EX-10.10 17 ex10-10.htm EXHIBIT 10.10 ex10-10.htm Exhibit 10.10 Execution Version OFFICE LEASE by and between EOS DEVELOPMENT 1 LLC , a Delaware limited liability company as LANDLORD and GREATBATCH LTD . , a New York corporation as TENANT EOS AT INTERLOCKEN 105 EDGEVIEW DRIVE BROOMFIELD, COLORADO SUITE 310 December 2 , 201 5 1. LEASED PREMISES 1 2. TERM 2 3. RENT 2 4. SECURITY DEPOSIT 2 5. USE 3 6. OPERATING EXPENSES 5 7. UTILITIES AND SERVICES 11 8. MAINTENANCE AND REPAIRS 12 9. ALTERATIONS AND ADDITIONS 13 10. INSURANCE 17 11. INDEMNITY 18 12. DAMAGE, DESTRUCTION AND BUSINESS INTERRUPTION 19 13. TENANT'S TAXES 20 14. COMMON AREAS; FITNESS CENTER 21 15. ASSIGNMENT AND SUBLETTING 22 16. TENANT'S DEFAULT 25 17. LANDLORD'S DEFAULT 27 18. CONDEMNATION 28 19. SUBORDINATION; ESTOPPEL CERTIFICATES 28 20. QUIET ENJOYMENT 29 21. FORCE MAJEURE 29 22. GENERAL PROVISIONS 30 23. RIDER 1 RIDER 1 – PAGE 1 24. TENANT ALLOWANCE; THE TENANT WORK RIDER 1 – PAGE 1 25. ABATED RENT PERIOD; CONTROLLABLE EXPENSES RIDER 1 – PAGE 2 27. PERMITTED TRANSFER RIDER 1 – PAGE 4 28. DIRECTORY BOARD AND SUITE-ENTRY SIGNAGE RIDER 1 – PAGE 4 29. OPTION TO RENEW RIDER 1 – PAGE 6 30. RIGHT OF FIRST REFUSAL RIDER 1 – PAGE 7 - ii - EXHIBITS, SCHEDULES AND OTHER ATTACHMENTS EXHIBIT “ A ” LEGAL DESCRIPTION EXHIBIT “ B ” FLOOR PLAN OF LEASED PREMISES EXHIBIT “ C ” COMMENCEMENT DATE MEMORANDUM EXHIBIT “ D ” RULES AND REGULATIONS EXHIBIT “ E ” ENVIRONMENTAL MANAGEMENT PLAN EXHIBIT “ F ” TENANT CONSTRUCTION AGREEMENT EXHIBIT “G” GUARANTY OF LEASE RIDER 1 ADDITIONAL PROVISIONS - iii - EOS AT INTERLOCKEN SUMMARY OF BASIC LEASE INFORMATION This Summary of Basic Lease Information (the “ Summary ”) is hereby incorporated by reference into and made a part of the attached Office Lease. Each reference in the Office Lease to any term of this Summary shall have the meaning as set forth in this Summary for such term. In the event of a conflict between the terms of this Summary and the Office Lease, the terms of the Office Lease shall prevail. Any initially capitalized terms used herein and not otherwise defined herein shall have the meaning as set forth in the Office Lease. TERMS OF LEASE (References are to the Office Lease) DESCRIPTION 1. Effective Date: November 25, 201 5 2. Landlord: EOS DEVELOPMENT 1 LLC, a Delaware limited liability company 3. Address of Landlord: c/o Hines Interests Limited Partnership 1515 Wynkoop, Suite 800 Denver, Colorado 80202 Attention: Jay W. Despard Telephone: 720.932.0522 Facsimile: 720.932.1565 with copies to: c/o Hines Interests Limited Partnership 2800 Post Oak Blvd. Houston, Texas 77056 Attention: Jeffrey C. Hines Facsimile: 713.966.2020 c/o Hines Interests Limited Partnership 1515 Wynkoop Street, Suite 390 Denver, Colorado 80202 Attention: Liz Taylor Telephone: 303.573.8800 Facsimile: 303.573.8808 4. Tenant: GREATBATCH LTD., a New York Corporation 5. Address of Tenant: Greatbatch LTD. 105 Edgeview Drive, Suite 310 Broomfield, Colorado 80021 Attention: Office Manager 6. Leased Premises ( Article 1 ): 6.1Leased Premises: Approximately 13,219 square feet of Rentable Area located on the third (3 rd ) floor of the Building (as defined below), as set forth in Exhibit “B” attached hereto, known as Suite 310. 6.2“ Building ”: The Leased Premises are located in the Building whose address is 105 Edgeview Drive, Broomfield, Colorado 80021. SUMMARY – PAGE 1 7. Term ( Article 2 ) 7.1Lease Term: Seventy-eight (78) months 7.2Commencement Date: The date that is the earlier of (i) the date Tenant first takes possession of all or any portion of the Premises for purposes of operating its business, (ii) the date that the Tenant Work is substantially complete (as determined in accordance with the Tenant Construction Agreement attached hereto as Exhibit “F” (the “ Tenant Construction Agreement ”)), or (iii) April 1, 2016. 7.3Expiration Date: The last day of the seventy-eighth month of the Lease Term. 8. **Base Rent ( Article 3 ): Period of the Lease Term Annual Base Rental Rate per Square Foot of Rentable Area of the Leased Premises Monthly Installment of Base Rent Annual Base Rent 1 – 6 $0.00 $ 0.00 $ 0.00 7 – 12 $19.00 $20,930.08 $251,160.96 13 – 24 $19.50 $21,480.88 $257,770.56 25 – 36 $20.00 $22,031.67 $264,380.04 37 – 48 $20.50 $22,582.46 $270,989.52 49 – 60 $21.00 $23,133.25 $277,599.00 61 – 72 $21.50 $23,684.04 $284,208.48 73 – 78 $22.00 $24,234.83 $290,817.96 9. Security Deposit (Article 4): $24,234.83 10. Brokers ( Section 22.15 ): Newmark Grubb Knight Frank, representing Landlord, Jones Lang LaSalle, representing Tenant. 11. Number of Parking Passes ( Section 22.16 ): Three and one-half (3.5) unreserved parking passes for each 1,000 square feet of Rentable Area of the Leased Premises; provided, however, that in the event Landlord, in its sole discretion, elects to convert a majority of the unreserved parking spaces to reserved parking spaces, Tenant shall have the right, but not the obligation, to use up to five (5) reserved parking spaces (the “ Reserved Parking Spaces ”) at the Prevailing Parking Rate (as defined below). 