Exhibit 10.6

 

OFFICE LEASE

 

	
CONTENTS
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
SUMMARY   OF BASIC LEASE TERMS
    	
 
    	
PAGE   2
    
	
PREMISES
    	
 
    	
SECTION 1
    
	
TERMS
    	
 
    	
SECTION 2
    
	
RENT
    	
 
    	
SECTION 3
    
	
SECURITY   DEPOSIT
    	
 
    	
SECTION 4
    
	
USE
    	
 
    	
SECTION 5
    
	
OPERATING   EXPENSES
    	
 
    	
SECTION 6
    
	
UTILITIES   AND SERVICES
    	
 
    	
SECTION 7
    
	
MAINTENANCE,   REPAIRS AND ALTERATIONS
    	
 
    	
SECTION 8
    
	
ALTERATIONS   AND ADDITIONS
    	
 
    	
SECTION 9
    
	
INSURANCE
    	
 
    	
SECTION 10
    
	
INDEMNITY
    	
 
    	
SECTION 11
    
	
SUBROGATION
    	
 
    	
SECTION 11.A
    
	
DAMAGE,   DESTRUCTION AND BUSINESS INTERRUPTION
    	
 
    	
SECTION 12
    
	
TENANT   TAXES
    	
 
    	
SECTION 13
    
	
COMMON   AREAS
    	
 
    	
SECTION 14
    
	
SUBLETTING   AND ASSIGNMENT
    	
 
    	
SECTION 15
    
	
TENANT’S   DEFAULT
    	
 
    	
SECTION 16
    
	
LANDLORD’S   DEFAULT
    	
 
    	
SECTION 17
    
	
CONDEMNATION
    	
 
    	
SECTION 18
    
	
SUBORDINATION   AND ATTORNMENT
    	
 
    	
SECTION 19
    
	
QUIET   ENJOYMENT
    	
 
    	
SECTION 20
    
	
DELAYS
    	
 
    	
SECTION 21
    
	
FUTURE   EXPANSION
    	
 
    	
SECTION 22
    
	
RENEWAL   OPTION
    	
 
    	
SECTION 23
    
	
GENERAL   PROVISIONS
    	
 
    	
SECTION 24
    
	
OPTION   TO PURCHASE
    	
 
    	
SECTION 25
    
	
 
    	
 
    	
 
    
	
EXHIBIT A
    	
 
    	
LEGAL   DESCRIPTION
    
	
EXHIBIT B
    	
 
    	
PREMISES
    
	
EXHIBIT C
    	
 
    	
RULES   AND REGULATIONS
    
	
EXHIBIT D
    	
 
    	
ACCEPTANCE   LETTER
    
	
EXHIBIT E
    	
 
    	
PARKING   AREAS
    
	
EXHIBIT F
    	
 
    	
INTENTIONALLY   OMITTED
    
	
EXHIBIT G
    	
 
    	
OPTION   TO PURCHASE
    
	
EXHIBIT H
    	
 
    	
ENTITLEMENT   SCHEDULE
    


 

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OFFICE LEASE

 

THIS OFFICE LEASE (this “Lease”) is made and entered into this 30th day of May, 2012, by and between, 3333 WALNUT, LLC, a Colorado limited liability company (hereinafter referred to as “Landlord”) and RALLY SOFTWARE DEVELOPMENT CORP., a Delaware corporation (hereinafter referred to as “Tenant”).

 

W I T N E S S E T H:

 

For and in consideration of the rental and of the covenants and agreements hereinafter set forth to be kept and performed by the Tenant, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises herein described for the Term herein set forth, at the rental and subject to and upon all of the terms, covenants and agreements hereinafter set forth.

 

SUMMARY OF BASIC LEASE TERMS

 

	
A.
    	
 
    	
LANDLORD:
    	
 
    	
3333   WALNUT, LLC,
    
	
 
    	
 
    	
 
    	
 
    	
a   Colorado limited liability company
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
B.
    	
 
    	
TENANT:
    	
 
    	
RALLY   SOFTWARE DEVELOPMENT CORP.,
    
	
 
    	
 
    	
 
    	
 
    	
a   Delaware corporation, or its Permitted Assignee.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
C.
    	
 
    	
BUILDING:
    	
 
    	
3333   Walnut Street, Boulder, Colorado, consisting of approximately 65,545 square   feet of Rentable Area (after completion of the Additional Building(s) as   defined in Section 22, the building known as 3333 Walnut shall be   referred to as the “Original Building”).
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
D.
    	
 
    	
PREMISES:
    	
 
    	
The   entire Building, containing approximately 65,545 square feet of Rentable   Area.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
E.
    	
 
    	
LEASE   TERM:
    	
 
    	
One   hundred twenty (120) months, commencing on May 30, 2012 (the “Commencement   Date”) and ending ten (10) years after the Commencement Date (the   “Term”). If the Commencement Date occurs on other than the first day of the   month, Tenant shall pay proportionate rent at the same monthly rate set forth   herein for the partial month at the beginning of the Term and the Term of the   Lease shall be extended for a like period such that it shall expire on the   last day of the month in which the term would otherwise have expired. Tenant   agrees to complete the Acceptance Letter attached hereto as Exhibit D,   upon full execution of this Lease, signifying the Commencement of the Lease   and the Termination Date of the Lease. Landlord and Tenant acknowledge and   agree, in the event of any conflict between this Lease and the Acceptance   Letter, such fully executed Acceptance Letter shall control and prevail.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
F.
    	
 
    	
SECURITY   DEPOSIT:
    	
 
    	
$2,500,000.00,   deliverable and held as set forth in Section 4 of this Lease.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
G.
    	
 
    	
BASE   RENT:
    	
 
    	
Months:
    
	
 
    	
 
    	
 
    	
 
    	
1
    	
Base   Rent abated first full month
    
	
 
    	
 
    	
 
    	
 
    	
2   — 24
    	
$107,876.15   / Month ($19.75/RSF/ANNUM)
    
	
 
    	
 
    	
 
    	
 
    	
25   — 48
    	
$109,241.67   / Month ($20.00/RSF/ANNUM)
    
	
 
    	
 
    	
 
    	
 
    	
49   — 60
    	
$110,607.19   / Month ($20.25/RSF/ANNUM)
    
	
 
    	
 
    	
 
    	
 
    	
61   — 72
    	
$113,338.23   / Month ($20.75/RSF/ANNUM)
    
	
 
    	
 
    	
 
    	
 
    	
73   — 84
    	
$116,069.27   / Month ($21.25/RSF/ANNUM)
    
	
 
    	
 
    	
 
    	
 
    	
85   — 96
    	
$118,800.31   / Month ($21.75/RSF/ANNUM)
    
	
 
    	
 
    	
 
    	
 
    	
97   — 108
    	
$121,531.35   / Month ($22.25/RSF/ANNUM)
    
	
 
    	
 
    	
 
    	
 
    	
109   — 120
    	
$124,262.40   / Month ($22.75/RSF/ANNUM)
    


 

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If the Commencement Date occurs on other than the first day of the month, Tenant shall pay pro-rated rent in advance computed at the rate of $3,595.00 per day for the duration of such partial month, and the first full month of lease Term shall be considered to begin the first day of the next month.  Base Rent shall be abated for the first full calendar month after the Commencement Date.

 

Tenant shall keep in strict confidence and shall not divulge the specific contents or provisions of this Lease to anyone other than an officer, agent, employee, director, shareholder, lawyer, consultant, accountant or auditor of Tenant or its Permitted Assignee without the prior written consent of Landlord, unless ordered by a court of competent jurisdiction or required by applicable law.  Tenant may disclose this Lease to a Permitted Assignee (hereinafter defined) or any bona fide potential investor, underwriter or acquirer of Tenant with Landlord’s consent, which shall not be unreasonably withheld, conditioned or delayed. A breach of the foregoing covenant of confidentiality shall be deemed a material breach and event of default under this Lease, subjecting Tenant to any and all of Landlord’s rights and remedies available in the event of nonpayment of rent.  This covenant of confidentiality shall survive the expiration of the Lease and any amendment thereto.

 

	
H.
    	
 
    	
RENTABLE   AREA OF THE PREMISES: 65,545 rentable square feet.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
I.
    	
 
    	
RENTABLE   AREA OF THE BUILDING: 65,545 rentable square feet.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
J.
    	
 
    	
TENANT’S PERCENTAGE SHARE:  Determined from time to time by Landlord, by   dividing the Rentable Area of the Premises by the Rentable Area of the   Building and multiplying the resulting quotient, to the second decimal place,   by one hundred: One Hundred and 00/100 percent (100.00%).
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
In   the event Landlord elects to add Additional Building(s) as defined in   Section 22, Tenants Percentage Share shall be recalculated by dividing   the Rentable Area of the Premises by the sum of the Rentable Area of the   Original Building and Rentable Area of Additional Building(s) and multiplying   the resulting quotient, to the second decimal place, by one hundred. Such   adjustment shall be effective upon occupancy of the Additional Building(s),   and shall be set forth in an amendment to this Lease, which amendment shall   be signed by Tenant within ten (10) days of Tenant’s receipt of such   amendment.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
K.
    	
 
    	
(INTENTIONALLY   OMITTED).
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
L.
    	
 
    	
LIABILITY INSURANCE REQUIRED OF TENANT: Total   coverage not less than Five Million and No/100 Dollars ($5,000,000.00) as   provided in Section 10 hereof.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
M.
    	
 
    	
ADDRESSES FOR NOTICES AND PAYMENT OF RENT AND   CHARGES: 
   All notices under this Lease shall be sent by registered or certified, return   receipt requested, or overnight mail or delivered in person with a written   receipt provided.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
TO   LANDLORD:
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
3333   Walnut, LLC
    	
 
    	
 
    
	
 
    	
 
    	
c/o   MAVDevelopment
    	
 
    	
 
    
	
 
    	
 
    	
2727   South State Street, Suite 100
    	
 
    	
 
    
	
 
    	
 
    	
Ann   Arbor, Michigan 48104
    	
 
    	
 
    
	
 
    	
 
    	
Attn:   Rob Aldrich
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
with   a copy to:
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
3333   Walnut, LLC
    	
 
    	
 
    
	
 
    	
 
    	
c/o   MAVDevelopment West
    	
 
    	
 
    


 

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1860   Blake Street, Suite 610
    	
 
    	
 
    
	
 
    	
 
    	
Denver,   Colorado 80202
    	
 
    	
 
    
	
 
    	
 
    	
Attn:   Property Manager
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
TO   TENANT:
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
At   the Premises
    	
 
    	
 
    
	
 
    	
 
    	
Contact Name: Nicholas Budor, Associate General   Counsel
    	
 
    	
 
    
	
 
    	
 
    	
Contact Phone: 303-565-2859
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
N.
    	
 
    	
USE OF PREMISES:  General office and administrative, including software development and other legal use incidental thereto.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
O.
    	
 
    	
BROKER:
    	
 
    	
Acquire   Real Estate, Boulder, CO is the sole real estate broker involved in this   transaction. Landlord shall pay Broker’s commission pursuant to a separate   agreement between Landlord and Broker.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
P.
    	
 
    	
PARKING:
    	
 
    	
Tenant   shall be allocated the use of Tenant’s Percentage Share of the Parking Areas   (herein so called) as detailed in Exhibit E attached hereto and   made a part hereof. Notwithstanding anything contained in the foregoing:
    
	
 
    	
 
    	
 
    	
 
    	
(a) if   allowed under the City of Boulder entitlements for the Additional   Building(s), and subject to Tenant’s rights under Exhibit G, if   applicable, Landlord may convey 3625 Walnut Street to a third party; and/or;
    
	
 
    	
 
    	
 
    	
 
    	
(b) Landlord   may lease all or a portion of the building or other areas comprising 1950 33rd Street, in which case the Parking Areas associated therewith and costs   therefor shall be shared proportionate to the number of full time employees   employed by Tenant and the 1950 33rd Street tenant (or, if 1950 33rd   Street is leased for storage or another similar use that does not have   regular employees, then based on number of regular visitors, square footage   or other equitable arrangement as reasonably determined by Landlord).
    
							


 

1.                                      PREMISES

 

1.1                                 Grant of Premises.  Landlord hereby leases to Tenant and Tenant leases from Landlord those certain Premises situated in the City of Boulder, County of Boulder, State of Colorado, described in Paragraph D of the Summary of Basic Lease Terms.

 

1.2                                 Office Building.  The Premises, together with and including certain other property owned by Landlord, comprise a multi-story office building (hereinafter referred to as the “Building”) and the appurtenant land on which it is located.  Tenant’s use and occupancy of the Premises shall include the use, in common with others, of the Common Areas described in Section 14, but excepting therefrom and reserving unto Landlord the exterior faces of all exterior walls, the roof and the right to install, and maintain where necessary in the Building and Premises all pipes, ductwork, conduits and utility lines through hung ceiling space, partitions, beneath the floor or through other parts of the Building and Premises. In the event the Building is expanded with an Additional Building as detailed in Section 22, and not leased by Tenant, then Landlord reserves the right to effect such other tenancies in the Additional Building as Landlord may elect.

 

1.3                                 Construction by Landlord.  Tenant acknowledges that it is accepting the Premises in their as-is and current condition, and that as of the Commencement Date Landlord has no obligation to perform any work or to supply any materials to the Premises.  Tenant acknowledges and agrees that the Premises are fully complete as of the Commencement Date, including Tenant’s existing signage.

 

2.                                      TERM

 

2.1                                 Basic Term. The Term of this Lease shall be for the period of ten (10) years, commencing and ending on the dates set forth in Paragraph E of the Summary of Basic Lease Terms.

 

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3.                                      RENT

 

3.1                                 Base Rent.  Tenant agrees to pay to Landlord, promptly when due, without notice or demand, and without deduction or set off for any reason whatsoever, as rent for the Premises, the Base Rent set forth in Paragraph G of the Summary of Basic Lease Terms for each and every month during the Term hereof.

 

3.2                                 Operating Expenses.  In addition to Base Rent, Tenant agrees to pay additional rent equal to its Percentage Share of Operating Expenses as provided in Section 6 hereof.

 

The Base Rent and Tenant’s Percentage Share of estimated Operating Expenses shall be payable in advance on the first day of each calendar month during the Term.  The Base Rent, Tenant’s Percentage Share of Operating Expenses, and any other amounts that are payable by Tenant to Landlord or otherwise due under the terms of this Lease are sometimes referred to collectively herein as “rent.”

 

3.3                                 Place of Payment.  All rent payable hereunder shall be paid at the Ann Arbor, Michigan offices of Landlord set forth in Paragraph M of the Summary of Basic Lease Terms, or at such other place as Landlord may from time to time designate, in lawful money of the United States; provided, however, that certain of the Operating Expenses may be paid directly to the applicable vendors as outlined herein.  Landlord reserves the right to request that rent payments be made via electronic funds transfer (or “EFT”) payments, provided that any bank charge(s) for such EFT payments are commercially reasonable.

 

3.4                                 Interest on Unpaid Sums.  If rent, or any other monetary sum required to be paid hereunder by Tenant to Landlord, is not paid when due, such sum shall accrue interest at the rate of eighteen percent (18%) per annum.  Said interest shall be charged from the date the amount in question was due until received by Landlord.

