.10 Governing Law. This Agreement shall be construed, and the rights and
obligations of Seller and Buyer hereunder, shall be determined in accordance with the laws of the
State of Colorado.



     15.11 Acceptance of Offer. This Agreement constitutes Seller’s offer to sell to Buyer
on the terms set forth herein and must be accepted by Buyer by signing five originals hereof and
delivering them to the Escrow Agent as set forth in Article II hereof. If Buyer has not so
accepted this Agreement, then this Agreement and the offer represented hereby shall automatically
be revoked and shall be of no further force or effect.



     15.12 Confidentiality. Buyer and Seller agree that all documents and information
concerning the Property delivered to or obtained by Buyer, the subject matter of this Agreement,
and all negotiations will remain confidential. Buyer and Seller will disclose such information
only to those parties required to know it, including, without limitation, employees of either of
the parties, consultants and attorneys engaged by either of the parties, and prospective tenants or
prospective and existing investors and lenders. Buyer shall use care and effort to avoid



K-9









 







disrupting the relationship between Seller and its tenants and to avoid unnecessarily alarming
existing tenants with respect to Buyer’s possible plans for the Property.



     15.13 Surviving Covenants. Notwithstanding any provisions hereof to the contrary, the
provisions of Articles IX, XI and XIV, and Sections 15.12, 15.14 and 15.15 (collectively, the
“Surviving Covenants”) shall survive the Closing and any termination of this Agreement.



     15.14 Waiver of Jury Trial. THE PARTIES HERETO SHALL, AND THEY HEREBY DO, WAIVE TRIAL
BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST
THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE
RELATIONSHIP OF SELLER AND BUYER, OR ANY CLAIM FOR INJURY OR DAMAGE IN CONNECTION WITH THIS
AGREEMENT OR THE PROPERTY.



     15.15 Attorney’s Fees. In the event of any litigation arising out of this Agreement,
the prevailing party shall be entitled to receive all costs and expenses incurred in connection
therewith, including but not limited to, reasonable attorney’s fees, expert’s fees, and
in-house counsel expenses.



     15.16 Secondary Contracts. Buyer acknowledges and agrees that Seller shall be
entitled to continue to negotiate with other parties for the sale of the Property, and may enter
into secondary letters of intent or secondary contracts provided such documents contain clauses
that would invalidate such secondary letters of intent or contracts if the transaction contemplated
by this Agreement is consummated.



     15.17 Tax Deferred Exchange. Either party may treat the transactions contemplated by
this Agreement as a tax-deferred exchange pursuant to Section 1031 of the Internal Revenue Code
(the “Exchange Transaction”). At the request of either party (the “Requesting Party”), the other
party (the “Non-Requesting Party”) shall cooperate with the Requesting Party to effect the Exchange
Transaction. To implement such Exchange Transaction, the Requesting Party may, upon written notice
to the Non-Requesting Party, assign the Requesting Party’s rights, but not its obligations, under
this Agreement to a third party designated by the Requesting Party to act as a qualified
intermediary (as such phrase is defined in applicable Internal Revenue Service regulations), and
the Non-Requesting Party agrees to perform its obligations under this Agreement as to any such
qualified intermediary. Notwithstanding the foregoing, the Non-Requesting Party shall not be
required, solely for the purpose of the Non-Requesting Party’s cooperation related to the
Requesting Party’s Exchange Transaction, to incur any other cost, expense, obligation or liability
whatsoever. The Requesting Party shall in all events be responsible for all incremental costs and
expenses related to the Exchange Transaction, and shall fully indemnify, defend and hold the
Non-Requesting Party harmless from and against any and all liability, claims, damages, expenses
(including reasonable attorneys’ fees), proceedings and causes of actions of any kind or nature
whatsoever actually incurred by the Non-Requesting Party and solely attributable to such Exchange
Transaction. The provisions of the immediately preceding sentence shall survive Closing. In no
event whatsoever shall the Closing be delayed because of any delay relating to the Exchange
Transaction.



     15.19 Exhibits. The following Exhibits are hereby incorporated into this Agreement by
reference as if set forth fully herein:


 |

     Exhibit “A” Real Property



     Exhibit “B” Form of Deed



     Exhibit “C” Bill of Sale



     Exhibit “D” Assignment of Contracts



     Exhibit “E” FIRPTA



     Exhibit “F” Exceptions



K-10









 





[SIGNATURE PAGES FOLLOW]




K-11









 








EXECUTED BY BUYER this                      day of                                         , 200__.




	 	 	 	 	 	 	 	 	 
	ATTEST: 
	 	 	 	BUYER:	 	 	 	 
	 
	 	 	 	 	THE SPECTRANETICS CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	 	(SEAL)	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	Title:	 	 






EXECUTED BY SELLER this                      day of                                         , 200__.




	 	 	 	 	 	 	 	 	 
	ATTEST:	 	 	 	SELLER:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	9965 FEDERAL DRIVE, LLC	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	 	(SEAL)	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Roger A. Waesche, Jr.	 	 
	 