12. Option to Extend ( Rider 1 ): Tenant has one (1) option to extend the Lease Term for a period of five (5) years. 13. Right of First Refusal ( Rider 1 ): Tenant has a right of first refusal to lease additional space on the third (3 rd ) floor of the Building, subject to and in accordance with the terms and conditions of Rider 1 . SUMMARY – PAGE 2 OFFICE LEASE THIS OFFICE LEASE (this “ Lease ”), made and entered as of November 25, 2015 (the “ Effective Date ”), by and between EOS DEVELOPMENT 1 LLC, a Delaware limited liability company (“ Landlord ”), and GREATBATCH LTD., a New York corporation (“ 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 Tenant, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the leased premises herein described for the term, at the rental and subject to and upon all of the terms, covenants and agreements hereinafter set forth. 1. Leased Premises . 1.1 Grant of Leased Premises; The Building; and The Project . Landlord hereby leases to Tenant, and Tenant leases from Landlord, those certain premises set forth in Section 6.1 of the Summary (the “ Leased Premises ”), which Leased Premises are located in the Building described in Section 6.2 of the Summary. The Building is part of an office project currently known as “ Eos at Interlocken ”. The term “ Project ” as used in this Lease, shall mean (i) the Building, (ii) the Parking Facility (as defined in Section 22.16 below), (iii) any outside plaza areas, land and other improvements surrounding the Building, (iv) the Common Areas, as defined below in Section 14.1 , (v) at Landlord’s discretion, any additional real property, areas, buildings or other improvements added thereto pursuant to the terms of Section 1.4 of this Lease and (vi) the land upon which any of the foregoing are situated (the “ Real Property ”). The legal description of the land comprising the Real Property is set forth in the attached Exhibit “A” . A floor plan showing the size and location of the Leased Premises within the Building is set forth in the attached Exhibit “B” . Tenant’s use and occupancy of the Leased Premises shall include the use, in common with others, of the Common Areas, but excepting therefrom and reserving unto Landlord the exterior faces of all exterior walls, the roof and the right to install, use and maintain where necessary in the Leased Premises all pipes, ductwork, conduits and utility lines through hung ceiling space, partitions, beneath the floor or through other parts of the Leased Premises; provided , however , such installation, use and maintenance shall not unreasonably interfere with the use and occupancy of the Leased Premises by Tenant or diminish Tenant’s access to the Leased Premises. Landlord reserves the right to affect such other tenancies in the Project as Landlord may elect in its sole business judgment. 1.2 Rentable Area . Landlord and Tenant hereby confirm and stipulate that the number of square feet of “ Rentable Area ” contained in the Leased Premises initially leased by Tenant pursuant to this Lease (i) is as set forth in Section 6.1 of the Summary, (ii) has been calculated in accordance with Landlord’s standard rentable area measurement standards used for the Building, and (iii) except as set forth in this Section 1.2 and Section 6.1 below, is not subject to remeasurement, adjustment or modification. Notwithstanding the foregoing, Landlord shall, at the time and in the manner set forth in the Tenant Construction Agreement, cause the Leased Premises and/or the Building to be measured according to the 2010 Building Owners and Managers Association Office Building Standard, Method A (the “ BOMA Standard ”). If the Rentable Area of the Leased Premises differs from the area set forth in the Summary, Base Rent and other amounts that vary by the size of the Leased Premises (including, without limitation, Tenant’s Share and the Tenant Allowance (as defined in Rider 1 )) shall be appropriately and equitably adjusted. If Landlord and Tenant are unable to agree upon the Rentable Area of the Leased Premises or the Rentable Area of the Building, the determination of Landlord’s architect or measurement specialist shall be binding. 1.3 Condition of Premises, Building and Real Property . Except for Landlord’s obligation to fund the Tenant Allowance in accordance with Rider 1 attached hereto, and Landlord’s repair obligations in Sections 8.2 and 12.1 below, (i) Tenant shall lease the Leased Premises and accept the Leased Premises, Building and Real Property in their current “AS IS” condition, latent defects excepted, without any obligation on Landlord’s part to construct or pay for any improvements, alterations or refurbishment work in the Leased Premises, the Building and the Real Property and (ii) Tenant shall be solely responsible at its sole cost and expense for constructing any and all tenant improvements, alterations and refurbishment work for the Leased Premises pursuant to and in accordance with the provisions of Article 9 below. Notwithstanding the foregoing, Landlord shall have no obligation to cure latent defects (1) unless Tenant notifies Landlord, in writing, of such defects within 365 days after the Effective Date, or (2) if such defects were caused or exacerbated by Tenant or its Responsible Parties (as defined below). 