 

4.                                      SECURITY DEPOSIT

 

4.1                                 Deposit Letter of Credit.  Concurrently with Tenant’s execution of this Lease, Tenant shall deposit with Landlord an irrevocable, clean sight letter of credit (the “Deposit Letter of Credit”) in the sum set forth in Paragraph F of the Summary of Basic Lease Terms, to be held by Landlord as security for the faithful performance of every provision of this Lease, including but not limited to the provisions relating to the payment of rent (the “Security Deposit”), it being expressly understood that the Security Deposit is not an advance payment of rent or a measure of Landlord’s damages in case of default by Tenant.  The Deposit Letter of Credit shall be in form and from a bank acceptable to Landlord, in its reasonable discretion, provided that if at any time the financial condition of the issuer changes in any materially adverse way, as determined in the sole but reasonable discretion of the Landlord or its mortgagee, then Tenant shall within thirty (30) days of written notice from Landlord deliver to Landlord a replacement Deposit Letter of Credit and Tenant’s failure to do so constitutes an Event of Default for which there shall be no notice or grace or cure periods being applicable thereto; provided, however, that if Tenant is diligently working toward obtaining the replacement Deposit Letter of Credit, and Tenant notifies Landlord thereof within the initial thirty (30) day period, which notification shall contain reasonable documentation evidencing Tenant’s efforts, Tenant shall have an additional period of time, not to exceed an additional thirty (30) days, in which to obtain such replacement Deposit Letter of Credit.  The Letter of Credit shall have a term no less than one (1) year, and shall be renewable for successive periods of one (1) year for the entire Term of this Lease.  If the Letter of Credit is not renewed within thirty (30) days prior to expiration, Landlord shall be allowed to draw thereon and hold the funds as the Security Deposit.  In addition, Landlord shall be entitled to draw on the Letter of Credit at any time during the Term of this Lease if, pursuant to the terms of this Lease, Landlord is entitled to utilize all or any part of the Security Deposit.  Landlord may (but shall not be required to) use, apply or retain all or any part of the Security Deposit for the payment of rent or any other sum in default, or for the payment of amount authorized hereunder which Landlord may spend or become obligated to spend hereunder by reason of Tenant’s default, or to compensate Landlord for other loss or damage authorized hereunder which Landlord may suffer hereunder by reason of Tenant’s default.  If any portion of the Security Deposit is to be so used or applied, Tenant shall, within ten (10) business days after written demand therefor, deposit cash with Landlord in an amount sufficient to restore the Security Deposit to the amount set forth in Paragraph F of the Summary of Basic Lease Terms, and Tenant’s failure to do so shall be deemed a default by Tenant under this Lease.  Landlord shall properly account for the Security Deposit, but shall not be required to keep the Security Deposit separate from its general funds, and Tenant shall not be entitled to interest

 

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on the Security Deposit.  If Tenant shall fully and faithfully perform every provision of this Lease to be performed by Tenant, the Security Deposit, or any balance thereof, shall be returned to Tenant (or Tenant’s assignee including a Permitted Assignee) within sixty (60) days after the expiration of the Term and after Tenant has vacated the Premises; however, in no event shall Landlord be under any obligation to return the Security Deposit earlier than thirty (30) calendar days after the expiration of the Term.  Tenant hereby agrees that in the event any mortgagee of the Building succeeds to Landlord’s interest in the Building by reason of foreclosure or deed in lieu thereof, unless funds representing the Security Deposit are delivered by Landlord to such mortgagee, Tenant shall have no claim against such mortgagee for any deposit.  In addition, Tenant acknowledges and agrees that following a default by Tenant which remains uncured after the expiration of any applicable notice and cure periods, whether or not Tenant abandons the Premises, and notwithstanding anything to the contrary herein, Landlord shall be entitled to hold the Security Deposit and apply said Security Deposit in payment of rent owed by Tenant.

 

4.2                                 Replacement Guaranty.  Notwithstanding the foregoing, Landlord agrees that Tenant may substitute an Acceptable Guaranty, as hereafter defined, for the Security Deposit.  If Tenant provides an Acceptable Guaranty in accordance with the provisions of this paragraph, the Security Deposit shall be released and returned to Tenant, and shall not be required to be held under this Lease.  An “Acceptable Guaranty” is defined as an absolute guaranty of this Lease that (a) is from a guarantor that, at a minimum, is rated as a third party investment grade (i.e., a Standard and Poor’s rating of BBB) or better, and is acceptable to Landlord, in its reasonable discretion, and (b) is in a form acceptable to Landlord, in its sole discretion, and (c) is acceptable to Landlord’s mortgagee.  Without limiting the generality of the foregoing, if Tenant or its Permitted Assignee meets the foregoing criteria, Landlord will consider Tenant or its Permitted Assignee as a stand-alone entity for purposes of determining a substitute Acceptable Guaranty, without the necessity of a third-party giving the Acceptable Guaranty.

 

5.                                      USE

 

5.1                                 Permitted Use.  Tenant shall use the Premises solely for general office and administrative use including the related uses set forth in Paragraph N of the Summary of Basic Lease Terms, and shall not use or permit the Premises to be used for any other purpose.

 

5.2                                 Compliance with Laws.  Tenant shall, at its sole cost and expense, promptly comply with all applicable laws, statutes, ordinances, rules, regulations, orders and requirements in effect during the Term regulating the use or occupancy of the Premises, including the requirements of any board of fire underwriters or other similar body now or hereafter constituted.  Tenant will not use or permit the use of the Premises in any manner which may tend to create waste or a nuisance.  Tenant will at all times comply with all federal, state or local laws, ordinances and regulations (“Hazardous Materials Laws”) relating to the environment, health and safety, or to any materials constructed within the definition of hazardous substances, hazardous wastes, hazardous materials, toxic substances, or words of similar import under any applicable federal, state or local law, regulation, ordinance or policy (all, collectively, “Hazardous Materials”). The parties acknowledge that a pre-existing environmental condition exists in the groundwater table below 3333 Walnut Street, 1950 33rd Street and 3625 Walnut Street, and that Tenant has no liability whatsoever for such condition, unless during the Term Tenant, its affiliates, subsidiaries, members, principals, beneficiaries, partners, officers, directors, shareholders, employees, agents, contractors, invitees or licensees (each, a “Tenant Party” and collectively “Tenant Parties”) causes or permits to be caused any action that exacerbates the same.

 

5.3                                 Insurance Cancellation.  Tenant shall not do or permit anything to be done on or about the Premises which in any way causes cancellation or increases the existing rate of any insurance policy covering the Building or any of its contents.  If any such action shall increase the rate of any such policy, Tenant shall pay the amount of such increase as additional rent.

 

5.4                                 Landlord’s Rules and Regulations.  Tenant shall observe and comply with the Building rules and regulations attached hereto as Exhibit C or other rules and regulations which may be promulgated from time to time and such reasonable amendments and additions thereto as Landlord may from time to time promulgate on a non-discriminatory basis.  Landlord shall not be responsible to Tenant for the non-performance of said rules and regulations by any other tenants of the Building unless it interferes with Tenant’s quiet enjoyment of the Premises.

 

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6.                                      OPERATING EXPENSES

 

6.1                                 Tenant’s Obligations.  In addition to the Base Rent provided for herein above, Tenant shall pay to Landlord the Percentage Share (as set forth in Paragraph J of the Summary of Basic Lease Terms) of the Operating Expenses during the Term hereof.  If the Commencement Date of this Lease is other than the first day of a calendar year, during the first and last year of the Term Tenant will pay a proportion of Tenant’s Percentage Share of Operating Expenses based upon the number of days of the respective calendar year in which the Lease was in effect.  If during any calendar year the Building is not at least ninety-five percent (95%) occupied, the Operating Expenses for such calendar year that vary by occupancy shall be adjusted to reflect ninety-five percent (95%) occupancy.

 

6.2                                 Definition.  Operating Expenses are intended to be inclusive of all costs of operating and maintaining the Building and the real property on which it is situated, except franchise, estate, inheritance, net income and excess profits taxes of Landlord, depreciation on the Building, interest on and principal retirement of Landlord’s mortgage loans, leasing commissions, costs chargeable by Landlord directly to specific tenants, and except any insurance, tax, maintenance or utility cost attributable to the building at 1950 33rd Street and/or the land at 3625 Walnut Street.  Landlord agrees to make reasonable efforts to minimize Operating Expenses insofar as such efforts are not inconsistent with Landlord’s intent to operate and maintain the Building in a first class manner.  Operating Expenses include but shall not be limited to Tenant’s Percentage Share of the following:

 

6.2.1                        All ad valorem real property taxes, assessments, water and sewer rents, and other governmental impositions and charges whatsoever which may create a statutory lien upon the Building, the real property on which it is located or the Parking Areas (including those Parking Areas related to 1950 building which is located on the same parcel as the Building but exclusive of the 1950 33rd Street Building and the 3625 Walnut Street land), as detailed in Exhibit E, which are assessed, levied or imposed during the Term of this Lease, surcharges levied upon or assessed against parking spaces or Common Areas, and any tax levy or license fee measured by the rent payable by Tenant under this Lease which may be in lieu of or in addition to current taxes (except Landlord’s net income taxes) or any obligation to any governmental entity assessed upon Landlord as a result of its ownership, operation or use of the Building and all reasonable costs and expenses incurred by Landlord in contesting or negotiating the same with the applicable governmental authority if Landlord, in its reasonable discretion, shall in good faith successfully contest or negotiate the same.

 

6.2.2                        All insurance costs and expenses incurred by Landlord for policies of insurance, insurance brokerage fee, reasonable loss control costs and self insured retentions covering the insurance described in Section 10.2 hereof.

 

6.2.3                        All costs and expenses of repairing, operating and maintaining the heating, ventilating and air conditioning system for the Building, including maintenance contracts therefor and the cost of all utilities required in the operation of such systems, except those required to be paid directly by Tenant.

 

6.2.4                        All costs and expenses to Landlord in providing standard services and utilities to tenants of the Building, including office janitorial services, window washing and utilities not separately metered; together with the cost of replacement of electric light bulbs and fluorescent tubes and ballasts and lighting fixtures.

 

6.2.5                        The reasonable cost incurred by Landlord’s accountants, and the reasonable costs of experts or other consultants necessary to assist the accountants, in making the computations as required hereunder.

 

6.2.6                        All costs and expenses incurred by Landlord in operating, managing, maintaining and repairing the Building, including but not limited to all sums expended in connection with the Common Areas for general maintenance and repairs, resurfacing, painting, re-striping, cleaning, sweeping and janitorial services, window washing, maintenance and repair of elevators, stairways, curbs and Building signs, sprinkler systems, planting and landscaping, Common Area lighting and other utilities, maintenance and repair of any fire protection systems, automatic sprinkler systems, lighting systems, storm drainage systems and other utility systems serving the Building and Common Areas, costs of supplies, personnel to implement such services and to police the Common Areas, rental and/or depreciation of machinery and

 

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equipment used in such maintenance and services, security and fire protection services, trash removal services, all costs and expenses pertaining to snow and ice removal, security systems, utilities, insurance premiums, and Landlord’s direct costs, if any, for workmen’s compensation insurance, wages, employment withholding and social security taxes, personal property taxes, fees for required licenses and permits, supplies, and reasonable and customary charges for professional management of the Building and Common Areas.  Costs and expenses incurred by Landlord in operating, managing and maintaining the Building which are incurred exclusively for the benefit of specific tenants of the Building will be billed accordingly and will not be included within the Operating Expenses.  Landlord, however, may cause any or all of said services to be provided by an independent contractor or contractors.

 

6.2.7                        Cost of capital improvements, structural repairs or replacements made to the Building in order to conform to or comply with applicable laws, ordinances, rules, regulations or orders of any governmental or quasi-governmental authority having jurisdiction over the Building or any such capital improvements, structural repairs or replacements designed primarily to reduce Operating Expenses.  Expenditures for the foregoing shall be amortized at a reasonable market rate of return over the useful life of such capital improvement or structural repair or replacement, as determined by Landlord’s accountants using generally accepted accounting principles; provided that the amortized amount of any cost-saving improvement shall be limited in any year to the corresponding reduction in Operating Expenses as a result thereof.

 

6.3                                 Time of Payment.  Tenant shall pay to Landlord in advance, on the first day of each calendar month during the Term and any extensions hereof, one-twelfth (l/12) of Tenant’s Percentage Share of the estimated annual Operating Expenses.  If the Term of this Lease commences on a day other than the first day of the month, Tenant shall pay to Landlord on the first day of the Term a sum determined by multiplying one three hundred sixty-fifth (1/365) of the Tenant’s Percentage Share of the estimated annual Operating Expenses by the number of days remaining in the first calendar month of the Term.  Any change in the Tenant’s Percentage Share resulting from changes in any particular floor area during the Term shall be effective as of the first day of the month following the change.

 

6.4                                 Re-Estimation.  At any time and from time to time during the Term hereof, Landlord may furnish Tenant with written notice of a re-estimation of Annual Operating Expenses to reflect more accurately, in Landlord’s reasonable opinion, the current Operating Expenses.  Commencing on the first day of the calendar month next succeeding delivery of such notice to Tenant, and continuing on the first day of each subsequent calendar month during the Term (until subsequently re-estimated), Tenant shall pay to Landlord one-twelfth (1/12th) of the Tenant’s Percentage Share of the estimated Annual Operating Expenses, as re-estimated.

 

6.5                                 Annual Adjustments; Reconciliation Statement.  Within ninety (90) calendar days after the commencement of each calendar year during the Term hereof or as soon as reasonably practicable thereafter Landlord shall furnish to Tenant an itemized statement (the “Reconciliation Statement”), setting forth the total Operating Expenses for the preceding calendar year, the amount of Tenant’s Percentage Share of Operating Expenses and the amount of estimated Operating Expenses paid by Tenant with respect to such calendar year.  If the amount of Tenant’s Percentage Share of the Operating Expenses for such year exceeds the amount of estimated Operating Expenses paid by Tenant for such year, Tenant shall pay Landlord the deficiency within twenty (20) business days after receipt of the Reconciliation Statement.  If the amount of estimated Operating Expenses paid by Tenant with respect to such calendar year exceeds the amount of Tenant’s Percentage Share of Operating Expenses, Tenant shall be entitled to a credit in the amount of such excess against the next payment(s) due to Landlord on account of Operating Expenses.  Until Tenant receives a Reconciliation Statement pursuant to this Section 6.5 setting forth a new amount of Tenant’s Percentage Share of estimated Operating Expenses for the new calendar year, Tenant shall continue to pay such Tenant’s Percentage Share of estimated Operating Expenses at the rate being paid for the year just completed.  Moreover, Tenant shall pay to Landlord, or deduct from the rent, as the case may be, on the date required for payment of its Percentage Share of estimated Operating Expenses as adjusted, the difference, if any, between the monthly installments of estimated Operating Expenses so adjusted for the new calendar year and the monthly installments of estimated Operating Expenses actually paid during each year since January 1.

 

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6.6                                 Tenant’s Audit Rights.  Within forty-five (45) days after Landlord furnishes its Reconciliation Statement to Tenant for any applicable calendar year (the “Audit Election Period”), Tenant may, at its expense, elect to audit Landlord’s Operating Expenses for such calendar year only, subject to the following conditions:  (a) there is no uncured event of default under this Lease; (b) the audit shall be prepared by an independent certified public accounting firm of recognized local, regional or national standing; (c) in no event shall any audit be performed by a firm retained on a “contingency fee” basis; (d) the audit shall commence within 30 days after Landlord makes Landlord’s books and records available to Tenant’s auditor and shall conclude within 60 days after commencement; (e) the audit shall be conducted during Landlord’s normal business hours at the location where Landlord maintains its books and records and shall not unreasonably interfere with the conduct of Landlord’s business; (f) Tenant and its accounting firm shall treat any audit in a confidential manner and shall each execute a mutually agreeable, commercially reasonable confidentiality agreement for Landlord’s benefit prior to commencing the audit; and (g) the accounting firm’s audit report shall, at no charge to Landlord, be submitted in draft form for Landlord’s review and comment before the final audit report is delivered to Tenant and Landlord, and Landlord shall have the right to point out claimed discrepancies or make suggestions with respect to such audit report, and any appropriate comments by Landlord which are accepted by Tenant’s auditor shall be incorporated into the final audit report, it being the intention of the parties that Landlord’s right to review is intended to prevent errors and not to unduly influence Tenant’s auditor in the preparation of the final audit report.  Landlord shall credit any overpayment determined by the final approved audit report against the next rent due and owing by Tenant or, if no further rent is due, refund such overpayment directly to Tenant within thirty (30) days of determination.  Likewise, Tenant shall pay Landlord any underpayment determined by the final approved audit report within thirty (30) days of determination.  The foregoing obligations shall survive the expiration or termination of this Lease.

 

6.6.1.                     If Tenant does not give written notice of its election to audit Operating Expenses during the Audit Election Period, Tenant acknowledges and agrees that the information contained on the Reconciliation Statement shall be deemed correct, and, Tenant waives the right to any further contest of the Operating Expenses for that year or prior years.  In the event Tenant timely exercises the aforementioned right to question or contest Landlord’s Reconciliation Statement, and Landlord and Tenant agree upon any such adjustment to the Reconciliation Statement, said adjustment shall be deemed the final settlement for the Operating Expense year in question and Tenant waives the right to any further contest of the Operating Expenses for that year or any prior years.

 

6.6.2                        This paragraph 6.6 shall not be construed to limit, suspend, or abate Tenant’s obligation to pay rent when due, including Operating Expenses.