	 	 	 	 	 	Executive Vice President	 	 






K-12









 





Receipt of original copies of this Agreement executed by Seller and Buyer is acknowledged this ___
day of ___, 200___.




	 	 	 	 	 	 	 	 	 
	 	 	 	 	ESCROW AGENT:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	LAND TITLE GUARANTEE COMPANY	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	 	(SEAL)	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	Title:	 	 






K-13









 






EXHIBIT A




REAL PROPERTY




[TO BE ATTACHED]




K-14









 





EXHIBIT B




[Form of Deed]

SPECIAL WARRANTY DEED




                         , a                     , (“Grantor”) whose street address is
___, in the City of                     , in the State of
___, for the consideration of Ten and no/100s Dollars ($10.00), in hand paid, hereby
sells and conveys to ___, a ___, (“Grantee”)
whose street address is ___, in the City of ___, in the
State of ___, the following real property in the County of ___and the
State of Colorado, more particularly described on Exhibit A attached hereto and
incorporated herein by this reference, with all of its appurtenances, and warrants the title
against all persons claiming under it, subject to the Permitted Exceptions listed on Exhibit
B attached hereto and incorporated herein by this reference.



     Signed this ___day of ___, 20___.



	 	 	 	 	 	 	 	 	 
	 	 	GRANTOR:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	,			 
	 	 	 	 	 	 	 
	 

	 	a	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 





	 	 	 	 	 
	STATE OF

	 	 	 	 )
	 

	 	 	 	 
	 

	 	 	 	 ) SS:
	COUNTY OF

	 	 	 	 )
	 

	 	 	 	 





     On ___, 20___, before me the undersigned, a Notary Public in and for said State,
personally appeared ___, as ___ of
___, a ___, personally known to me or proved to me on
the basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that she/he executed the same in her/his authorized capacity, and
that by her/his signature on the instrument, the entity upon behalf of which the person acted,
executed the instrument.


WITNESS my hand and official seal.



Signature:




	 	 	 
	 	 	 
	Name (typed or printed):

	 	 
	Commission Expires:
	 	 






K-15









 






EXHIBIT A — to Deed




Legal Description



The real property with a street address of 9965 Federal Drive., Colorado Springs, Colorado, more
particularly described as follows:




K-16









 








EXHIBIT B — to Deed




Permitted Exceptions




K-17









 





EXHIBIT C




BILL OF SALE AND GENERAL ASSIGNMENT




	 	 	 	 	 
	STATE OF

	 	 	 	 )
	 

	 	 	 	 
	 

	 	 	 	 )
	COUNTY OF

	 	 	 	 )
	 

	 	 	 	 





     Concurrently with the execution and delivery hereof, INSERT ASSIGNOR (“Assignor”), a
___ is conveying to INSERT ASSIGNEE, a ___(“Assignee”), by
Deed, that certain tract of land together with the improvements thereon (the “Property”) lying and
being situated in [___] County, ___ and being more particularly described in
Exhibit “A”, attached hereto and made a part hereof.



     It is the desire of Assignor to hereby assign, transfer, setover and deliver to Assignee all
furnishings, fixtures, fittings, appliances, apparatus, equipment, machinery and other items of
personal property, if any, affixed or attached to, or placed or situated upon, the Property, except
those not owned by Assignor, and any and all other incidental rights and appurtenances relating
thereto, all as more fully described below (such properties being collectively called the “Assigned
Properties”).



     NOW, THEREFORE, in consideration of other good and valuable consideration in hand paid by
Assignee to Assignor, the receipt and sufficiency of which are hereby acknowledged and confessed by
Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER and DELIVER to Assignee, its successors
and assigns, all of the Assigned Properties, without warranty (whether statutory, express or
implied), including, without limitation the following:



     1. All furnishings, fittings, equipment, appliances, apparatus, machinery fixtures and all
other personal property of every kind and character (both tangible and intangible), if any, owned
by Assignor and located in or on the Property;



     2. All of Assignor’s interest in and to all use, occupancy, building and operating permits,
licenses and approvals, if any, issued from time to time with respect to the Property or the
Assigned Properties;



     3. All of Assignor’s interest in and to all existing and assignable guaranties and warranties
(express or implied), if any, issued in connection with the construction, alteration and repair of
the Property and/or the purchase, installation and the repair of the Assigned Properties;



     4. All rights which Assignor may have to use any names commonly used in connection with the
Property, if any.



     5. All rights, which Assignor may have, if any, in and to any tenant data, telephone numbers
and listings, all master keys and keys to common areas, all good will, if any, and any and all
other rights, privileges and appurtenances owned by Assignor and related to or used in connection
with the existing business operation of the Property.