1.4 Landlord’s Use and Operation of the Building, Project and Common Areas . Landlord reserves the right from time to time without notice to Tenant: (i) to close temporarily any of the Common Areas; (ii) to make changes to the Common Areas, including, without limitation, changes in the location, size, shape and number of street entrances, driveways, ramps, entrances, exits, passages, stairways and other ingress and egress, direction of traffic, landscaped areas, loading and unloading areas, and walkways; (iii) to expand the Building; (iv) to add additional buildings and improvements to the Common Areas and the Project; (v) to remove land from the Common Areas; (vi) to designate land outside the Project to be part of the Project, and, in connection with the improvement of such land, to add additional buildings and common areas to the Project; (vii) to use the Common Areas while engaged in making additional improvements, repairs or alterations to the Project or to any adjacent land, or any portion thereof; and (viii) to do and perform such other acts and make such other changes in, to or with respect to the Project, the Common Areas and the Building or the expansion thereof as Landlord may, in the exercise of sound business judgment, deem to be appropriate. Notwithstanding anything contained herein to the contrary, Landlord’s unilateral addition of property to the Real Property and/or Common Areas (such property referred to herein as “ Added Property ”) will not increase the cost of Tenant’s share of Additional Rent by the inclusion of costs and expenses associated with the Added Property or otherwise. - 1 - 2. Term . The term of this Lease (the “ Lease Term ”) shall be as set forth in Section 7.l of the Summary and shall commence on the date (the “ Commencement Date ”) set forth in Section 7.2 of the Summary, and shall terminate on the date (the “ Expiration Date ”) set forth in Section 7.3 of the Summary, unless this Lease is sooner terminated as hereinafter provided or extended pursuant to the terms of Rider 1 attached to this Lease. Landlord and Tenant hereby agree to execute a “ Commencement Date Memorandum ” in the form attached hereto as Exhibit “C” to confirm, among other things, the Commencement Date, the Expiration Date and the square footage of Rentable Area. Failure to execute the Commencement Date Memorandum shall not affect the commencement or expiration of the Lease Term. 3. Rent . 3.1 Base Rent . Tenant agrees to pay Landlord, promptly when due, without notice or demand and without deduction or set-off of any amount for any reason whatsoever, as “ Base Rent ” for the Leased Premises, the annual amount set forth in Section 8 of the Summary, which shall be payable in the monthly installment amounts set forth in Section 8 of the Summary. Said monthly installments of Base Rent shall be payable in advance on the first (1 st ) day of each calendar month during the Lease Term, except that the Base Rent and Tenant’s Share of Computed Operating Expenses for the first (1 st ) full calendar month of the Lease Term shall be paid at the time of Tenant’s execution of this Lease. 3.2 Additional Rent . In addition to paying the Base Rent specified in Section 3.1 hereof, Tenant shall pay the amounts described in Section 6.1 and 6.2 , including both Tenant’s Share of Computed Operating Expenses and Management Fee Contribution (together, the “ Additional Rent ”), as adjustments to such Base Rent. 3.3 Adjustment of Rent on Commencement or Expiration . In the event the Lease Term commences or expires on a day other than the first (1 st ) day of a calendar month, Tenant shall pay to Landlord on the first (1 st ) day of the Lease Term, or on the first (1 st ) day of the month in which the Lease Term expires, a sum determined by multiplying one-thirtieth (1/30) of the monthly installment of Base Rent by the number of days in the first (1 st ) or last calendar month of the Lease Term. 3.4 Place of Payment; Landlord’s Rent Address . Base Rent, Tenant’s Share of Computed Operating Expenses and Management Fee Contribution, Additional Rent and all other sums or charges required by this Lease to be paid by Tenant to Landlord, all of which are herein sometimes collectively referred to as “ Rent , ” shall be paid to Landlord at Landlord’s Rent Address (as defined below) or to such other persons, or at such other places designated by Landlord. “ Landlord’s Rent Address ” means 1515 Wynkoop Street, Suite 800, Denver, Colorado 80202, or such other place as Landlord may, from time to time, designate in writing. 