 

7.                                      UTILITIES AND SERVICES

 

7.1                                 Tenant shall be responsible for arranging and paying for all utilities that will be used in the Building.  Landlord shall have no responsibility for any costs of utilities, except for Common Areas of the Premises, and Tenant hereby agrees to indemnify Landlord from and against any and all claims for such utilities.  If any electric, gas, water or other utility service becomes unavailable to the Building for any period of time, such unavailability shall not affect Tenant’s obligations under this Lease to pay Rent or otherwise.  Notwithstanding the foregoing, if such utility interruption or unavailability is caused by Landlord, then Landlord will use reasonable efforts to restore the interruption as soon as is reasonably practicable.

 

8.                                      MAINTENANCE, REPAIRS AND ALTERATIONS

 

8.1                                 Landlord’s Obligations.  Landlord, as an Operating Expense (unless excluded from Operating Expenses as provided in Article 6), shall maintain the structural integrity of the foundations, exterior roof and exterior walls (excluding the interior surface of exterior walls and all windows, doors and plate glass) of the Building, except that Tenant shall bear the cost of all repairs to the Building (including the Premises and the apparatus contained therein) which become necessary by reason of negligence or misuse by any Tenant Party and cost thereof shall be paid to Landlord on demand as additional rent.  Except for Tenant’s obligations or as agreed between Tenant and Landlord as provided in the following section, Landlord shall make all other repairs, provide general maintenance as Landlord deems reasonably necessary, and the cost thereof shall be included in the Operating Expenses.  Landlord shall have no obligation to commence any repair until a reasonable time after the

 

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receipt by Landlord of written notice of the need for repairs or Landlord’s actual knowledge that such repair is required.

 

8.2                                 Tenant’s Obligations.  Throughout the Term of this Lease, Tenant shall exercise due care in the use and occupancy of the Premises and the Building and shall, at its expense, repair all damage thereto caused by Tenant’s use thereof, as well as other maintenance and repair items that Landlord and Tenant agree in good faith shall be directly contracted, supervised and paid for by Tenant, including, but not limited to recycling programs, janitorial service, changing light-bulbs and light fixtures, interior window washing, carpet cleaning, etc.  Tenant, at Tenant’s expense, shall provide for all special or additional maintenance services required by Tenant’s special uses of the Premises, if any.  If Tenant fails to perform Tenant’s obligations under this section, Landlord may, without terminating this Lease, enter upon the Premises after three (3) calendar days prior written notice to Tenant (except in the event of an emergency, in which case Landlord shall not be required to give any prior notice), and put the same in good order, condition and repair, and the cost thereof shall be immediately due and payable upon demand as additional rent to Landlord.  Landlord shall have no liability to Tenant for any damage, inconvenience or interference with the use of the Premises by Tenant as a result of performing any such repair and maintenance, except for damage caused by the gross negligence or willful misconduct of Landlord.  Tenant will not bring into the Premises or permit the placing within the Premises of equipment or property exceeding the floor loads of the Building.

 

8.3                                 Notification to Landlord.  Tenant agrees to promptly notify the Landlord or its representative of any accidents or defects in the Building of which Tenant becomes aware, including defects in pipes, electric wiring and heating, ventilation and air conditioning equipment or any other known condition which may cause injury or damage to the Building or any person therein.

 

8.4                                 Surrender of Premises.  Upon the expiration or sooner termination of the Term, Tenant agrees to quit and surrender the Premises, broom-clean, in good condition and repair, ordinary wear and tear excepted, together with all keys and combinations to locks, safes and vaults and all improvements, alterations, additions, lighting fixtures and equipment at any time made or installed in, upon or to the interior or exterior of the Premises (except personal property, signs and trade fixtures put in at Tenant’s expense) all of which shall thereupon become the property of Landlord without any claim by Tenant therefor, but the surrender of such property to Landlord shall not be deemed to be a payment of rent or in lieu of any rent reserved hereunder.  Before surrendering the Premises, Tenant shall remove all of Tenant’s personal property, signs, trade fixtures, any computer, telecommunications or other cabling (collectively, “Cabling”) installed by or for the benefit of Tenant in the Premises or elsewhere in the Building, any above-building-standard leasehold improvements the removal of which would require in excess of standard demolition costs (e.g., raised flooring, interior stairwells) (collectively, “Special Removable Leasehold Improvements”) and, at Landlord’s option, Tenant shall also remove any alterations, additions, fixtures, equipment and decorations at any time made or installed by Tenant in, upon or to the interior or exterior of the Premises, and Tenant further agrees to repair any damage caused thereby.  Notwithstanding the foregoing, Landlord may, by notice to Tenant given at least sixty (60) days prior to the expiration of this Lease (or in the case of earlier termination, within ten (10) business days after such earlier termination) require Tenant to leave any Cabling and/or Special Removable Leasehold Improvements at the Premises.  If Tenant shall fail to remove any of Tenant’s personal property and trade fixtures, then at the option of Landlord, either the same shall be deemed abandoned and become the exclusive property of Landlord, or Landlord shall have the right to remove and store said property, at the expense of Tenant, without further notice to or demand upon Tenant and hold Tenant responsible for any and all reasonable charges and expenses incurred by Landlord therefor.  If the Premises are not surrendered upon termination of this Lease, Tenant shall indemnify Landlord against all loss or liability resulting from the delay by Tenant in so surrendering the same, including, without limitation, any claims made by any succeeding occupant disclosed to Tenant and founded on such delay. Tenant’s obligations under this section shall survive the expiration or sooner termination of the Term.

 

8.5                                 Condition as of Commencement Date.  Tenant accepts the Premises in their present, “as is” condition as of the Commencement Date, and acknowledges and agrees that Landlord has no obligation to repair or otherwise improve the same.  Landlord acknowledges that there are no Special Removable Leasehold Improvements existing in the Premises as of the Commencement Date.

 

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8.6                                 Notwithstanding the foregoing, Landlord and Tenant acknowledge and agree that as of the date of this Lease, Tenant has in-house maintenance personnel (the “In-House Maintenance Personnel”) who currently attend to all ordinary maintenance and repair obligations in and around the Building, including certain maintenance and repair obligations that would ordinarily be Landlord’s responsibility hereunder, consisting of all non-capital maintenance, repair and replacement to the interior and exterior of the Building, with the exception of snow removal and landscaping (collectively, the “Tenant-Managed Maintenance/Repairs”).  Landlord agrees that, so long as: (a) Tenant is the sole tenant in the Building; (b) the In-House Maintenance Personnel continue to conduct the Tenant-Managed Maintenance/Repairs in a good and workmanlike manner, in compliance with all laws, and otherwise in a manner so as to maintain the Building consistent with the manner in which it is being maintained as of the date of this Lease; (c) the Tenant-Managed Maintenance/Repairs are conducted at Tenant’s sole cost, and Tenant timely pays any amounts owing to any outside vendors or others retained by Tenant so that at no time will the Building or any portion of the Purchase Option Property (as defined in Exhibit G) be subject to any claim for a lien; (d) Tenant provides Landlord with reasonable records or other documentation regarding Tenant-Managed Maintenance/Repairs from time-to-time as may be requested by Landlord; (e) Tenant continues to conduct the Tenant-Managed Maintenance/Repairs using In-House Personnel, and does not outsource the same to one or more third-party contractors; and (f) Tenant provides Landlord with notice of any Major Repair (hereinafter defined) and permits Landlord to supervise any Major Repair as provided below (the “Tenant-Managed Maintenance/Repairs Conditions”), then Tenant will be permitted to continue to use its In-House Maintenance Personnel for the Tenant-Managed Maintenance/Repairs and Landlord will not include the costs of such Tenant-Managed Maintenance/Repairs as Operating Expenses hereunder.

 

Prior to conducting any repair or replacement that (a) is estimated to cost more than $5,000.00; and (b) affects the structure of the Building, the elevators of the Building or the Building mechanical systems (HVAC, electrical, plumbing, life safety or other similar systems) (a “Major Repair”), Tenant shall notify Landlord in writing of the proposed Major Repair, and Landlord shall have the right, at its option, to either manage such Major Repair using its own personnel and pass the costs through to Tenant as an Operating Expense, or permit Tenant to continue with such Major Repair, but with supervision by Landlord as Landlord deems reasonably appropriate in the circumstances, in which case any reasonable and necessary costs associated with such supervision by Landlord, not to exceed five percent (5%) of the cost of the Major Repair, shall be passed through to Tenant as an Operating Expense.

 

If at any time Tenant fails to satisfy any of the Tenant-Managed Maintenance/Repairs Conditions, or if Landlord elects to construct any Additional Buildings (regardless as to whether or not Tenant continues to be the sole tenant in the Building), Landlord shall have the right, upon thirty (30) days’ prior written notice to Tenant, to elect to have Landlord take over the Tenant-Managed Maintenance/Repairs for the Building (or any portion thereof), in which case the reasonable costs of such Tenant-Managed Maintenance/Repairs shall become Operating Expenses hereunder (unless excluded from Operating Expenses as provided in Article 6).

 

9.                                      ALTERATIONS AND ADDITIONS

 

9.1                                 Landlord’s Consent Required.  Except for alterations which are cosmetic in nature and do not require the issuance of a building permit (e.g., painting), Tenant shall not make any alterations or additions to the Premises without first obtaining Landlord’s written consent.  Tenant shall cause any such repair or alteration approved by Landlord to be done promptly and in a good and workmanlike manner in accordance with the plans and specifications submitted to Landlord and such rules and regulations as may be established by Landlord.  With respect to cosmetic alterations which do not require Landlord’s approval, Tenant shall give Landlord at least ten (10) business days’ prior written notice of its intent to perform such alterations.  All work, whether or not Landlord’s consent is required, shall be performed in a good and workmanlike manner and in accordance with applicable building codes and governmental regulations.  Except for minor alterations that do not require Landlord’s consent hereunder, all work done and material supplied shall be done or supplied only by contractors approved by Landlord, and Landlord shall have the right to grant such approval conditionally or to withdraw the same at any time; provided that Landlord’s election does not increase the cost to Tenant.  Tenant shall, at Tenant’s sole cost and expense, be responsible for any and all maintenance, repair, malfunction and/or replacement of any and all additions, alterations, and modifications made to, and/or installed in the Premises during the performance of any tenant improvement work, whether or not Landlord’s consent is required.  Prior to commencement of any and/or all tenant improvement work, whether or not Landlord’s consent is required, Tenant shall provide Landlord with all Proof of Insurance

 

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certificates.  Landlord shall not be responsible for any equipment loss due to problems beyond the Landlord’s control (i.e. power outages).

 

9.2                                 Payment for Work.  All costs of any work performed by or at the instance of Tenant shall be paid promptly by Tenant so as to avoid the assertion of any mechanic’s and/or materialmen’s liens. Within thirty (30) calendar days after receipt of notice thereof, Tenant shall discharge, by bonding, payment or other means acceptable to Landlord, any mechanic’s lien filed against the Premises or the Building resulting from material or labor furnished or performed at the instance or request of Tenant.  If the lien is not discharged within said thirty (30) day period, Landlord shall have the right, but not the obligation, to discharge said lien by payment, bonding or otherwise, and the costs and expenses to Landlord of obtaining such discharge shall be paid to Landlord by Tenant on demand as additional rent.  Landlord shall have the right at any time and from time to time to post and maintain on the Premises and Building such notices as Landlord deems necessary to protect the Premises against mechanic’s liens. Tenant shall provide Landlord with copies of all lien releases and all such lien releases shall be notarized.

 

10.                               INSURANCE

 

10.1                           Tenant’s Insurance.  Tenant shall, at all times during the Term hereof and at its own cost and expense, procure and maintain in force worker’s compensation insurance and bodily injury liability and property damage and contractual liability insurance naming Landlord, and any interested persons, related firms or corporations expressly designated by Landlord, and any mortgagee of the Building of whose identity Tenant is notified, as additional insureds, against liability for injury or death of any person in connection with the use, operation or condition of the Premises.  Liability insurance shall at all times be in an amount not less than the amount set forth in Paragraph L of the Summary of Basic Lease Terms for bodily injury and property damage, and may be provided by one or more policies of insurance.  The limits of any such insurance shall not limit any excess liability of Tenant.  Tenant shall, at all times during the Term hereof, at its cost and expense, maintain in effect policies of insurance covering its fixtures, equipment, and leasehold improvements installed by Tenant (in excess of any cost thereof paid by Landlord) located on the Premises, in the amount of their full replacement value, providing protection against any peril included in the classification of all risk coverage, including vandalism and malicious mischief.

 

10.2                           Landlord’s Insurance.  Landlord shall procure and maintain (as an Operating Expense reimbursed by Tenant), during the Term of this Lease, the following types of insurance covering the following:

 

(a) the real property of which the Premises is a part, in an amount not less than one hundred percent (100%) of the replacement value of the Building and other improvements located within such real property, as such replacement value may change from time to time, providing protection against any peril generally included within the designation “all risk” (which may include earthquake and flood insurance among other things) and coverage for vandalism and malicious mischief;

 

(b) the rents payable under this Lease; and

 

(c) any general liability coverage, premises liability coverage or other type of insurance in commercially reasonable amounts relating to claims arising under negligence, intentional tort, or strict liability theories brought by any party in connection with the Premises or any condition or use thereof.

 

Tenant shall pay its Percentage Share of the cost of such insurance as part of the Operating Expenses.  The Landlord will also, throughout the Term hereof carry public liability and property damage insurance with respect to the use and operation of the Building.  Tenant shall have no right to any portion of the proceeds of any insurance carried by Landlord.

 

10.3                           Form or Policies.  All insurance required to be carried by Tenant hereunder shall be with companies licensed to underwrite insurance within Colorado, naming Landlord, its management company, the holder of any mortgage on the Premises, any ground lessor, and any other interested persons, related firms or corporations expressly designated by Landlord, as an additional insured with respect to the operations and activities

 

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of Tenant in, or in connection with Tenant’s occupancy of, the Premises.  Copies of all such policies or certificates issued by the insurance company evidencing the existence and amounts of such policies shall be delivered to Landlord upon written request.  No such policy shall be cancelable or subject to modification except after thirty (30) calendar days prior written notice to Landlord and any mortgagee required to be named thereunder.  Tenant shall, within thirty (30) calendar days prior to the expiration of such policies furnish Landlord with renewals thereof, or Landlord may order such insurance and charge the cost thereof to Tenant, which amount shall be payable by Tenant upon demand as additional rent.  All policies of insurance required to be obtained by Tenant and by Landlord shall contain a waiver by the insurer of any rights of subrogation.

 

11.                               INDEMNITY

 

11.1                           Indemnification of Landlord.  Tenant shall indemnify and hold Landlord and its designated trustees, affiliates, subsidiaries, members, principals, beneficiaries, partners, officers, directors, shareholders, employees, mortgagee(s) and agents (including the manager of the Building) (collectively, “Landlord Parties”) harmless from and against any and all losses, claims and damages arising from Tenant’s use of the Premises or the conduct of its business or from any act or omission to act, activity, work or thing done, permitted or suffered by Tenant in or about the Premises.  Tenant shall further indemnify and hold the Landlord Parties harmless from and against any and all claims arising from any breach or default in the performance of any obligation of Tenant to be performed under the terms of this Lease, or arising from any act or negligence of Tenant or any other Tenant Parties, and from and against all costs, reasonable attorney’s fees, expenses and liabilities incurred in connection therewith.  In case any action or proceeding is brought against Landlord, Tenant shall defend the same at Tenant’s expense by counsel satisfactory to Landlord.  Tenant, as a material part of the consideration to Landlord, hereby assumes all risks of damages to property or injury to person in, upon or about the Premises during the Term caused by Tenant or a Tenant Party including their guests or invitees.  The indemnity shall also apply during Tenant’s occupancy of the Premises prior to the commencement of the Term.  The indemnities of this Section 11 shall not apply, however, in respect of any notice, claim, demand, loss, damage or other proceeding arising from or related to the pre-existing environmental condition mentioned in Section 5.2 hereof unless a Tenant Party causes or permits to be caused any action that exacerbates the same.

 

11.2                           Indemnification of Other Tenants.  Tenant shall indemnify and hold harmless all other tenants of the Building, if any, from any loss or damage caused to the Building owing to the leakage or escape of water, gas or other substances from any pipes, machinery or equipment installed by Tenant or any other Tenant Parties within the Building.  Landlord shall secure similar indemnities from any tenants other than Tenant.