     ASSIGNOR MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL CONDITION OF THE PROPERTY
OR THE ASSIGNED PROPERTIES OR THE SUITABILITY THEREOF FOR ANY PURPOSE THAT ASSIGNEE MAY DESIRE TO
USE IT. ASSIGNOR HEREBY EXPRESSLY DISCLAIMS ANY WARRANTIES AS TO MERCHANTABILITY AND/OR FITNESS
FOR A PARTICULAR PURPOSE AND ANY



K-18









 







OTHER WARRANTIES OR REPRESENTATIONS AS TO THE PHYSICAL CONDITION
OF THE ASSIGNED PROPERTIES. ASSIGNEE ACKNOWLEDGES AND AGREES THAT
IT HAS INSPECTED THE ASSIGNED PROPERTIES AND ACCEPTS SAME IN THEIR PRESENT CONDITION, “AS IS”
AND “WITH ALL FAULTS.”



     Assignee, on behalf of itself and its successors and assigns, hereby agrees to assume and
perform all liabilities and obligations accruing under any of the agreements, warranties or other
items assigned hereunder, except for any liabilities having accrued prior to the date hereof.



     This document may be executed in any number of counterparts, each of which may be executed by
any one or more of the parties hereto, but all of which shall constitute one instrument, and shall
be binding and effective when all parties hereto have executed at least one counterpart.



     IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be executed as of the
___day of ___, 200___.



	 	 	 	 	 	 	 	 	 
	 	 	 	 	ASSIGNOR:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	INSERT ASSIGNOR	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	 	(SEAL)	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Roger A. Waesche, Jr.	 	 
	 

	 	 	 	 	 	Executive Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	ASSIGNEE:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	INSERT ASSIGNEE	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	 	(SEAL)	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	Title:	 	 






K-19









 






EXHIBIT D




ASSIGNMENT AND ASSUMPTION OF CONTRACTS




	 	 	 	 	 
	STATE OF

	 	 	 	 )
	 

	 	 	 	 
	 

	 	 	 	 )
	COUNTY OF

	 	 	 	 )
	 

	 	 	 	 





     This agreement is executed as of the ___day of ___, 200___, by INSERT SELLER.,
a ___(“Seller”), and ___(“Buyer”).



     Buyer is this day purchasing from Seller and Seller is conveying to Buyer the real property
described on Exhibit “A” attached hereto and made a part hereof together with all
improvements thereon and appurtenances thereto (herein called the “Property”). In connection with
its ownership and management of the Property, Seller has entered into the maintenance and service
contracts in effect on the date hereof, and listed and described on Exhibit “B” attached
hereto and made a part hereof (the “Contracts”). Seller desires to transfer and assign to Buyer
all of Seller’s right, title and interest in and to the Contracts.



     NOW, THEREFORE in consideration of Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Seller hereby
transfers and assigns to Buyer, without warranty, all right, title and interest of Seller in and to
the Contracts.



     Buyer hereby assumes all liabilities and obligations of the Seller under the Contracts arising
from and after the date hereof.



     It is specifically agreed that Seller does not hereby transfer or assign to Buyer and Buyer
does not hereby assume liability for, any contracts other than as set forth on Exhibit “B”.



     This document may be executed in any number of counterparts, each of which may be executed by
any one or more of the parties hereto, but all of which shall constitute one instrument, and shall
be binding and effective when all parties hereto have executed at least one counterpart.



K-20









 





     The terms and provisions of this agreement shall be binding upon and inure to the benefit of
the respective parties hereto and their respective successors and assigns.



     EXECUTED as of the day and year first written above.



	 	 	 	 	 	 	 	 	 
	 	 	 	 	SELLER:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	INSERT SELLER	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	 	(SEAL)	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Roger A. Waesche, Jr.	 	 
	 

	 	 	 	 	 	Executive Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	BUYER:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	INSERT BUYER	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	 	(SEAL)	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:	 	 
	 

	 	 	 	 	 	Title:	 	 






K-21









 






EXHIBIT E




FIRPTA CERTIFICATE




	 	 	 	 	 
	STATE OF

	 	 	 	 )
	 

	 	 	 	 
	 

	 	 	 	 ) (insert date)
	COUNTY OF

	 	 	 	 )
	 

	 	 	 	 





     I, (proper name of Seller’s officer), as (office held) of (Seller), being duly authorized to
make this affidavit on behalf of (Seller) and being duly sworn, do depose and say, that:



     1. (Seller’s) taxpayer identification number is ___.



     2. (Seller) is not a “foreign person” within the meaning of Section 1445(f)(3), of the
Internal Revenue Code of 1954 (the “Code”), as amended; and (Buyer) is not required, pursuant to
Section 1445 of the Code, to withhold ten percent (10%) of the amount realized by Seller on the
disposition of the Property to (Buyer).



     3. I understand that I am making this Affidavit under penalty or perjury pursuant to the
requirements of Section 1445 of the Code.



	 	 	 	 	 	 	 
	 	 	(Seller)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 




SWORN TO and subscribed before me this ___day of ___, 200___.




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	 





K-22









 






EXHIBIT F




EXCEPTIONS





K-23