4. Security Deposit . Concurrently with Tenant’s execution of this Lease, Tenant shall deposit with Landlord a security deposit (the “ Security Deposit ”) in the amount set forth in Section 9 of the Summary to be held by Landlord as security for the faithful performance of every provision of this Lease to be performed by Tenant. If Tenant defaults with respect to any provision of this Lease, including, but not limited to, the provisions relating to the payment of Rent, 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 any amount which Landlord may spend or become obligated to suffer by reason of Tenant’s default or to compensate Landlord for any other loss or damage which Landlord may suffer by reason of Tenant’s failure to cure event of default within any cure period provided under the lease. If any portion of the Security Deposit is so used or applied, Tenant shall, within ten (10) days after written demand therefor, deposit cash with Landlord in an amount sufficient to restore the Security Deposit to its original amount, and Tenant’s failure to do so shall be deemed a material breach of this Lease. Except as required by applicable law, Landlord shall not be required to keep the Security Deposit separate from its general funds and Tenant shall not be entitled to interest on the Security Deposit. If Tenant shall fully and faithfully perform every provision of this Lease to be performed by it, the Security Deposit or any balance thereof shall be returned to Tenant (or Tenant’s assignee) at the expiration of the Lease Term and after Tenant has vacated the Leased Premises; provided , however , in no event shall Landlord be under any obligation to return the Security Deposit earlier than sixty (60) days after the expiration of the Lease Term. - 2 - 5. Use . 5.1 Permitted Use . (a) Permitted Use . Tenant shall use the Leased Premises solely for (i) general office use and (ii) subject to Section 5.1(b) below, Ancillary Uses, all of which shall be consistent with the character of the Project as a first-class office building project (collectively, the “ Permitted Use ”). (b) Ancillary Uses . Notwithstanding anything in this Lease to the contrary, the following ancillary uses (collectively, “ Ancillary Uses ”) are permitted in the Leased Premises: technical lab space, electronic manufacturing and assembly, software development for medical devices, product support and/or training facilities (i) that directly and exclusively support Tenant’s business and (ii) that are not inconsistent with the character and type of tenancy found in Comparable Buildings. “ Comparable Buildings ” means commercial buildings located in the greater Denver, Colorado metropolitan area that are comparable to the Building in quantity, size, type and quality. (c) Ancillary Use Interference . If (i) any Ancillary Use creates any vibration, electromagnetic, radio frequency, or other emission (collectively, “ Ancillary Use Interference ”) that, in the reasonable opinion of Landlord, materially and adversely affects the Building’s structure or any building system or otherwise materially interferes with any other occupant of the Project, and (ii) Tenant does not correct the Ancillary Use Interference within two (2) business days after receipt of telephonic or written notice from Landlord, Landlord may by written notice to Tenant require that Tenant shut down or disconnect the Ancillary Use causing such Ancillary Use Interference until the Ancillary Use Interference is remedied. Further, in the event that Landlord suspects that Tenant’s equipment is causing any Ancillary Use Interference, Tenant shall be required to provide any data and other information reasonably requested by Landlord in connection with such interference to Landlord within two (2) business days of Landlord’s request. Upon Landlord’s notice, Tenant will immediately shut down and discontinue the Ancillary Use causing such Ancillary Use Interference and not resume such Ancillary Use (except for intermittent testing on a schedule approved by Landlord) until the Ancillary Use Interference is corrected to the reasonable satisfaction of Landlord. (d) In General . Tenant shall not permit the Leased Premises to be used for any other purpose. Tenant acknowledges and agrees that (i) Landlord has not made any representations or warranties (A) regarding the applicable zoning or other laws governing the Real Property, (B) that the Permitted Use described hereinabove is permitted in the Building or at the Real Property under any applicable zoning or other laws now or hereafter existing, or (C) that the Leased Premises, Building or Real Property are in such condition or contain such improvements, systems or equipment (including, without limitation, the sprinklers and fire/life safety systems and equipment of the