 

11.3                           Landlord’s Liability.  Landlord, except in the case of its gross negligence or willful misconduct, or that of its agents, shall not be liable for injury or damage which may be sustained by the person, goods, wares, merchandise or property of Tenant, its employees, invitees or customers, or any other person in or about the Premises caused by or resulting from theft, or fire, or from steam, electricity, gas or water, which may leak, or flow from or into any part of the Premises, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the same.  All of Tenant’s property shall be kept stored and maintained at the sole risk of Tenant.  Landlord shall not be liable for any damages arising from any act or neglect of any tenant of the Building except those acts for which the Landlord was grossly negligent or participated in willful misconduct.

 

11.A                      SUBROGATION

 

Landlord and Tenant hereby waive any and all rights of recovery against the other, their officers, agents, and employees (whether or not such rights are caused by negligence of the other party, and notwithstanding any provisions contained in this Lease to the contrary) occurring out of the use and occupancy of the Premises for loss or damage to their respective real and/or personal property arising as a result of a casualty or condemnation contemplated by Sections 12 or 18.  Each of the parties shall, upon obtaining the policies of insurance required by this Lease, notify the insurance carrier that the foregoing waiver is contained in this Lease and shall require such carrier to include an appropriate waiver of subrogation provision in the policies.

 

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12.                               DAMAGE, DESTRUCTION AND BUSINESS INTERRUPTION

 

12.1 Repair of Damage to Premises.  In the event the Premises or the Building are damaged by fire or other insured casualty and insurance proceeds have been made available therefor by the holder or holders of any mortgages or deeds of trust encumbering the Building, the damage shall be repaired by and at the expense of Landlord to the extent of such insurance proceeds available therefor (except that Landlord shall have no obligation to rebuild, replace or repair any leasehold improvements installed by Tenant in excess of any cost thereof paid by Landlord), provided such repairs can, in Landlord’s sole opinion, be completed within one hundred twenty (120) calendar days after the occurrence of such damage without the payment of overtime or other premiums.  Until such repairs are completed, rent shall be abated in proportion to the part of the Premises which is unusable by Tenant in the conduct of its business (but there shall be no abatement of rent by reason of any portion of the Premises being unusable for a period equal to one day or less).  If the damage is due to the fault or neglect of any Tenant Party, there shall be no abatement of rent.  If Landlord determines that such repairs cannot, in Landlord’s sole opinion, be completed within such one hundred twenty (120) calendar days, Landlord shall notify Tenant of the same, and Landlord may at its option make such repairs within a reasonable time and in such event, this Lease shall continue in effect and rent shall be abated in the manner provided above; however, if Landlord elects not to make such repairs, then either party may, by written notice to the other within thirty (30) calendar days after such election, terminate this Lease as of the date of the occurrence of such damage, and both parties hereto shall be freed and discharged of all further obligations hereunder.

 

12.2                           Building Damage.  If the Building throughout shall be injured or damaged, whether by fire or otherwise (though the Premises may not be affected, or if affected, can be repaired within one hundred fifty (150) calendar days) to the extent of more than thirty-three and a third percent (33 1/3%) of the replacement value, and within sixty (60) calendar days after the happening of such injury Landlord shall decide not to reconstruct or rebuild said Building, then, notwithstanding anything contained herein to the contrary, upon notice in writing to that effect given by Landlord to Tenant within said sixty (60) calendar days, Tenant shall pay the rent, properly apportioned up to the date of such damage, this Lease shall terminate as of such date, and both parties hereto shall be freed and discharged of all further obligations hereunder, except for any obligations that expressly survive the termination of this Lease.

 

13.                               TENANT TAXES

 

13.1                           Personal Property.  Tenant shall pay, prior to delinquency, all taxes, assessments, license fees and public charges levied, assessed or imposed upon or measured by the value of its business operation, including but not limited to the furniture, fixtures, leasehold improvements, equipment and other property of Tenant at any time situated upon or installed in the Premises by Tenant.  Tenant shall cause all such personal property to be assessed and billed separately from the real property of Landlord.

 

13.2                           Increase in Taxes.  If at any time during the Term of this Lease any of Tenant’s property is assessed as a part of the Premises, or if the assessed value of the Landlord’s property is increased by the inclusion therein of a value placed on Tenant’s property, Tenant shall pay to Landlord upon demand, as additional rent, the amount of any such additional taxes as may be levied against the Building by reason thereof.

 

14.                               COMMON AREAS

 

14.1                           Definition.  The term “Common Areas” means all areas and facilities in and/or around the Building and Premises that are provided and designated for the common use and convenience of Tenant and any other tenants of the Building or any Additional Building(s), as detailed in Section 22, their respective officers, agents, employees, customers and invitees.  Common Areas include, but are not limited to, corridors, lobbies, pedestrian sidewalks, stairways, landscaped areas, drinking fountains and rest rooms on multi-tenant floors, elevators and shipping and receiving areas of the Building, Parking Areas (as defined in Exhibit E), private streets and lighting or utilities.

 

14.2                           Maintenance.  Landlord will maintain, operate and repair (or cause others to do so) all of the Common Areas and keep the same in clean and sightly condition during the Term of this Lease; the cost for which is included within Operating Expenses.  Landlord shall have the right to adopt and promulgate reasonable rules and regulations from time to time concerning the Common Areas generally applicable to tenants and occupants of parking areas, if any, designated exclusively for customers of the Building.  For the purpose of maintenance and

 

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repair, or to avoid an involuntary taking or to prevent the public from obtaining prescriptive rights, Landlord may temporarily close portions of the Common Areas, and such actions shall not be deemed an eviction of Tenant or a disturbance of Tenant’s use of the Premises.

 

14.3                           Tenant’s Rights and Obligations.  Landlord grants to Tenant, during the Term of this Lease, the non-exclusive right and license to use, for the benefit of Tenant and its officers, agents, employees, customers and invitees, in common with others entitled to such use, the Common Areas as they from time to time exist, subject to the rights and privileges of Landlord reserved herein.  Tenant shall not at any time interfere with the rights of Landlord and others entitled to use any part of the Common Areas, and shall not store, permanently or temporarily, any materials, supplies or equipment in the Common Areas.

 

14.4                           Changes to Common Areas.  Landlord shall have the right at any time during the Term to change the location of entrances to the Building and change, alter, remodel, reduce or improve the Common Areas, elevators, drains, pipes, heating and air conditioning apparatus or any other part of the Building except the Premises without compensation to Tenant.  For such purposes, Landlord may, if necessary, enter, pass through and work upon the Premises; provided that Landlord shall carry out such work diligently and reasonably, without unreasonable noise, interference or disruption, and in such a manner as shall not unreasonably interfere with Tenant’s access, use or occupancy of the Premises for its business.

 

15.                               SUBLETTING AND ASSIGNMENT

 

15.1                           No Subletting or Assignment.  Except as provided in the following sentence, Tenant shall not sublet all or any part of the Premises, nor assign this Lease or any interest herein, nor mortgage, pledge, encumber or otherwise transfer this Lease or any part hereof, without the prior written consent of Landlord which consent, if required, shall not be unreasonably withheld, conditioned or delayed.  Notwithstanding the foregoing, Tenant shall be allowed to freely assign this Lease, in whole or in part, to any entity which controls, is controlled by or is under common control with Tenant, or which acquires a controlling interest in the assets, business, and/or capital stock of Tenant, including any successor entity that results from merger, acquisition, or Tenant becoming a publicly-traded company (a “Permitted Assignee”), without the consent of Landlord.  No assignment or subletting by Tenant shall relieve Tenant of its obligations under this Lease unless the parties expressly agree otherwise.

 

In the event Tenant should desire to assign this Lease or sublet the Premises or any part thereof, to any party other than its Permitted Assignee, Tenant shall give Landlord written notice that shall specify (a) the name and business of the proposed assignee or sublessee, (b) the amount and location of the space affected, (c) the proposed effective date and duration of the subletting or assignment, and (d) the proposed rental to be paid to Tenant by such sublessee or assignee.

 

If the proposed assignment or sublease is not to a Permitted Assignee, the provisions of this paragraph shall apply, and Landlord shall then have a period of thirty (30) calendar days following receipt of such notice within which to notify Tenant in writing that Landlord elects either (1) to terminate this Lease as to the space so affected as of the date so specified by Tenant and reclaim that portion of the Premises, in which event Tenant shall be released from any further Lease obligations associated with such reclaimed portion arising on or after the date of such termination (except for such obligations that expressly survive the termination of this Lease), (2) to permit Tenant to assign or sublet such space, in which event Tenant may accept rent up to the amount that will equal, but not exceed the current rent contracted-for with Landlord.  Tenant is hereby prohibited from making a profit in any way on the specified Premises, or (3) to not consent to such assignment or sublease, in which case Landlord shall provide Tenant with reasonably detailed documentation as to why it is withholding consent and why it believes that such withholding of consent is reasonable in the circumstances.  By way of example, Landlord would be deemed to be reasonably withholding consent if (a) any portion of the Building or Premises would likely become subject to additional or different laws as a consequence of the proposed transfer; (b) the proposed transferee’s use of the Premises conflicts with the permitted use allowable hereunder; (c) the use, nature, business, activities or reputation in the business community of the proposed transferee (or its principals, employees or invitees) does not meet Landlord’s reasonable and uniformly enforced standards for Building tenants (such as, by way of example, but not limitation, collection agencies, governmental agencies, massage parlors, medical marijuana dispensaries); or (d) the proposed transferee is or has been involved in litigation with Landlord or any of its affiliates within the past two (2) years.  If the proposed rental rate between Tenant and any sublessee is greater than the rental rate of this Lease, then

 

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such excess rental is to be deemed additional rent owed by Tenant to Landlord under this Lease, and the amount of such excess, including any subsequent increases due to escalation or otherwise, shall be paid by Tenant to Landlord in the same manner that Tenant pays the rental hereunder and in addition thereto.

 

15.2                           Documentation.  All documents utilized by Tenant to evidence any subletting or assignment to which Landlord has consented shall be subject to prior written approval by Landlord or its counsel.  Tenant shall submit all financial statements and relevant information for the proposed subtenant or assignee as is reasonably requested by Landlord.  Tenant shall pay, as additional rent, a reasonable fee not to exceed One Thousand Five Hundred Dollars ($1,500.00) for all Landlord’s costs and expenses, including reasonable attorneys’ fees, incurred in determining whether or not to consent to any requested subletting or assignment and in reviewing and approving such documentation.

 

15.3                           Subletting Rents.  Acceptance of Rent by Landlord from anyone other than Tenant shall not be construed as a waiver by Landlord of any provision of this Lease, nor as a release of Tenant, but the same shall be taken to be a payment on account of Tenant.

 

16.                               TENANT’S DEFAULT

 

16.1                           Default.  If (a) Tenant shall fail to make the payment of any sum required to be paid by Tenant under this Lease within five (5) calendar days after the same is due; or (b) Tenant shall fail to perform any of the other covenants or conditions which Tenant is required to observe and to perform, and such default shall continue for twenty (20) calendar days after written notice thereof form Landlord to Tenant (or, if such default is not capable of being cured within 20 days, if Tenant does not commence to cure such default within such 20 day period, or thereafter does not diligently prosecute such cure to completion), or (c) the interest of Tenant under this Lease shall be levied upon under execution or other legal process, or (d) any petition shall be filed by or against Tenant to declare Tenant a debtor under the Federal Bankruptcy Code, for the reorganization or rehabilitation of Tenant or to delay, reduce or modify Tenant’s debts or obligations (and, if such petition is an involuntary petition, such petition is not dismissed within 90 days after the same is filed), or (e) other than by merger, acquisition or initial public offering, any petition shall be filed or other action taken to otherwise reorganize or modify Tenant’s capital structure if Tenant is a corporation or other entity; or (f) Tenant is declared insolvent according to law by a court having jurisdiction; or (g) any assignment of Tenant’s property shall be made for the benefit of creditors; or (h) if a receiver or trustee is appointed by a court for Tenant or Tenant’s property as part of foreclosure or insolvency proceedings; or (i) Tenant fails to take possession of the Premises on the Commencement Date of the Term of this Lease or thereafter fails to occupy and conduct its business on the Premises on a substantially continuous basis, then Landlord may treat the occurrence of any one or more of the foregoing events as a default under this Lease.

 

16.2                           Remedies.  In the event of a default under this Lease by Tenant, Landlord shall have all of the following remedies, which remedies shall be cumulative, and which remedies shall be in addition to all rights and remedies provided at law or in equity:

 

16.2.1                  Landlord may terminate this Lease and forthwith repossess the Premises and be entitled to recover as damages a sum of money equal to the total of (i) the cost of recovering the Premises, including Landlord’s reasonable attorneys’ fees; (ii) any unpaid Base Rent and additional rent earned at the time of termination, plus interest thereon at the rate of eighteen percent (18%) per annum from the due date; (iii) the balance of the Base Rent for the remainder of the Term less the reasonable rental value received by Landlord if the Premises are subleased for all or any remaining part of such Term; (iv) all Operating Expenses accruing during the remainder of the Term (which may either be the actual Operating Expenses, or a reasonable estimation thereof based on past use and custom), less the value received by Landlord if the Premises are subleased for all or any remaining part of such Term; (v) damages for any wrongful withholding of the Premises by Tenant; and (vi) any other sum of money owed by Tenant to Landlord hereunder.

 

16.2.2                  Landlord may retake possession of the Premises and in that event shall have the obligation to the extent required by applicable law, but without being deemed to have accepted a surrender thereof and without terminating this Lease, to undertake commercially reasonable efforts to re-let the Premises for the remainder of the Term provided for herein, upon commercially reasonable terms and

 

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conditions satisfactory to Landlord; and if the rent received through such re-letting does not at least equal the Base Rent and additional rent provided for herein, Tenant shall pay and satisfy any deficiency between the amount of the rent contracted-for herein and that received through re-letting; and, in addition, Tenant shall pay all reasonable expenses incurred in connection with such re-letting, including, but not limited to, the reasonable cost of necessary repairs, renovations or alterations for an occupant, leasing commissions paid to any real estate broker or agent, and reasonable attorneys’ fees incurred.

 

16.3                           Late Charges.  Tenant hereby acknowledges that the timely payment of rent is of the essence and that late payment by Tenant to Landlord of rent and other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges and late charges which may be imposed on Landlord by the terms of any mortgage or trust deed covering the Premises.  Accordingly, if any rent or other sum due from Tenant shall not be received by Landlord or Landlord’s designee within five (5) business days after the said amount is due, Tenant shall pay to Landlord a late charge, equal to five percent (5%) of such overdue amount.  The parties hereby agree that such late charge represents a fair and reasonable estimate of the cost Landlord will incur by reason of late payment by Tenant. Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant’s default with respect to such overdue amount nor prevent Landlord from exercising any of the other rights and remedies granted hereunder.

 

16.4                           Cumulative Remedies.  Suit or suits for the recovery of the rents and other amounts and damages set forth herein above may be brought by Landlord, from time to time, at Landlord’s election and nothing herein shall be deemed to require Landlord to await the date on which this Lease or the Term hereof would have expired by limitation had there been no such default by Tenant, or no such termination, as the case may be.  Each right and remedy provided for in this Lease shall be cumulative and shall be in addition to every other right or remedy provided for in this Lease or hereafter existing at law or in equity or by statute or otherwise including, but not limited to, suits for injunctive relief and specific performance.  The exercise or beginning of the exercise by Landlord of any one or more of the rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by Landlord of any or all other rights or remedies provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise.  All such rights and remedies shall be considered cumulative and nonexclusive.  All costs incurred by Landlord in connection with collecting any rent or other amounts owing by Tenant pursuant to the provisions of this Lease, or to enforce any provision of this Lease, including reasonable attorneys’ fees from the date such matter is turned over to any attorney, whether or not one or more actions are commenced by Landlord, shall also be recoverable as damages by Landlord from Tenant.

 

16.5                           No Waiver.  No failure by Landlord to insist upon the strict performance of any agreement, term, covenant or condition hereof or to exercise any right or remedy consequent upon a breach thereof, and no acceptance of full or partial rent during the continuance of any such breach, shall constitute a waiver of any such breach or of such agreement, term, covenant or condition.  No agreement, term, covenant or condition hereof to be performed or complied with by Tenant, and no breach thereof, shall be waived, altered or modified except by written instrument executed by Landlord.  No waiver of any breach shall affect or alter this Lease, but each and every agreement, term, covenant and condition hereof shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. Notwithstanding any termination of this Lease, the same shall continue in force and effect as to any provisions which require observance or performance by Landlord or Tenant subsequent to such termination.