Building) as are adequate or necessary for the Permitted Use or the operation of Tenant’s business in the Leased Premises, and (ii) Tenant is leasing the Leased Premises based solely upon its own independent inspection and investigation of the Leased Premises, Building and Real Property and such applicable zoning and other laws, including without limitation, the quality, nature, and condition of the Leased Premises, Building and Real Property and any aspect or portion thereof for Tenant’s Permitted Use, including, without limitation, the improvements, sprinklers and fire/life safety systems, and other systems and equipment of the Building. - 3 - 5.2 Compliance with Laws . Tenant shall, at its sole cost and expense, promptly comply with all applicable Laws (as defined below) in effect during the Lease Term or any part of the Lease Term hereof, regulating Tenant’s particular use or occupancy of the Leased Premises or imposing any duty on Landlord or Tenant with regard thereto or with regard to alteration thereof, including the requirements of federal, state, county and municipal authorities now in force or which may hereinafter be in force. Tenant shall not use or permit the use of the Leased Premises in any manner which may tend to create waste or a nuisance; nor which may tend to obstruct or interfere with the rights of other tenants of the Project or, injure or annoy them. As used herein, “ Law ” or “ Laws ” shall mean all laws, ordinances, rules, regulations, other requirements, orders, rulings or decisions adopted or made by any governmental body, agency, department or judicial authority having jurisdiction over the Project, the Leased Premises or Tenant’s activities at the Leased Premises and any covenants, conditions or restrictions of record which affect the Project. 5.3 Insurance Cancellation . Tenant shall not do or permit anything to be done on or about the Leased Premises which may in any way increase the existing rate of any insurance policy covering the Building or the Project or any of its contents or cause cancellation of any such insurance policy. 5.4 Landlord’s Rules and Regulations . Tenant shall observe and comply with the Rules and Regulations which are in effect on the date hereof, as set forth in the attached Exhibit “D” , and such reasonable amendments and additions thereto as Landlord may from time to time promulgate with notice to Tenant and enforce 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 Project. 5.5 Compliance with Environmental Laws . (a) Tenant shall comply with all Environmental Laws (as defined below) pertaining to Tenant’s occupancy and use of the Leased Premises and concerning the proper storage, handling and disposal of any Hazardous Material introduced to the Leased Premises, the Building or the Project by Tenant or other occupants of the Leased Premises, or any of their respective employees, servants, agents, contractors, customers or invitees (collectively, “ Responsible Parties ”). As used herein, “ Environmental Laws ” shall mean all Laws governing the use, storage, disposal or generation of any Hazardous Material, including the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, and the Resource Conservation and Recovery Act of 1976, as amended, and “ Hazardous Material ” shall mean such substances, material and wastes which are or become regulated under any Environmental Law; or which are classified as hazardous or toxic under any Environmental Law; and explosives and firearms, radioactive material, asbestos, and polychlorinated biphenyls. Tenant shall not generate, store, handle or dispose of any Hazardous Material in, on, or about the Project without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion, except that such consent shall not be required to the extent of Hazardous Material packaged and contained in office products for consumer use in general business offices in quantities for ordinary day-to-day use provided such use does not give rise to, or pose a risk of, exposure to or release of Hazardous Material. In the event that Tenant is notified of any investigation or violation of any Environmental Law arising from Tenant’s activities at the Leased Premises, Tenant shall immediately deliver to Landlord a copy of such notice. In such event or in the event Landlord reasonably believes that a violation of Environmental Law exists, Landlord may conduct such tests and studies relating to compliance by Tenant with Environmental Laws or the alleged presence of Hazardous Material upon the Leased Premises as Landlord deems desirable, all of which shall be completed at Tenant’s expense. Landlord’s inspection and testing rights are for Landlord’s own protection only, and Landlord has not, and shall not be deemed to have assumed any responsibility to Tenant or any other party for compliance with Environmental Laws, as a result of the exercise, or non-exercise of such rights. Tenant hereby indemnifies, and agrees to defend, protect and hold harmless, Landlord, the Building’s property manager, the Lienholder (as defined below) and each of their respective officers, directors, members, managers, partners, affiliates, employees, agents and representatives (together with Landlord, collectively, the “ Indemnitees ”) from any and all loss, claim, demand, action, expense, liability and cost (including attorneys’ fees and expenses) arising out of or in any way related to the presence of any Hazardous Material introduced to the Leased Premises or the Project during the Lease Term (or any extension thereof) by Tenant or its Responsible Parties. In case of any action or proceeding brought against the Indemnitees by reason of any such claim, upon notice from Landlord, Tenant covenants to defend such action or proceeding by counsel chosen by Landlord, in Landlord’s sole discretion. Landlord reserves the right to settle, compromise or dispose of any and all actions, claims and demands related to the foregoing indemnity. If any Hazardous Material is released, discharged or disposed of on or about the Project and such release, discharge or disposal is not caused by Tenant or its Responsible Parties, such release, discharge or disposal shall be deemed casualty damage under Article 12 to the extent that the Leased Premises are affected thereby; in such case, Landlord and Tenant shall have the obligations and rights respecting such casualty damage provided under such Article 12 . (b) To the extent required by any governmental agency pursuant to Environmental Laws (each, a “ Compliance Obligation ”), Landlord shall, at Landlord’s expense (which shall not be included in Operating Expenses), remediate any Hazardous Materials located in, on or under the Project only to the extent such Hazardous Materials, (i) were in existence as of the Effective Date or were caused or exacerbated by Landlord following the Effective Date, (ii) were not caused or exacerbated by Tenant or Tenant’s Responsible Parties and (iii) are in violation of Environmental Laws. Landlord’s obligation to conduct remediation shall be to the extent required by Environmental Laws or voluntary cleanup requirements to obtain a No Further Action or appropriate closure. - 4 - 5.6 ADA Compliance . Landlord and Tenant acknowledge that the Americans With Disabilities Act of 1990 (42 U.S.C. §12101 et seq.) and regulations and guidelines promulgated thereunder, as all of the same may be amended and supplemented from time to time (collectively, the “ ADA ”) establish requirements for business operations, accessibility and barrier removal, and that such requirements may or may not apply to the Leased Premises, the Building and/or the Project depending on, among other things: (1) whether Tenant’s business is deemed a “public accommodation” or “commercial facility”, (2) whether such requirements are “readily achievable”, and (3) whether a given alteration affects a “primary function area” or triggers “path of travel” requirements. The parties hereby agree that: (a) Landlord shall be responsible for ADA Title III compliance in the Common Areas, except as provided below, (b) Tenant shall be responsible for ADA Title III compliance in the Leased Premises, including any leasehold improvements or other work to be performed in the Leased Premises under or in connection with this Lease, (c) Landlord may perform, or require that Tenant perform, and Tenant shall be responsible for the cost of, ADA Title III “path of travel” requirements triggered by Tenant alterations in the Leased Premises, and (d) Landlord may perform, or require Tenant to perform, and Tenant shall be responsible for the cost of, ADA Title III compliance in the Common Areas necessitated by the Building being deemed to be a “public accommodation” instead of a “commercial facility” as a result of Tenant’s use of the Leased Premises. Tenant shall be solely responsible for requirements under Title I of the ADA relating to Tenant’s employees. 5.7 Compliance with the LEED EB Certification and the Environmental Management Plan . (a) The LEED E EB Certification . Landlord may, but shall have no obligation to, operate the Building in a manner to obtain a LEED for Existing Buildings Operations & Maintenance certification from The Leadership in Energy and Environmental Design (LEED) Green Building Rating System™ (the “ LEED EB Certification ”). Landlord makes no representations or warranties with respect to the LEED EB Certification, and Landlord shall have no liability under this Lease if the LEED EB Certification is not obtained, or, if Landlord obtains the LEED EB Certification, such LEED EB Certification is subsequently modified, revoked or not renewed. (b) The Environmental Management Plan . Tenant agrees for itself and for its Responsible Parties to comply with the environmental management plan set forth on Exhibit “E” attached hereto and with all modifications and