 

16.6                           Bankruptcy.  Nothing contained in this Section 16 shall limit or prejudice the right of Landlord to prove and obtain as liquidated damages in any bankruptcy, insolvency, receivership, reorganization or dissolution proceeding, an amount equal to the maximum allowed by any statute or rule of law governing such a proceeding and in effect at the time when such damages are to be proved, whether or not such amount be greater, equal to or less than the amounts recoverable, either as damages or rent, referred to in any of the preceding provisions of this section.

 

16.7                           Landlord’s acceptance of such partial payment of rent after Landlord files a written complaint pursuant to Section 16.2, in no event constitutes a waiver of any rights, remedies or defense granted to Landlord hereunder. Landlord shall be entitled to amend the complaint to reflect said partial payment without creating the

 

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necessity for the filing of an additional answer or other responsive pleading by the Tenant, and without prior leave of the court unless required by law, and such an amendment shall not delay the matter from proceeding.

 

16.8                           If a Tenant’s check for payment of any kind is returned for any reason, all future payments including late fees, attorney fees, monthly rent, and any other unpaid balances that are outstanding, must be made by EFT according to Section 3.3 above and/or with certified funds.

 

17.                               LANDLORD’S DEFAULT

 

17.1                           Notice of Landlord.  Landlord shall in no event be charged with default in the performance of any of its obligations hereunder unless and until Landlord shall have failed to perform such obligation within thirty (30) days (or within such additional time as is reasonably required to correct any such default if, within such thirty (30) day period Landlord begins to perform and diligently prosecutes its performance continuously thereafter) after receipt of written notice to Landlord by Tenant properly specifying wherein Landlord has failed to perform any such obligations.

 

17.2                           Notice to Mortgagee.  If the holder of record of any mortgage covering the Premises shall have given prior notice to Tenant that it is the holder of a mortgage and such notice includes the address at which notices to such mortgagee are to be sent, then Tenant shall give notice to the holder of record of such mortgages simultaneously with any notice given to Landlord to correct any default of Landlord as herein above provided.  The holder of record of any such mortgage shall have the right, within thirty (30) calendar days after the expiration of Landlord’s cure period in which to correct or remedy such default before Tenant may take any additional action under this Lease by reason of such default.  Any notice of default given Landlord shall be null and void unless such notice has also been given to all mortgagees whose addresses have theretofore been given to Tenant.

 

17.3                           Landlord’s Liability.  Anything in this Lease to the contrary notwithstanding, Tenant agrees that it will look solely to the estate and property of Landlord in the Building and underlying land, including applicable insurance policies, for the collection of any judgment requiring the payment of money by Landlord in the event of any default or breach by Landlord with respect to the terms of this Lease; and no other assets of Landlord or any partner of Landlord shall be subject to levy, execution or other procedures for the satisfaction of Tenant’s remedies.

 

18.                               CONDEMNATION

 

18.1                           Effect of Taking.  If the Premises or any portion thereof are taken under the power of eminent domain, or sold by Landlord under the threat of the exercise of said power (all of which is herein referred to as “Condemnation”), Landlord shall promptly notify Tenant upon receiving written notification from a condemning authority, and this Lease shall terminate as to the part so taken as of the date the condemning authority takes title or possession, whichever occurs first.  If more than twenty-five percent (25%) of the floor area of the Premises is taken by Condemnation, either party may, at its option, terminate this Lease as of the date the condemning authority takes possession, by providing notice, in writing, of its intent to terminate not later than twenty (20) calendar days after Landlord shall have notified Tenant of the taking.  If all of the Premises or so much of the Building is taken by Condemnation (even though no part or only a small part of the Premises be taken) that Landlord elects not to repair or reconstruct the remaining portion, the provisions of Section 12.2 shall apply.  Failure of Landlord or Tenant to notify the other party of its election to terminate the Lease shall constitute agreement of said party to continue the Lease in full force and effect as to the balance of the Premises.

 

18.2                           Rent Reduction.  If the Lease is not fully terminated after any taking, then it shall remain in full force and effect as to the portion of the Premises remaining; provided the rent payable hereunder shall be reduced in proportion to the area taken.

 

18.3                           Awards.  All awards for the taking of any part of the Premises under the power of eminent domain shall be the property of Landlord, whether made as compensation for diminution of value of the leasehold or for the taking of the fee; except that Tenant to the extend provided by applicable law, may bring its own claim against the condemning authority, at its sole cost and expense, for loss of Tenant’s personal property and reasonable relocation expenses, provided the filing of such claim does not diminish the award which would otherwise be receivable by Landlord.

 

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19.                               SUBORDINATION AND ATTORNMENT

 

19.1                            Subordination.  Landlord and Tenant agree that this Lease be and the same hereby is made subject and subordinate at all times to any mortgage constituting a lien against the Property or any other method of financing or refinancing in any amounts, and all advances thereon, which may now or hereafter be placed against or affect any or all of the land and/or the Premises and/or any or all of the buildings and improvements now or at any time hereafter constituting a part of or adjoining the Building, and to all renewals, modifications, consolidations, participations, replacements and extensions thereof.  The term “mortgages” as used herein shall mean and refer to any mortgage or deed of trust constituting a lien on the Property.  The aforesaid provisions shall be self-operative and no further instrument or subordination shall be necessary unless required by any such mortgagee.  Should Landlord or any mortgagee desire confirmation of such subordination, the Tenant, within ten (10) business days following Landlord’s written request therefor, agrees to execute and deliver, without any charge, any and all documents (in form reasonably acceptable to such mortgagee)  reasonably acknowledging such priority.

 

19.2                           Attornment.  Tenant agrees that in the event of a sale, transfer, or assignment of the Landlord’s interest in the Building or any part thereof, including the Premises, Tenant shall attorn to and to recognize such sale, transfer or assignment, or underlying lessor or mortgagee, as Landlord under the Lease; provided that in connection with such transfer, Landlord shall also have transferred the Security Deposit and all rent to such successor or assignee.

 

20.                               QUIET ENJOYMENT

 

20.1                           Covenant of Quiet Enjoyment.  Landlord agrees that Tenant, upon paying rent and any other monetary sums due under this Lease, may quietly have, hold and enjoy the Premises during the Term hereof without hindrance from Landlord or any person claiming through Landlord, subject, however, to the terms of this Lease, all mortgages, insurance requirements and applicable laws.  This covenant and all other covenants of Landlord shall be binding upon Landlord and its successors only during its or their respective periods of ownership of the Building, and shall not be a personal covenant of any Landlord Parties.

 

21.                               DELAYS

 

21.1                           Extended Time Due to Delay.  Whenever Landlord shall be delayed or restricted in the performance of any obligation of Landlord herein with respect to the performance of work or repairs by reason of Landlord’s inability to obtain materials, services or labor required for such performance or by reason of any statute, law or regulation of a government entity, or by reason of any other cause beyond Landlord’s control, Landlord shall be entitled to extend the time for such performance by a time equal to the extent of the delay or restriction, and Tenant shall not be entitled to compensation for any inconvenience, nuisance or discomfort occasioned thereby, except for rent abatement where expressly provided by this Lease.

 

22.                               FUTURE EXPANSION

 

22.1                           Future Expansion.  The parties acknowledge that Landlord shall pursue the entitlement of 1950 33rd Street and 3625 Walnut Street (the “Vacant Land”) to construct an approximately 72,000 square foot building at 1950 33rd Street and an approximately 16,000 to 24,000 square foot building at 3625 Walnut Street (or such other configurations and sizes as Landlord deems advisable) (each, an “Additional Building”).  Landlord agrees (a) to keep Tenant meaningfully informed, on at least a monthly basis, as to the status of additional development of the Vacant Land, and (b) to use reasonable and diligent efforts to follow the time schedule for applying for and obtaining such entitlements attached as Exhibit H (the “Proposed Schedule”). If due to circumstances beyond Landlord’s reasonable control, including delays not caused by Landlord’s failure to exercise reasonable diligence, the Proposed Schedule must necessarily be modified and extended in any material way, Landlord will promptly notify Tenant of any such material modifications to the Proposed Schedule and the reasons therefor.  However, if the Proposed Schedule is extended beyond the Outside Entitlement Condition Date stated in Exhibit G, such extension shall not cause a postponement of the Outside Entitlement Condition Date unless Tenant consents to such postponement in writing.

 

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If after obtaining entitlements Landlord elects to commence development of the Vacant Land then, subject to the foregoing:

 

22.1.1.               Tenant acknowledges that the future construction and/or development of the Additional Buildings may require joint access or other arrangements with the Premises, and Tenant agrees to cooperate in all reasonable ways to accommodate the development of the Vacant Land, including but not limited to:

 

(a)                                  Revising as needed other sections of the Lease to reflect accurately the development and integration into the office complex of Additional Buildings.

 

(b)                                 Accommodating as reasonably required the physical construction of the Additional Buildings, including attendant noise, dirt and dust, and staging needs normally present in construction projects of similar type and scope, subject to the reasonable applications of the provisions of Sections 14 and 20 hereof and this Lease.

 

22.2                           Right of First Offer for Space in Additional Building.

 

(a)                                  Upon and subject to the terms and conditions set forth in this Section 22, Landlord hereby grants to Tenant the exclusive right of first offer (the “ROFO”), as described below, to negotiate for the lease of all or a portion of an Additional Building, but only if Landlord determines to build an Additional Building.  For purposes hereof, the “Offered Premises” shall mean all space within an Additional Building that Landlord, in its discretion, constructs.

 

(b)                                 The procedure for exercising the ROFO is as set forth in this paragraph.  Before entering into any agreement to lease any of the Offered Premises, Landlord shall give notice (the “Offering Notice”) to Tenant that Landlord intends to attempt to lease the Offered Premises, describing the Offered Premises, and the buildings in which the Offered Premises are contained, and the rental rates and other material economic terms upon which Landlord would lease the Offered Premises (the “Offering Terms”).  The date upon which an Offering Notice is sent is referred to herein as the “Offering Date.”  Upon the condition that Tenant is not in default under this Lease on the Offering Date, Tenant shall have fifteen (15) business days to notify Landlord in writing that Tenant desires to negotiate for the lease of the Offered Premises.  If Tenant provides a timely notice, Landlord and Tenant shall meet at a location determined by Tenant, at one or more times as reasonably requested by Tenant, to negotiate in good faith a binding lease agreement on any terms the parties may agree, including the terms of this Lease.  If Tenant provides a timely notice and the parties do not in good faith agree to the terms of a lease for the Offered Premises within sixty (60) days after Tenant provides such notice, then subject to the terms of the following sentence, Landlord shall be free to negotiate with other parties and enter into a lease for the Offered Premises on such terms and conditions as Landlord may determine in its sole, absolute discretion, as long as such terms are not materially more favorable to such other party than the Offering Terms or any terms discussed between Landlord and Tenant.  Notwithstanding the foregoing, if the sole disputed item is the amount of Base Rent payable for the Offered Premises, then the Base Rent shall be determined as provided in Article 23 below.  Tenant’s failure to give such notice within such 15-day period shall be deemed to be an irrevocable election by Tenant to waive its ROFO, and, thereafter, Landlord shall have the right to lease the Offered Premises to any other party on any terms that are acceptable to Landlord.  In addition, if the Vacant Land is not subject to Tenant’s rights under Exhibit G and Landlord elects to sell any of the Vacant Land to a third party, then the purchaser of the Vacant Land shall not be subject to the provisions of this Section 22, and such purchaser may develop, lease or sell the Vacant Land without the necessity of making any offers or notices to Tenant; likewise, Tenant shall not be bound by the provisions of this Section 22.  Tenant acknowledges and agrees that Landlord will not be restricted in any way from hiring a broker or otherwise preparing the Offered Premises for market so long as Landlord complies with all preceding provisions of this subsection (b), and provided that Landlord shall not actually list (for sale or lease) any Vacant Land or Additional Building(s) until the parties have faithfully completed the provisions of this subsection.

 

22.3                           It is understood and agreed that the provisions of this Section 22 are personal to the Tenant named in this Lease and are not transferable (except to a Permitted Assignee); in the event of any assignment or subleasing of any or all of the Premises (except to a Permitted Assignee) said Section 22 provisions shall be null and void.

 

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22.4                           Other than as set forth in Section 22.1 above, nothing contained in this Lease shall obligate Landlord to actually construct any Additional Buildings or to further pursue the development of the Vacant Land beyond the entitlement stage, or upon and after the Tenant’s exercise of its rights under Exhibit G.  Furthermore:

 

(a)                                  Subject to Tenant’s rights under Exhibit G, Landlord shall have the right without affecting the validity of this Lease to transfer the real property parcels comprising the Vacant Land, reserving appropriate access for the Premises, to a party that is not the owner of the Premises, in which case the provisions of this Section 22 shall not be binding on the owner of the Vacant Land, and Tenant shall have no further rights or obligations under this Section 22; and.

 

(b)                                 Landlord shall have the right without affecting the validity of this Lease to lease the existing building at 1950 33rd Street, in which case the Parking Areas described on Exhibit E and costs therefor, including the Common Area expenses and Operating Expenses attributable to such Parking Areas, shall be shared proportionate to the number of full time employees employed by Tenant and the 1950 33rd Street tenant (or, if 1950 33rd Street is leased for storage or another similar use that does not have regular employees, then based on number of regular visitors, square footage or other equitable arrangement as reasonably determined by Landlord); and

 

(c)                                  Landlord shall have the right to combine real property tax parcels, provided that Tenant’s Percentage Share shall be adjusted to calculate an equitable allocation to Tenant of the tax expense only for Parking Areas and Building(s) actually occupied and used by Tenant, as detailed in 6.2.1.

 

23.                               RENEWAL OPTION

 

23.1  Provided Tenant is not in default hereunder and has performed all of its covenants and obligations hereunder, Tenant shall have the option to extend the Term of this Lease, including the provisions of Section 22 hereof (hereinafter, the “Option”) for two periods of five years each (the “Option Periods”), upon the same terms and conditions, at the then current market rate (as determined as set forth below), but not less than the previous year’s rent, and upon the following further terms and conditions.

 

23.2  Tenant shall exercise said Option only by giving written notice to Landlord no earlier than three hundred thirty (330) calendar days nor later than two hundred seventy (270) calendar days before the expiration of the Lease or the applicable Option Period (the “Notice Period”).  As soon as reasonably practicable after receipt of Tenant’s notice, Landlord shall advise Tenant of the Base Rent for the applicable Option Period (“Landlord’s Notice”).  For a period not to exceed thirty (30) calendar days after the date of Landlord’s Notice (the “Negotiation Period”), both parties shall negotiate on a diligent, good-faith basis to arrive at an agreement concerning the Base Rent for the Option Period.  If at the end of the Negotiation Period Landlord and Tenant are unable to agree on the Base Rent for the Option Period, Landlord shall deliver to Tenant Landlord’s proposal for such terms (“Landlord’s Proposal”) and Tenant shall deliver to Landlord Tenant’s proposal for such terms (“Tenant’s Proposal”).  Tenant shall have a period of fifteen (15) business days after the end of the Negotiation Period (“Tenant’s Decision Period”) to elect to (i) accept Landlord’s Proposal by written notice (the “Acceptance Notice”) to Landlord, (ii) withdraw its renewal request by written notice (“Withdrawal Notice”) to Landlord, or (iii) notify Landlord that it has elected to renew the term of this lease and elected to proceed to arbitration in accordance with the provisions set forth below (“Arbitration Notice”).  If Tenant timely delivers its Acceptance Notice, Landlord and Tenant shall, within ten (10) business days after receipt thereof from Landlord, execute a lease amendment extending the Term for the applicable Option Period on the terms set forth in Landlord’s Proposal.  If Tenant delivers a Withdrawal Notice, then Tenant’s option to extend shall automatically expire and be of no further force or effect.  If Tenant fails timely to deliver its Acceptance Notice or its Arbitration Notice (as applicable), then Tenant shall be deemed to have elected to accept Landlord’s Proposal.  If the Option is not exercised within the Notice Period, or if thereafter Tenant either timely revokes the Option or fails to timely accept the terms set forth in Landlord’s Notice, or if Tenant timely accepts the terms of Landlord’s Notice or Landlord’s Proposal, as applicable, but thereafter fails to timely execute and return the lease amendment, the Option shall be considered null and void.

 

If Tenant delivers an Arbitration Notice to Landlord prior to the expiration of Tenant’s Decision Period, then the term of this Lease shall be renewed and Landlord and Tenant shall proceed to arbitration in accordance with the procedure set forth below.  Landlord and Tenant shall commence arbitration proceedings in accordance with the Commercial Arbitration Rules of the American Arbitration Association and, at least 6 months prior to the expiration of the initial term or the preceding Renewal Period, as applicable, Landlord shall submit Landlord’s Proposal in

 

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writing and Tenant shall submit Tenant’s Proposal in writing, together with the supporting data that was used to calculate such proposals, to a qualified independent licensed commercial real estate broker or real estate appraiser who (i) is licensed under the laws of the State of Colorado, (ii) has been active over the ten (10) year period ending on the date of appointment in the leasing or appraising of similarly situated office buildings in the Boulder, Colorado area, (iii) is recognized as a market expert in office leasing or appraisal of office buildings, (iv) has not represented either Landlord, Tenant or their respective lenders during the preceding five (5) years or in connection with this Lease or Landlord’s acquisition of the property described in Exhibit G-1, and (v) has general experience and competence in determining market rates for office space in Boulder, Colorado comparable to the Premises, and being familiar with the Commercial Arbitration Rules of the American Arbitration Association (a “Qualified Arbitrator”).  The Qualified Arbitrator shall be selected as follows:  AAA shall provide a list of Qualified Arbitrators and the parties shall first attempt to jointly select one Qualified Arbitrator.  If the parties cannot agree on one Qualified Arbitrator, then Tenant shall select one (1) candidate from the AAA list and Landlord shall select one (1) candidate from the AAA list, and the two (2) individuals so selected shall select a third candidate from the AAA list within thirty (30) days after Tenant delivers the Arbitration Notice, and the third shall serve as the Qualified Arbitrator.  If either Landlord or Tenant fails to select its panel member within such thirty (30) day period, then the panel member selected by the other party shall select the Qualified Arbitrator.  Within twenty (20) days after the proposals are submitted, the Qualified Arbitrator shall hold a hearing during which Landlord and Tenant may present evidence in support of their respective proposals.  Within 3 days after the date of the hearing, the Qualified Arbitrator will determine the Base Rent provided the Qualified Arbitrator may select only Landlord’s Proposal or Tenant’s Proposal (and no other amount) as the Base Rent, which proposal so selected shall be the Base Rent for the applicable Option Period.  The Qualified Arbitrator’s determination shall be binding on Landlord and Tenant and may be enforced by a court of competent jurisdiction.  The cost of such arbitration shall be split equally by the parties.  Within thirty (30) days after the Qualified Arbitrator’s determination of the Market Rental Rate, Landlord and Tenant shall execute a mutually acceptable amendment to this Lease specifying that this Lease has been extended at a rate equal to the determined Base Rent.  If the foregoing arbitration process is not completed prior to the commencement of the applicable Option Period, Tenant shall continue to pay Base Rent at the rates in effect prior to such Option Period until such time as the arbitration process is complete, at which time Tenant will pay Landlord, the amounts necessary to adjust the payments made prior to such date to be equal to the Base Rent determined by such arbitration process.

 

23.3  It is understood and agreed that this Option is personal to the Tenant named in this Lease and is not transferable (except to a Permitted Assignee); in the event of any assignment or subleasing of any or all of the Premises (except to a Permitted Assignee) said Option shall be null and void.

 

24.                               GENERAL PROVISIONS

 

24.1                 Estoppel Certificates.  Tenant shall at any time, upon reasonable advance notice from Landlord, execute, acknowledge and deliver to Landlord a statement in writing (a) certifying that this Lease is unmodified and in full force and effect (or if modified, stating the nature of the modifications) and the dates to which the rent and other charges are paid in advance, (b) acknowledging that there are not, to Tenant’s knowledge, any uncured defaults on the part of Landlord hereunder or specifying such defaults if any exist, (c) acknowledging to any mortgagee expressly designated by Landlord that Tenant will not modify or amend this Lease without the consent of such mortgagee and (d) certifying to other relevant matters about which Landlord may reasonably request information.  Tenant shall have ten (10) calendar days to execute and return to Landlord such Estoppel Certificate.  If after reasonable advance notice from Landlord the Tenant fails to execute and return to Landlord the Estoppel Certificate within ten (10) calendar days after its delivery, then Landlord shall be appointed attorney in fact to accurately execute the Estoppel on Tenant’s behalf. Tenant’s failure to provide this statement within the time period specified shall, without further notice by Landlord, constitute a default under this Lease.

 

24.2                           Transfer of Landlord’s Interest.  In the event of a sale or conveyance by Landlord of Landlord’s interest in the Premises, then Landlord, on consummation of the transfer, shall be released and discharged from any liability thereafter accruing under this Lease with respect to the interest so transferred, provided that the funds or deposits in the hands of Landlord at the time of transfer in which Tenant has an interest shall be delivered to the successor of Landlord.  This Lease shall not be affected by any such sale.

 

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24.3                           Captions.  Sections and paragraph captions are for convenience only and are not a part of this lease and shall not be used for interpretation or construction of this Lease.

 

24.4                           Time of Essence.  Time is of the essence with respect to the parties’ performance of obligations hereunder.

 

24.5                           Severability.  The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.

 

24.6                           Modifications for Mortgage.  In the event any lending institution with whom Landlord has negotiated or shall hereafter negotiate for interim, standby or permanent financing for the Building shall require a modification of this Lease as a condition to providing such financing, Landlord shall provide written notice of the requirement to Tenant and Tenant agrees within fifteen (15) calendar days to make any such modification so long as it is commercially reasonable and does not materially alter any of Tenant’s rights, or its monetary or performance obligations hereunder.  If Tenant fails or refuses to make such reasonable modification within said fifteen (15) day period this Lease may, at Landlord’s sole option, be terminated by Landlord as of the date set forth in a written notice from Landlord to Tenant, which date shall in no event be less than thirty (30) calendar days following such notice.

 

24.7                           Entire Agreement.  This Lease, along with any exhibits or attachments hereto, constitutes the entire agreement between the parties relative to the Premises and there are no oral agreements or representations between the parties with respect to the subject matter hereof.  This Lease supersedes and cancels all prior agreements and understandings with respect to the subject matter hereof.  This Lease may be modified only in writing, signed by the parties in interest at the time of modification.

 

24.8                           Recording. This Lease shall not be recorded by Tenant and any recordation by Tenant shall be a breach under this Lease.  Tenant may record a memorandum evidencing the Option as provided in Exhibit G.

 

24.9                           Binding Effect; Choice of Law.  Subject to any provisions hereof restricting assigning or subletting by Tenant and subject to the provisions for the transfer of Landlord’s interest, this Lease shall bind the parties, their successors and assigns.  This Lease shall be governed by the laws of the State of Colorado.

 

24.10                     Holding Over:  Payments After Termination.  If Tenant remains in possession of all or any part of the Premises after the expiration of the Term hereof, without the execution of a new Lease, such tenancy shall be deemed to have created and be construed to be a month to month tenancy only terminable on thirty (30) calendar days written notice by either party to the other on the same terms and conditions as provided herein, except not only as to the Term of this Lease, but also except the Base Rent to be paid by Tenant shall be equal to one hundred twenty five percent (125%) of the sum of:  (i) Adjusted Base Rent paid by Tenant immediately prior to the beginning of the holdover period, (ii) one-twelfth (1/12) of the then-applicable Operating Expenses, and (iii) one-twelfth (1/12) of any annual additional rent due.  No payments of money by Tenant to Landlord after the termination of this Lease, in any manner, or after giving of any notice (other than a demand for payment of money) by Landlord to Tenant, shall reinstate, continue or extend the Term of this Lease or affect any notice given to Tenant prior to the payment of such money.  It is agreed that after the service of notice or the commencement of a suit or after final judgment granting Landlord possession of the Premises, or after any other exercise of Landlord’s rights and remedies hereunder, then the payment of such sums of money, whether as rent or otherwise, shall not waive said notice, or in any manner affect any pending suit or judgment, except to the extent that such payment satisfies any judgment in whole or in part.

 

24.11                     Entry by Landlord.  Subject to the provisions of Sections 14 and 20 hereof and this Lease, Tenant shall permit Landlord or its agents or representatives to enter into and upon any part of the Premises at all reasonable times (and, in the event of an emergency, at any time) to inspect the same, or to show the Premises to prospective purchasers, mortgagees, tenants or insurers, or to clean, provide routine maintenance or provide any other service to be provided by Landlord or Tenant hereunder or make repairs, alterations, or additions thereto, including, but not limited to, any work that Landlord deems necessary for the safety, protection or preservation of the Building or any occupants thereof, or to facilitate repairs, alterations or additions to the Building or any other tenant’s premises.  Except for any entry by Landlord in an emergency situation or to provide normal maintenance, cleaning and

 

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janitorial service, Landlord shall provide Tenant with reasonable prior notice of any entry into the Premises, which notice may be given verbally.  Landlord may use its master key for entry into the Premises.  Landlord shall have the right to temporarily close the Premises or the Building to perform repairs, alterations or additions in the Premises or the Building, provided that Landlord shall use reasonable efforts to perform all such work on weekends and after normal business hours.  Entry by Landlord hereunder shall not, in and of itself, constitute a constructive eviction or entitle Tenant to any abatement or reduction of rent by reason thereof.

 

24.12                     Authority.  If Tenant is a corporation, each individual executing this Lease on behalf of the corporation represents and warrants that he is duly authorized to execute and deliver this Lease on behalf of the corporation in accordance with a duly adopted resolution of the Board of Directors of the corporation or in accordance with the Bylaws of said corporation and that this Lease is binding upon the corporation in accordance with its terms.

 

24.13                     Notices.  All notice or demands of every kind required or desired to be given by Landlord or Tenant hereunder shall be in writing and shall be deemed delivered forty-eight (48) hours after depositing the notice or demand in the United States mail, certified or registered, postage prepaid, addressed to the Landlord or Tenant at the addresses set forth in Paragraph M of the Summary of Basic Lease Terms.

 

24.14                     Brokerage Clause.  Landlord and Tenant hereby warrant and represent that neither has dealt with any real estate broker or finder in connection with the transaction evidenced hereby except for the broker named in Paragraph O of the Summary of Basic Lease Terms, for whose commission Landlord shall be responsible, and each party hereby agrees to indemnify, defend, and hold the other harmless, as the case may be, from and against any and all claims which may be made by any other broker or finder in connection with the transaction evidenced hereby.

 

24.15    Bankruptcy.  Landlord and Tenant understand that notwithstanding certain provisions to the contrary contained herein, a trustee or debtor in possession under the Bankruptcy Code of the United States may have certain rights to assume or assign this Lease.  Landlord and Tenant further understand that in any event Landlord is entitled under the Bankruptcy Code to adequate assurances of future performance of the terms and provisions of this Lease.  For purpose of any such assumption or assignment, and subject to the Bankruptcy Code, the parties hereto agree that the term “adequate assurance” shall include at least the following:

 

24.15.1            In order to assure Landlord that the proposed assignee will have the resources with which to pay the rent called for herein, any proposed assignee must have demonstrated to Landlord’s satisfaction a net worth reasonably acceptable to Landlord.  The financial condition and resources of Tenant were a material inducement to Landlord in entering into this Lease.

 

24.15.2            Any proposed assignee of this Lease must assume and agree to be personally bound by the terms, provisions and covenants of this Lease.

 

24.15.3            Notwithstanding anything to the contrary contained in this Lease, if a Trustee in Bankruptcy assumes control over Tenant’s rights under this Lease, the Trustee shall provide the Landlord with adequate assurance of future performance under this Lease, cure or give adequate assurance that he will cure the default and shall compensate Landlord for actual loss resulting from the Tenant’s bankruptcy.  If the Trustee elects to assign such rights to any third party, “adequate assurance of future performance” shall be deemed to be the Base Rent paid hereunder increased to the then current Base Rate which Landlord would charge for comparable space in the Building as of the date of the Tenant filing its petition for Bankruptcy.

 

24.16                     Tenant shall be entitled to the use of the Parking Areas set forth in Paragraph P of the Summary of Basic Lease Terms without payment of additional Base Rent under this Lease, it being understood that all costs associated with the parking, including but not limited to repairing and maintaining such parking lot and paying ad valorem real property taxes for the parcels on which the Parking Areas are located shall be considered a part of the Operating Expenses.  Landlord shall not be liable for and Tenant hereby releases and covenants not to bring any action against Landlord for any loss or damage to any vehicle of Tenant, its guests, employees or agent for damage to or theft of or from a motor vehicle while in the parking areas.

 

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24.17                     Counterparts. This Lease may be executed in several counterparts, each of which shall be deemed an original, and all such counterparts shall together constitute one and the same instrument.

 

24.18                     Document Review.  In the event Tenant makes any request upon Landlord causing or requiring Landlord to process, review, negotiate and/or prepare (or cause to be processed, reviewed, negotiated and/or prepared) any document or documents in connection with or arising out of or as a result of this Lease, except as may be expressly stated elsewhere herein, Tenant agrees to reimburse Landlord or its designee promptly upon demand the fee of $1,500.00 referenced in Section 15.2 hereof, inclusive of reasonable attorneys fees, in conjunction with each such request.

 

24.19                     Attorney’s Fees.  In the event a suit, action, arbitration, or other proceeding of any nature what-so-ever, including without limitation any proceeding under the US Bankruptcy Code, is instituted, or the services of an attorney are retained to interpret or enforce any provision of this Lease or with respect to any dispute relating to this Lease, the prevailing or non-defaulting party shall be entitled to recover from the losing or defaulting party its reasonable attorneys’, paralegals’, accountants’, and other experts’ fees and all other reasonable fees, costs, and expenses actually incurred and reasonably necessary in connection therewith.  In the event of suit, action, arbitration or other proceeding, the amount thereof shall be determined by the judge or arbitrator, shall include fees and expenses incurred on any appeal or review, and shall be in addition to all other amounts provided by law.

 

24.20           No Accord and Satisfaction.  Landlord’s acceptance of full or partial payment of Base Rent following Tenant’s failure to pay Base Rent when due, regardless of whether Landlord notifies Tenant in writing of Tenant’s failure to pay Base Rent when due, shall in no event constitute a waiver of any rights, remedies or defense granted to Landlord hereunder, including, but not limited to, Landlord’s right to pursue an action for unlawful detainer. Tenant hereby agrees that Landlord shall be entitled to amend its complaint or other filing in any legal proceeding to reflect said partial payment without creating the necessity for the filing of an additional answer or other responsive pleading by the Tenant, and without prior leave of the court unless required by the court, and such an amendment shall not delay the matter from proceeding.

 

24.21                      Joint and Several Liability.  If there is more than one Tenant, or if Tenant is comprised of more than one party or entity, the obligations imposed upon Tenant shall be joint and several obligations of all the parties and entities.  Notices, payments and agreements given or made by, with or to any one person or entity shall be deemed to have been given or made by, with and to all of them.

 

24.22                      Hazardous Materials.  No Hazardous Material, except for de minimis quantities of household cleaning products and office supplies used in the ordinary course of Tenant’s business at the Premises and that are used, kept and disposed of in compliance with all laws, including without limitation, all Hazardous Materials Laws, shall be brought upon, used, kept or disposed of in or about the Premises or the Property by any Tenant Parties without Landlord’s prior written consent, which consent may be withheld in Landlord’s sole and absolute discretion.  Without limiting the generality of Tenant’s indemnities set forth in Article 11 hereof, Tenant shall indemnify, defend and hold the Landlord Parties harmless from (a) any violation by Tenant of this subsection during the Term; and/or (b) any contamination caused by any Hazardous Materials brought onto the Premises, Building or property by Tenant or any other Tenant Parties during the Term.  Neither this Section 24.22 nor the indemnities in Article 11 shall apply to the pre-existing environmental condition mentioned in Section 5.2 hereof unless a Tenant Party causes or permits to be caused any action that exacerbates the same.

 

25.                               OPTION TO PURCHASE

 

25.1                           Option To Purchase  Tenant shall have a Purchase Option to purchase the Building and the property on which it sits, and all of the land and improvements comprising 1950 33rd Street and 3625 Walnut Street, including the access-drive parcel, on the terms and conditions contained in Exhibit G attached hereto and incorporated by this reference.

 

SIGNATURES ON FOLLOWING PAGE

 

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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the dates set forth below.