additions thereto that Landlord may make from time to time in Landlord’s sole and absolute discretion (collectively, the “ Environmental Management Plan ”). Nothing in this Lease shall be construed to impose upon Landlord any duty or obligation to enforce the Environmental Management Plan or the terms, covenants or conditions of any other lease as against any other tenant of the Project, and Landlord shall not be liable to Tenant for violation of the same by any other tenant of the Project; provided , however , that Landlord shall use reasonable efforts to enforce the Environmental Management Plan in a uniform and non-discriminatory manner. (c) General Compliance . Tenant shall, at Tenant’s sole cost and expense, in an amount not to exceed $5,000 each lease year of the Lease Term, (i) comply with such reasonable policies, programs and measures as may be reasonably necessary or required in order to obtain or maintain the LEED EB Certification and (ii) reasonably cooperate with Landlord and comply with any and all guidelines or controls concerning energy management imposed upon Landlord by federal or state governmental organizations or by any energy conservation association to which Landlord is a party or which is applicable to the Building. 6. Operating Expenses . 6.1 Tenant’s Obligation . For each Calendar Year during the Term, prior to January 1 of each such Calendar Year (or prior to the commencement of the Term as to the year in which the Commencement Date occurs), Landlord shall provide Tenant in writing with the projected Tenant’s Share of Computed Operating Expenses and Management Fee Contribution with respect to such Calendar Year, and thereafter Tenant shall pay Additional Rent for such year which shall include an appropriate amount on account of such projected Tenant’s Share of Computed Operating Expenses and Management Fee Contribution. Landlord shall, within a period of one hundred fifty (150) days (or as soon thereafter as possible) after the close of each such Calendar Year, provide Tenant a statement of the Operating Expenses for such year and a calculation based thereon of Tenant’s Share of Computed Operating Expenses and Management Fee Contribution for such year (“ Operating Expense Statement ”). If Tenant’s Share of Computed Operating Expenses and Management Fee Contribution for such year is greater than the projected amount theretofore paid by Tenant for such year, Tenant shall pay to Landlord within thirty (30) days after Tenant’s receipt of the Operating Expense Statement the amount of such excess. However, if Tenant’s Share of Computed Operating Expenses and Management Fee Contribution for such year is less than the projected amount theretofore paid by Tenant for such year, Landlord shall pay to Tenant within thirty (30) days after Tenant’s receipt of the Operating Expense Statement the amount of such overpayment. - 5 - 6.2 Definitions . (a) “ Calendar Year ” shall mean any twelve-month period, January through December, which contains any part of the Term of this Lease. (b) “ Computed Operating Expenses ” shall mean, with respect to each Calendar Year during the Term, the actual Operating Expenses for said Calendar Year computed on the accrual basis and in accordance with the terms of this Lease. (c) “ Management Fee Contribution ” shall mean the sum of (i) three percent (3%) of the Base Rent (as the same may be adjusted from time to time as set forth above), plus (ii) three percent (3%) of Tenant’s Share of Computed Operating Expenses (d) “ Operating Expenses ” shall mean all expenses, costs and disbursements which Landlord shall pay or incur or become obligated to pay or incur because of or in connection with the ownership, operation or maintenance of the Project (which term for purposes hereof means and includes the Building, the Parking Facility, outside plaza areas, land and other improvements) which are directly attributable or reasonably allocable to the Building in accordance with sound accounting principles, consistently applied,, including but not limited to, the following: (i) Wages, salaries and other compensation of all employees, on site and offsite, engaged in the operation, maintenance, repair or access control of the Project, including personnel for security or who may provide traffic control relating to ingress and egress to and from the parking facilities serving the Project to the adjacent public streets. All taxes, insurance, benefits, travel expenses, continuing educational expenses, and trade association dues and expenses relating to employees providing these services shall be included; but if the employee does not work full time with respect to the Project, all of such expenses related to the employee shall be equitably pro-rated based upon the proportionate amount of time expended by the employee with respect to the Project; (ii) “ Tax Expenses ,” which, for purposes hereof, shall mean the Office Portion (defined