 

	
LANDLORD:
    	
 
    
	
 
    	
 
    
	
3333 WALNUT, LLC, a Colorado limited liability   company
    	
 
    
	
 
    	
 
    
	
By:
    	
MAVDevelopment   Company, a Michigan corporation, its Manager
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
By:
    	
/s/   Robert A. Aldrich
    	
 
    
	
 
    	
Name:
    	
Robert   A. Aldrich
    	
 
    
	
 
    	
Title:
    	
President
    	
 
    
	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    
	
Dated this          day   of                      ,   2012
    	
 
    


 

 

	
 
    	
TENANT:
    
	
 
    	
 
    
	
 
    	
RALLY   SOFTWARE DEVELOPMENT CORP., a Delaware corporation
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/Nicholas   Budor
    
	
 
    	
 
    	
 
    
	
 
    	
Its:
    	
Nicholas   Budor
    
	
 
    	
 
    	
 
    
	
 
    	
Signature:
    	
VP &   Associate General Counsel
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
Dated   this 29 day of February, 2012
    


 

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exhibit a

 

LegaL Description

 

3333 Walnut/1950 33rd Street
 Boulder, CO

 

Lot 1,

Russell Brown Minor Subdivision Replat “A”,

 

County of Boulder,
 State of Colorado;

 

Also:

 

The West 1/2 of a 40.00 foot wide strip of land in Section 29, Township 1 North, Range 70 West of the 6th P.M., described as follows:

 

Commencing at the East 1/4 corner of said Section 29; thence South 89 46’10” West, a distance of 75 feet to a point on the West right-of-way line of Pleasant View Road as recorded in Book 1122 at Page 64 of the Boulder County Records; thence South 00 02’20” West along said Pleasant View Road, a distance of 909.40 feet to a point on the North right-of-way line of Walnut Street as described in Book 1122 at Page 61 of the Boulder County Records; thence Northwesterly along said Walnut Street, a distance of 977.62 feet to a point on the Southwest corner of that Parcel of Ground described in Book 1214 at Page 215 of the Boulder County Records, the True Point of Beginning; thence North 00 04’40” West, a distance of 482.45 feet along the West property line of said parcel to a point on the Southerly right-of-way line of the Colorado and Southern Railway; thence Northwesterly along said railroad right-of-way, a distance of 41.50 feet, more or less, to the Northeast corner of that Parcel of Ground as described in Book 1179 at Page 132 of the Boulder County Records; thence Southerly along the West line of said tract, a distance of 195.00 feet to the Northeast corner of that Parcel of Ground described in Book 1161 at Page 176 of Boulder County Records; thence continuing Southerly, a distance of 300.00 feet along the East border of said Parcel of Ground to a point on the Northerly right-of-way line of Walnut Street; thence South 75 45’40” East, a distance of 41.28 feet to the True Point of Beginning,

 

County of Boulder, 

State of Colorado.

 

A-1











 

3625 Walnut Street
 Boulder, CO

 

PARCEL B:

 

The East 1/2 of a 40.00 foot wide strip of land in Section 29, Township 1 North, Range 70 West of the 6th P.M., County of Boulder, State of Colorado, described as follows:

 

Commencing at the East 1/4 corner of said Section 29; thence South 89°46’10” West, a distance of 75.00 feet to a point on the West right-of-way line of Pleasant View Road as recorded in Book 1122 at Page 64 of the Boulder County Records; thence South 00°02’20” West, along said Pleasant View Road, a distance of 909.40 feet to a point on the North right-of-way line of Walnut Street as described in Book 1122 at Page 61 of the Boulder County Records; thence Northwesterly along said Walnut Street, a distance of 977.62 feet to a point on the Southwest corner of that parcel of ground recorded in Book 1214 at Page 215 of the Boulder County Records, the True Point of Beginning; thence North 00°04’40” West, a distance of 482.45 feet along the West property line of said parcel to a point on the Southerly right-of-way line of the Colorado and Southern Railway; thence Northwesterly along said railroad right-of-way, a distance of 41.50 feet, more or less, to the Northeast corner of that parcel of ground as described in Book 1179 at Page 132  of the Boulder County Records; thence Southerly along the West line of said tract, a distance of 195.00 feet to the Northeast corner of that Parcel of Ground described in Book 1161 at Page 176 of the Boulder County Records; thence continuing Southerly, a distance of 300.00 feet along the East border of said Parcel of Ground to a point on the Northerly right-of-way line of Walnut Street; thence South 75°45’40” East, a distance of 41.28 feet to the True Point of Beginning.

 

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EXHIBIT B

 

PREMISES

 

3333 Walnut Street, Boulder, Colorado

 

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EXHIBIT C

 

BUILDING RULES AND REGULATIONS

 

Landlord and Tenant agree that the following rules and Regulations shall be and hereby are made a part of this Lease, and Tenant agrees that Tenant’s employees, agents, contractors and invitees or any others permitted by Tenant to occupy or enter the Premises, will at all times abide by said Rules and Regulations:

 

1.                                       The sidewalks, entries, passages, corridors, stairways, and elevators of the Building shall not be obstructed by Tenant, or Tenant’s agents, employees, contractors or invitees or used for any purpose other than ingress to and egress from the Premises.

 

A.                                   (1)                                  Furniture, equipment or supplies will be moved in or out of the Building only upon the elevator designated by Landlord and then only during such hours and in such manner as may be prescribed by Landlord.  Tenant’s movers must provide Landlord with proof of insurance coverage naming Landlord, its manager, and any other parties so designated by Landlord as additional insureds.  Tenant shall cause its movers to use only the loading facilities and elevator designated by Landlord.  In the event Tenant’s movers damage the elevator or any part of the building, Tenant shall forthwith pay to Landlord the amount required to repair said damage.

 

(2)                                  No safe or articles, the weight of which may in the opinion of Landlord constitute a hazard or damage to the Building or Building’s equipment shall be moved into the Premises.

 

(3)                                  Safes and other equipment, the weight of which is not excessive, shall be moved into, from and about the Building only during such hours and in such manner as shall be prescribed by Landlord; and Landlord shall have the right to designate the location of such articles in the Premises.

 

B.                                     During the entire Term of the Lease, Tenant shall at Tenant’s expense install and maintain under each and every caster chair a chair pad to protect the carpeting.

 

2.                                       No new or additional sign, advertisement or notice shall be inscribed, painted or affixed on any part of the inside or outside of the Building unless of such color, size and style and in such place upon or in the Building as shall be first designated by Landlord; but there shall be no obligation or duty on the part of Landlord to allow any sign, advertisement or notice to be inscribed, painted or affixed on any part of the inside or outside of the Building.  A Directory in a conspicuous place, with the name(s) of Tenant(s), not to exceed one name, will be provided by Landlord; any necessary revision to this Directory will be made by Landlord at Tenant’s expense, within a reasonable time after notice for Tenant of the change making the revisions necessary.  No furniture shall be placed in front of the Building or in any lobby or corridor, without the prior written consent of Landlord.  Landlord shall have the right to remove all non-permitted signs and furniture, except Tenant’s existing signage, at the expense of Tenant.

 

3.                                       Tenant shall not do or permit anything to be done in the Premises or bring or keep anything therein which would in any way increase the rate of fire insurance on the Building or on property kept therein, constitute a nuisance or waste, or obstruct or interfere with the rights of other tenants or in any way injure or annoy them, or conflict with the laws relating to fire or with any regulations of the fire department or with any insurance policy upon the Building or any part thereof or conflict with any of the rules or ordinances of the Department of Health of the City and County where the Building is located.

 

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4.                                       Tenant shall not employ any new or additional persons, other than the janitor or cleaning contractor of Landlord, for the purpose of cleaning or taking care of the Premises, without the prior written consent of Landlord.  Landlord shall be in no way responsible to Tenant for any loss of property from the Premises, however occurring, or for any damage done to Tenant’s furniture or equipment by the janitor or any of the janitor’s staff, or by any other person or person whomsoever.  The janitor of the Building may at all times keep a pass key, and other agents of Landlord shall at all times be allowed admittance to the Premises.

 

5.                                       Water closets and other water fixtures shall not be used for any purpose other than that for which the same are intended; and any damage resulting to the same from misuse on the part of Tenant or Tenant’s agents or employees shall be paid for by Tenant.  No person shall waste water by tying back or wedging the faucets or in any other manner.

 

6.                                       Except for seeing eye dogs for the blind and hearing ear dogs for the deaf, no animals shall be allowed in the offices, halls, corridors and elevators of the Building.  No persons shall disturb the occupants of this or adjoining buildings or premises by the use of any radio sound equipment or musical instrument or by the making of loud or improper noises.

 

7.                                       Intentionally omitted.

 

8.                                       Tenant shall not allow anything to be placed on the outside of the Building, nor shall anything be thrown by Tenant or Tenant’s agents, employees, contractors, or invitees out of the windows or doors, or down the corridors, elevator shafts, or ventilating ducts or shafts of the Building.  Tenant, except in case of fire or other emergency, shall not open any outside window that is not designed to be opened.

 

9.                                       No additional lock or locks shall be placed by Tenant on any door in the Building unless written consent of Landlord shall first have been obtained.  A reasonable number of keys to the Premises and the toilet rooms, if locked by Landlord, will be furnished by Landlord; and neither Tenant nor Tenant’s agents or employees shall have any duplicate keys made.  At the termination of this tenancy, Tenant shall promptly return to Landlord all keys to offices, toilet rooms or vaults.

 

10.                                 No window shades, blinds, screens, draperies or other window coverings will be attached or detached by Tenant without Landlord’s prior written consent.  Tenant agrees to abide by Landlord’s rules with respect to maintaining uniform curtains, draperies and linings at all windows and hallways.

 

11.                                 No awnings shall be placed over any window.

 

12.                                 If any Tenant desires any new or additional telegraphic, telephonic or other electric connections, Landlord or Landlord’s agents will direct the electricians as to where and how the wire may be introduced; and without such directions, no boring or cutting for wire will be permitted.  Any such installation and connection shall be made at Tenant’s expense.

 

13.                                 Tenant shall not install or operate any steam or gas engine or boiler in the Premises.  The use of oil, gas or inflammable liquids for eating, lighting or any other purpose is expressly prohibited.  Explosive or other articles deemed extra hazardous shall not be brought into the Building or the property.

 

14.                                 Any painting or decorating, as may be agreed to be done by and at the expense of Landlord, shall be done during regular working hours.  Should Tenant desire such work on Saturdays, Sundays, holidays or outside of regular working hours, Tenant shall pay for the extra cost thereof.

 

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15.                                 Except as permitted by Landlord, Tenant shall not mark upon, paint signs upon, cut, drill into, drive nails or screws into, or in any way deface the walls, ceilings, partitions or floors of the Premises or of the Building; and any defacement, damage or injury caused by Tenant or Tenant’s agents or employees shall be paid for by the Tenant.

 

16.                                 Subject to the Lease provisions, Landlord shall at all times have the right, by and through Landlord’s officers or agents, to enter the Premises and show the same to persons wishing to lease them and may, at any time within sixty (60) days preceding the termination of the Term of Tenant’s Lease, place upon the doors and windows of the Premises the notice “For Rent” which notice shall not be removed by Tenant.

 

17.                                 Personal Use of Premises.  The Premises shall not be used or permitted to be used for residential, lodging or sleeping purposes, or for the storage of personal effects or property not required for business purposes.

 

18.                                 Storage of vehicles in the parking lot is not permitted.  Any vehicles appearing to be stored or abandoned will be ticketed and towed at the vehicle owner’s expense.

 

19.                                 All areas in the Building have been designated as “No Smoking” areas and Tenant, and its employees agents and invitees agree to abide by this designation.

 

20.                                 Tenant shall not place anything or allow anything to be placed near the glass of any window, door, partition or wall which may in Landlord’s sole judgment appear unsightly from outside the Building.

 

21.                                 The toilet rooms, urinals, wash bowls and other apparatus shall not be used for any purposes other than that for which they were constructed, and no foreign substances of any kind whatsoever shall be thrown therein, and to the extent caused by Tenant or its employees or invitees, the expense of any breakage, stoppage or damage resulting from the violation of this rule shall be borne by Tenant.

 

22.                                 Tenant shall cause all doors to the Premises to be closed and securely locked before leaving the Building at the end of the day.

 

23.                                 Without the prior written consent of Landlord, not to be unreasonably withheld, Tenant shall not use the name of the Building or any depiction of the Building in connection with, or in promoting or advertising the business of Tenant, except Tenant may use the address of the Building as the address of its business.

 

24.                                 Tenant shall cooperate fully with Landlord to assure the most effective operation of the Premises’ or the Building’s heating and air conditioning, and shall refrain from attempting to adjust any controls.  Tenant shall keep corridor doors closed.

 

25.                                 Tenant agrees that Landlord may reasonably amend, modify, delete or add new and additional rules and regulations for the use and care of the Premises and the Building of which the Premises are a part.  Tenant agrees to comply with all such rules and regulations upon notice to Tenant from Landlord.  In the event of any breach of the rules and regulations herein set forth, or any reasonable amendments, modifications or additions thereto, Tenant shall promptly cure such breach upon notice from Landlord.  If Tenant fails to promptly cure the same then Landlord shall have all remedies set forth in this Lease in the event of default by Tenant.

 

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26.                                 Tenant recognizes and agrees to enforce with all employees and guests, a policy of no smoking in the Premises and common areas of the building Complex, except in areas specified by the Landlord or its management personnel.

 

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EXHIBIT D

 

ACCEPTANCE LETTER

 

	
Landlord:
    	
3333   WALNUT, LLC
    
	
 
    	
c/o   MAVDevelopment
    
	
 
    	
2727   South State Street, Suite 100
    
	
 
    	
Ann Arbor, Michigan 48104
    
	
 
    	
Attn: Rob Aldrich
    
	
 
    	
 
    
	
Tenant:
    	
RALLY   SOFTWARE DEVELOPMENT CORP.,
    
	
 
    	
Attn:   Nicholas Budor, Associate General   Counsel
    
	
 
    	
 
    
	
Premises:
    	
3333   Walnut, Boulder, Colorado
    
	
 
    	
 
    
	
Re:
    	
Lease,   dated for reference purposes only as                               ,   2012, by and between Landlord and Tenant on the Premises.
    


 

This is to advise that the undersigned, as Tenant, has inspected the improvements at the above-referenced Premises and hereby confirms the following:

 

1.               Provided that Tenant has delivered to Landlord a certificate of insurance evidencing that Tenant has obtained the coverage required pursuant to Paragraph L and 10.1 of the Lease and that Landlord, its property manager and such other parties as Landlord may require and have identified are each named as an additional insured (“Certificate of Insurance”), Tenant has accepted possession of the Premises pursuant to the terms of the Lease.  If Tenant has not delivered to Landlord a Certificate of Insurance prior to the date of this Letter, the Commencement Date of the Lease and the Rent Commencement Date of the Lease shall remain as set forth herein and Landlord will deliver possession of the Premises to Tenant within three (3) business days of Landlord’s receipt of Tenant’s Certificate of Insurance, unless otherwise agreed by Tenant.

 

2.               That the improvements and space required to be furnished according to the aforesaid Lease have been completed and supplied by Landlord  in all respects and in compliance with all applicable codes, and there are no Special Removable Leasehold Improvements contained therein.

 

3.              That the Landlord has fulfilled all of its obligations under the Lease.

 

4.               That no Rent has been prepaid except as provided by the Lease.

 

5.               That there are no existing defenses or offsets which the undersigned Tenant has against the enforcement of said Lease by the Landlord.

 

6.               That the aforesaid Lease has not been modified or altered, except as set forth herein.

 

7.               The Commencement Date of the Lease is the         day of                           , 20    .

 

8.               The Termination Date of the Lease is the          day of                           , 20    .

 

9.               That the Lease is now in full force and effect.

 

[SIGNATURES APPEAR ON FOLLOWING PAGE]

 

D-1











 

	
LANDLORD:
    	
 
    	
TENANT:
    
	
 
    	
 
    	
 
    
	
3333   WALNUT, LLC,
    	
 
    	
RALLY   SOFTWARE DEVELOPMENT CORP.,
    
	
a   Colorado limited liability company
    	
 
    	
a   Delaware corporation
    
	
 
    	
 
    	
 
    
	
By:   MAVDevelopment Company, a Michigan corporation, its Manager
    	
 
    	
By:
    	
 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Name:
    	
 
    
	
By:
    	
 
    	
 
    	
 
    	
 
    
	
Name:   Robert A. Aldrich
    	
 
    	
 
    	
Title:
    	
 
    
	
Title:   President
    	
 
    	
 
    	
 
    	
 
    
	
Dated:
    	
 
    	
 
    	
Dated:
    	
 
    
							


 

D-2











 

EXHIBIT E

 

PARKING AREAS

 

The shaded area below is the Parking Areas as used in this Lease.