below) of all real estate and personal property taxes and assessments (general, special or otherwise) and license or other fees, levied or assessed by any federal, state, city and county or local government or by any other taxing district or authority upon or with respect to the Project, the maintenance equipment and vehicles, elevators, building machinery and other personal property owned or leased by Landlord and used for the operation of the Project. Should any governmental authority having jurisdiction over the Project impose an income or franchise tax or a tax on rents in substitution, in whole or in part, for such real estate or personal property taxes or license or other fees or in lieu of any increase in such taxes or fees, such income, franchise or rent tax shall be deemed to constitute Taxes hereunder. All references to Taxes for a particular year shall be deemed to refer to Taxes levied, assessed or otherwise imposed in such year without regard to when such Taxes are payable. Taxes shall also include all special taxes and special assessments, all of which or installments of which are required to be paid, or which Landlord elects to pay, during any Calendar Year (including, without limitation, the Interlocken Consolidated Metropolitan District); (iii) The Office Portion of all insurance costs relating to the Project, including, but not limited to, the cost of casualty, rental abatement and liability insurance applicable to the Project and Landlord’s personal property used in connection therewith; (iv) All costs and expenses of repairing, operating and maintaining the heating, ventilating and air conditioning system for the Project, including the cost of all utilities required in the operation thereof, except those paid directly by tenants of the Project and including the cost of replacements of equipment used in connection with such repair and maintenance work and all costs and expenses incurred in making alterations or additions to the heating, ventilating and air conditioning system in order to comply with governmental rules, regulations and statutes; - 6 - (v) Amortization (together with reasonable financing charges) in accordance with generally accepted accounting principles (“GAAP”), of the costs of capital investment items that are installed primarily for the purpose of reducing Operating Expenses, promoting safety, complying with governmental requirements, or maintaining the quality of the Project; (vi) All costs and expenses of all service and maintenance agreements for the Project and the equipment therein, including but not limited to, the cost of janitorial services, window washing, elevator maintenance, landscaping, maintenance and repair and access control; (vii) Cost of all utilities for the Project, including but not limited to, the cost of water, power, heating, lighting, air conditioning and ventilating (excluding those costs bill to specific tenants) and the Chargepoint network service fee; (viii) All costs incurred in the operations, management, and maintenance of the Parking Facility, to include the Parking Facility’s share of property taxes whether separately assessed or through an allocation of the taxes assessed on the Project; (ix) All internal control audit and operating expense audit costs for the Project, and an equitable allocation of the costs of the off-site project accounting, senior property management, payroll and risk management departments of Landlord and/or the property manager, including personnel costs, office rent and other associated costs incurred in connection with such departments, which allocation shall be based on the amount of time spent by personnel in such departments in connection with the operation and management of the Project; (x) Office rent and other costs of a management office within the Project. (xi) Costs of operating a security/reception desk and/or other amenities or services for the general benefit of tenants of the Building that may be provided in the future, such as a fitness center; provided, however, that Landlord does not additionally charge tenants in the Project a fee for the use of such amenities; (xii) All costs and expenses incurred by Landlord in operating, managing, repairing and maintaining the Project, including all sums expended in connection with general maintenance and repairs, resurfacing, painting, restriping, cleaning, replacing wall coverings, floor coverings, ceiling tiles, window coverings and fixtures sweeping and janitorial services, window washing, maintenance and repair of elevators, stairways, sidewalks, curbs and Project signage and directories, solar panels, planting and landscaping, lighting and other utilities, maintenance and repair of any fire protection systems, automatic sprinkler systems, lighting systems, emergency back-up utility systems, storm drainage systems and any other utility systems, personnel to implement such services and to police th