 



 

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EXHIBIT F

 

INTENTIONALLY OMITTED

 

F-1











 

EXHIBIT G

 

OPTION TO PURCHASE

 

Provided Tenant is not in default (after notice and expiration of any applicable cure period) of its obligations under this Lease either at the time of his exercise of the Purchase Option (as defined below) or at the time of the Purchase Option Closing (as defined below), Tenant shall have a right and option to purchase the real property located in the County of Boulder, State of Colorado, commonly known as 3333 Walnut Street, 3625 Walnut Street, and 1950 33rd Street, Boulder, Colorado, as more fully described on Exhibit G-1 attached hereto and incorporated herein by this reference (such property, the “Property” and such option, the “Purchase Option”), subject to the following terms and conditions:

 

(a)                                             The Purchase Option shall include the Property together with all improvements and fixtures located therein and all appurtenances thereto, including any development entitlements, plans, designs, entitlement application materials, and such other items as the parties may agree in the Purchase Contract (collectively the “Purchase Option Property”).

 

(b)                                            The terms of the Purchase Option shall be as follows:

 

(i)                                               Tenant shall have the Purchase Option only if Landlord has not obtained the right to build one or more additional buildings on the Property (such rights, the “Entitlements” and such conditions, the “Entitlement Conditions”) within fifteen (15) months after the Effective Date of the Lease, subject to reasonable extensions not to exceed an additional six (6) months (for a total of 21 months) as provided herein (such period, the “Entitlement Conditions Period” and such outside date, the “Outside Entitlement Condition Date”).

 

(ii)                                            The Landlord shall at all times during the Entitlement Conditions Period exercise good faith and commercially reasonable diligence in applying for and pursuing the Entitlements and shall keep Tenant meaningfully informed of the status of obtaining the Entitlements by providing Tenant with periodic status updates, either orally or in writing (the “Status Updates”).  If Landlord shall have used all commercially reasonable efforts to satisfy the Entitlement Conditions within fifteen (15) months after the Effective Date, but for reasons beyond Landlord’s reasonable control, the Entitlement process is unreasonably delayed (e.g., by the City of Boulder or by any other circumstance or event beyond Landlord’s reasonable control), then the Landlord shall so notify Tenant as part of its Status Updates and the Outside Entitlement Condition Date shall be automatically extended for such period of time as is necessary to obtain the Entitlements and satisfy the Entitlement Conditions, not to exceed the final extended Outside Entitlement Condition Date of twenty-one (21)  months after the Effective Date as set forth above.  If at any time, based on the Status Updates being provided by Landlord, or if Landlord fails to provide Status Updates to Tenant, and as a result thereof Tenant does not believe that Landlord is not using reasonable efforts to procure the Entitlements, Tenant shall notify Landlord in writing setting forth in reasonable detail Tenant’s concerns, and if Landlord thereafter fails to diligently pursue the Entitlements there shall be no automatic extension of the Outside Entitlement Condition Date.

 

(iii)                                         If Landlord satisfies the Entitlement Conditions on or before the Outside Entitlement Condition Date, then Tenant shall have no Purchase Option, and this Purchase Option shall be considered null, void and of no effect as if the same had never been entered into.  Without limiting the generality of the foregoing, the parties agree that the Entitlement Conditions shall be deemed to have been satisfied if Landlord has successfully obtained the right to build one or more buildings on the Adjacent Property, whether or not building permits have been issued or construction has commenced.

 

(iv)                                        If the Entitlement Conditions have not been satisfied by the Outside Entitlement Conditions Date, Tenant may exercise the Purchase Option by giving Landlord written notice (“Purchase Option Notice”) at any time within thirty (30) days after the Outside Entitlement Condition Date (the “Purchase Option Exercise Deadline”).  If Tenant fails to exercise the Purchase Option by delivering a Purchase Option Notice to Landlord on or before the Purchase Option Exercise Deadline, then the Tenant’s rights to purchase the Purchase Option Property shall thereafter be null and void, Tenant shall have no further rights to purchase the Purchase Option Property pursuant to this Exhibit G, and the terms and conditions of this Lease shall continue to govern the relationship between Landlord and Tenant with respect to the Property.

 

G-1











 

(v)                                           The purchase price for the Purchase Option Property (the “Purchase Option Price”) shall be equal to the Fair Market Value (hereinafter defined) of the Purchase Option Property, but in no event less than Eighteen Million Nine Hundred Seventy-Five Thousand and No/100ths Dollars ($18,975,000.00).  The “Fair Market Value” shall mean the value of the Purchase Option Property as reflected in a written appraisal prepared by an independent MAI appraiser retained by Landlord and Tenant, which appraiser shall have at least ten (10) years experience in appraising properties similar to the Purchase Option Property, and which appraisal shall be prepared in compliance with all applicable regulatory requirements.  The parties shall split the costs of the appraisal and the Purchase Option Price shall be established no later than thirty (30) days after Tenant gives Landlord its Purchase Option Notice.

 

(vi)                                        Landlord, as seller, and Tenant, as purchaser, agree to mutually execute and deliver to the other a Contract to Buy and Sell Real Estate (using Landlord’s commercially reasonable form) (the “Purchase Contract”), within five (5) days after the Purchase Option Price is established, in a form and content which incorporates the terms set forth herein and otherwise in a form and content reasonably acceptable to Landlord and Tenant.  The terms of this Lease shall continue to govern the relationship between Landlord and Tenant with respect to the occupancy of the Purchase Option Property from the date the Purchase Option Notice is delivered to Landlord until the Purchase Option Closing (hereinafter defined).

 

(vii)                           The closing (the “Purchase Option Closing”) of the purchase and sale contemplated by the Purchase Contract shall take place within ninety (90) days after the Purchase Option Notice is given to Landlord at a time and place mutually agreed to by Landlord and Tenant.  Upon the consummation of the Purchase Option Closing, this Lease shall automatically terminate and thereafter be of no further force or effect, except for those provisions which expressly survive the termination hereof.

 

(viii)                        Landlord shall receive a credit for any Base Rent, or other amounts due hereunder, and accrued but not paid by Tenant as of the date of the Purchase Option Closing.

 

(ix)                                Landlord shall be entitled to retain the then remaining balance of any cash Security Deposit (if any), and Tenant shall receive a credit against the Purchase Option Price equal to the amount of any such cash Security Deposit which has not previously been applied by Landlord.

 

(x)                                   At the Purchase Option Closing, Landlord shall convey the Purchase Option Property to Tenant by special warranty deed, subject to the terms of the Purchase Contract, which may include the following: (A) any matters that would be shown on an accurate survey of the Property; (B) taxes and assessments for the year of the Purchase Option Closing and subsequent years; (C) any matters caused by Tenant; (D) all zoning and other governmental rules and regulations; and (E) any other title exceptions disclosed to Tenant by means of a title insurance commitment or other disclosure by Landlord prior to closing and not objected to by Tenant within the time periods described in the Purchase Contract (collectively the “Permitted Exceptions”).

 

(xi)                                The Purchase Option Price shall be payable by Tenant to Landlord in good funds, as good funds are defined by Colorado law, at the Purchase Option Closing.

 

(xii)                             Landlord shall provide Tenant with a commitment of title insurance from Chicago Title Insurance Company of Colorado or another reputable title insurance company, if deemed prudent by Landlord and reasonably approved by Tenant, in an amount equal to the Purchase Option Price committing to insure Tenant as the owner of the Purchase Option Property, subject to any Permitted Exceptions, within ten (10) days after mutual execution of the Purchase Contract.  Landlord shall deliver to Tenant the policy of title insurance consistent with the title commitment at or within a reasonable period after the Purchase Option Closing.  Landlord shall be responsible for the cost of the title insurance referred to in this subparagraph.

 

(c)                                  Should Tenant not exercise the Purchase Option on or before the Purchase Option Exercise Deadline, or should Tenant exercise the Purchase Option but thereafter fail to close on its purchase of the Purchase Option Property, then, in either event, Tenant shall execute and deliver to Landlord such commercially reasonable documents as Landlord shall request to evidence the termination of the Purchase Option and the

 

G-2











 

continued applicability of this Lease to the relationship between Landlord and Tenant with respect to Tenant’s use and occupancy of the Property.

 

(d)                                 Upon Tenant’s written request, Landlord shall execute a Memorandum of this Purchase Option in a form reasonably acceptable to Landlord, in recordable form, which may Memorandum be recorded by Tenant at its expense.

 

	
LANDLORD:
    	
 
    	
TENANT:
    
	
 
    	
 
    	
 
    
	
3333   WALNUT, LLC,
    	
 
    	
RALLY   SOFTWARE DEVELOPMENT CORP.,
    
	
a   Colorado limited liability company
    	
 
    	
a   Delaware corporation
    
	
 
    	
 
    	
 
    
	
By:   MAVDevelopment Company, a Michigan corporation, its Manager
    	
 
    	
By:
    	
/s/Nicholas   Budor
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Name:
    	
Nicholas   Budor
    
	
By:
    	
/s/Robert   A. Aldrich
    	
 
    	
 
    	
 
    
	
Name:
    	
Robert   A. Aldrich
    	
 
    	
 
    	
Title:
    	
VP &   Associate General Counsel
    
	
Title:   
    	
President
    	
 
    	
 
    	
 
    	
 
    
	
Dated:
    	
2/29/12
    	
 
    	
Dated:
    	
2/29/12
    
							


 

G-3









 

Exhibit G-1

 

LEGAL DESCRIPTION OF THE PROPERTY

 

3333 Walnut/1950 33rd Street
 Boulder, CO

 

Lot 1,

Russell Brown Minor Subdivision Replat “A”,

 

County of Boulder,
 State of Colorado; 

 

Also:

 

The West 1/2 of a 40.00 foot wide strip of land in Section 29, Township 1 North, Range 70 West of the 6th P.M., described as follows:

 

Commencing at the East 1/4 corner of said Section 29; thence South 89 46’10” West, a distance of 75 feet to a point on the West right-of-way line of Pleasant View Road as recorded in Book 1122 at Page 64 of the Boulder County Records; thence South 00 02’20” West along said Pleasant View Road, a distance of 909.40 feet to a point on the North right-of-way line of Walnut Street as described in Book 1122 at Page 61 of The Boulder County Records; thence Northwesterly along said Walnut Street, a distance of 977.62 feet to a point on the Southwest corner of that Parcel of Ground described in Book 1214 at Page 215 of the Boulder County Records, the True Point of Beginning; thence North 00 04’40” West, a distance of 482.45 feet along the West property line of said parcel to a point on the Southerly right-of-way line of the Colorado and Southern Railway; thence Northwesterly along said railroad right-of-way, a distance of 41.50 feet, more or less, to the Northeast corner of that Parcel of Ground as described in Book 1179 at Page 132 of the Boulder County Records; thence Southerly along the West line of said tract, a distance of 195.00 feet to the Northeast corner of that Parcel of Ground described in Book 1161 at Page 176 of Boulder County Records; thence continuing Southerly, a distance of 300.00 feet along the East border of said Parcel of Ground to a point on the Northerly right-of-way line of Walnut Street; thence South 75 45’40” East, a distance of 41.28 feet to the True Point of Beginning,

 

County of Boulder, 
 State of Colorado.

 

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3625 Walnut Street
 Boulder, CO

 

A tract of land in the Northeast 1/4 of the Southeast 1/4 of Section 29, Township 1  North, Range 70 West of the 6th P.M., County of Boulder, State of Colorado, described as follows:

 

Commencing at the East 1/4 corner of Section 29, Township 1 North, Range 70 West of the 6th P.M.; thence South 00 02’20” West, a distance of 949.40 feet along the East line of said Section 29; thence North 89°57’40” West, a distance of 485.00 feet at right angles to  the East line of said Section 29, along the centerline of Walnut Street to a point of curve to the right; thence Northwesterly, a distance of 249.62 feet along the arc of said curve to the right to a point tangent, said arc having a radius of 1,006.00 feet and a delta angle of 14°13’ right; thence North 75°44’40” West a distance of 358.99 feet; thence North 00°04’40” West, a distance of 41.29 feet parallel with the West line of the East 1/2 of the Northwest 1/4 of the Southeast 1/4 of said Section 29, to the Northerly line of Walnut Street which point is the Southeast corner of that tract of land described in deed recorded in Book 1161 at Page 176 of the Boulder County Records said point being the True Point of Beginning; thence South 75°44’40” East, a distance of 247.71 feet along the Northerly line of Walnut Street; thence North 00°04’40” West, a distance of 440.00 feet, more or less, and parallel with the West line of the East 1/2 of the Northwest 1/4 of the Southeast 1/4 of said Section 29 to a point on the Southerly line of the Colorado and Southern Railway Company right-of-way; thence Northwesterly, a distance of 267.00 feet, more or less, along said Southerly line of said Colorado and Southern Railway Company right-of-way to the Northeast corner of that tract of land described in deed recorded in  Book 1179 at Page 132 of said Boulder County Records; thence South 00°04’40” East, a distance of 495.00 feet parallel with the West line of the East 1/2 of the Northwest 1/4 of the Southeast 1/4 of said Section 29 to the Southeast corner of said tract of land described in Book 1161 at Page 176, the True Point of Beginning.

 

Except a strip of land, a distance of 40 feet in width off the West side of the above described parcel. 

 

PARCEL B:

 

The East 1/2 of a 40.00 foot wide strip of land in Section 29, Township 1  North, Range 70 West of the 6th P.M., County of Boulder, State of Colorado, described as follows:

 

Commencing at the East 1/4 corner of said Section 29; thence South 89°46’10” West, a distance of 75.00 feet to a point on the West right-of-way line of Pleasant View Road as recorded in Book 1122 at Page 64 of the Boulder County Records; thence South 00°02’20” West, along said Pleasant View Road, a distance of 909.40 feet to a point on the North right-of-way line of Walnut Street as described in Book 1122 at Page 61 of the Boulder County Records; thence Northwesterly along said Walnut Street, a distance of 977.62 feet to a point on the Southwest corner of that parcel of ground recorded in Book 1214 at Page 215 of the Boulder County Records, the True Point of Beginning; thence North 00°04’40” West, a distance of 482.45 feet along the West property line of said parcel to a point on the Southerly right-of-way line of the Colorado and Southern Railway; thence Northwesterly along said railroad right-of-way, a distance of 41.50 feet, more or less, to the Northeast corner of that parcel of ground as described in Book 1179 at Page 132 of the Boulder County Records; thence Southerly along the West line of said tract, a distance of 195.00 feet to the Northeast corner of that Parcel of Ground described in Book 1161 at Page 176 of the Boulder County Records; thence continuing Southerly, a distance of 300.00 feet along the East border of said Parcel of Ground to a point on the Northerly right-of-way line of Walnut Street; thence South 75°45’40” East, a  distance of 41.28 feet to the True Point of Beginning.

 

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Exhibit H

 

ENTITLEMENT SCHEDULE

 

3333 Walnut Entitlement Schedule

01.05.12

 



 

Assumptions:

 

1 Consultants are signed up and work begins February 1st. Basically it is a 4 month, aggressive schedule, so whenever we start the best case scenario is 4 months

2 Staff starts review on Submittal Date in order to meet 3 week comment schedule. Can get pushed a month if they have lots of plans to review. Has not been an issue recently.

3 Only one round of staff comments. If they determine another round of staff comments are necessary, the Staff review of 3 weeks starts again. Add 6-8 weeks. Not likely because of the history of the site.

4 Planning Board Takes ‘Approval’ Action at first meeting. They could also ‘Approve with Conditions’, ‘Deny’ or ‘Table’. All of these would add time.

5 8 Week time frame to get on agenda starts when staff determines the application is ready to go to planning board. Usually occurs at end of Staff Review

6 City Council does not ‘Call Up’ the Planning Board decision. They have 30 days after PB decision to do so. Call ups are rare, and generally occur on controversial projects with public opposition. 

7 No other curveballs come up. For instance, working with transportation to get the proposed future road access to the east removed has to be dealt with. Also dispute with neighbor gets resolved.

 

H-1