1
EXHIBIT 10.6
BASIC LEASE INFORMATION
The following Basic Information is incorporated into and made a part of this
lease. Each reference in this lease to any of the Basic Lease Information shall
mean the respective information set forth below and shall be construed to
incorporate all of the terms provided under the particular lease paragraph(s)
pertaining to such information. In the event of a conflict between any Basic
Lease Information and the lease, the lease shall control.
IDENTIFICATION DATE OF LEASE: 02/28/97
X
____ New _____ Renewal _____ Expansion _____ Other
1. NAME OF BUILDING: Kaleido II
__________
ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
________________________________________
2. OWNER/LESSOR: Eurus Estates II, Ltd.
______________________
ADDRESS: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇/▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
______________________________________
3. SUITE NUMBER: II-300
______
4. USABLE SF: 7,121 ADD-ON FACTOR: 22.73% RENTABLE SF: 8,739
_____ ______ _____
TOTAL BLDG. SF: 73,149 PRO RATA SHARE: 11.95%
______ _______
5. LESSEE NAME: Crossroads Systems, Inc.
_________________________
a) Lessee is a corporation
b) Lessee Address for Notice:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇-▇▇▇/▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
_______________________________________________________
c) Lessee Contact Person: _____________________________
Phone: ______________________________ Fax: ______________________________
d) Lessee Taxpayer ID#: __________________________________________________
SS#: ___________________________ DL#/State: ________________________
6. LEASE TERM: Sixty (60) full calendar months
Commencement Date: 05/01/97 Expiration Date: 04/30/02
________ ________
Rent and Pass Thru Commencement Date: 05/01/97 Expiration Date: 04/30/02
________ ________
7. BASE RENT: TERM MONTHLY RENT ANNUAL RENT ANNUAL RENT psf OF NRA
____ ____________ ___________ ______________________
From 05/01/97 To 04/30/98 $13,108.50 $157,302.00 $18.00
From 05/01/98 To 04/30/99 $13,472.63 $161,671.56 $18.50
From 05/01/99 To 04/30/00 $13,836.75 $166,041.00 $19.00
From 05/01/00 To 04/30/01 $14,200.88 $170,410.56 $19.50
From 05/01/01 To 04/30/02 $14,565.00 $174,780.00 $20.00
Late Charge: 5% of monthly base rent.
________________________
Date assessed: Five (5) days after due date.
_____________________________
8. EXPENSE STOP: $7.38 per square foot per year
________
a) Estimated Operating Expenses Per Budget $7.38 /sq.ft./year
__________________
b) Less Expense Stop $7.38 /sq.ft./year
__________________
c) Estimated Initial Pass-Thru $0.00 /sq.ft./year
__________________
d) Estimated Monthly Pass-Thru (actual) $0.00 /mo
(Subject to annual adjustment for actual expenses) __________________
9. PARKING: Number of Spaces: N/A (reserved) Rate Per Space $N/A /month reserved
___ ___
Number of Spaces: (unreserved) Rate Per Space $0.00 /month unreserved
_____ ____
10. SECURITY DEPOSIT: a) Amount: $14,565.00 (last month's rent)
__________
b) Paid by ▇▇▇▇: X Yes No
_______ ______
11. TENANT FINISH OUT PROVISIONS:
a)
b) $5.00 /sq.ft. of net USABLE area allowance
____
c) $35,605.00 allowance (actual amount)
_________
d) Amount of overage owed by Tenant $ Payment Schedule:
_________ __________
e) Notes: SEE EXHIBIT E.
12. SPECIAL CONDITIONS (EXHIBIT J)
a) Current Financials received: Yes No
______ ______
Credit Report received: Yes No
______ ______
OT HVAC charge: X Yes No $10.00 / hour
______ ______ ______
b) Other/Notes: RIGHT TO TERMINATE (SEE EXHIBIT J). OPTION FOR ADDITIONAL
SPACE (SEE EXHIBIT M).
Lessor DT
-----------
Lessee BRS
-----------
Page 1 of 2
2
BASIC LEASE INFORMATION FOR CROSSROADS SYSTEMS, INC.
13. GUARANTY INFORMATION
This lease ( ) is (X) is not (check one) guaranteed by others. The name
and title of each guarantor is shown below a and on the signature page(s)
at the end of this lease.
14. LESSEE SIGNATURE REQUIREMENTS
Lessee is ( ) an individual(s), ( ) several individuals, ( ) a general
partnership, ( ) a limited partnership, ( ) a joint venture, ( ) an
unincorporated association, ( ) a professional association, ( ) sole
proprietorship, or (X) a corporation (check one).
Such partnership, joint venture, unincorporated association, or corporation
is organized or chartered under the laws of the State of TEXAS.
_____
▇▇▇▇▇▇'s name stated at the beginning of this lease ( ) is or ( ) is not
an assumed name. If so, has an assumed name certificate name been received?
Yes No
______ ______
15. BROKER INFORMATION:
a) Listing Broker: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇ ▇▇▇▇/ The ▇▇▇▇▇▇ Company
______________________________________________
b) Leasing Co-Broker and Company: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇/The ▇▇▇▇▇▇ Company
_________________________________
c) Tenant Rep letter attached: Yes No
_____ _____
d) Written agreement for renewal commission: Yes No %
_____ _____ _____
16. SIGNATURES:
LESSOR LESSEE
Eurus Estates II, Ltd. Crossroads Systems, Inc.
----------------------------------- ----------------------------------
Printed name of company or firm Printed name of company or firm
▇▇▇ ▇▇▇▇, CPM ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- ----------------------------------
Printed name of person signing Printed name of person signing
/s/ ▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- ----------------------------------
Authorized Person's Signature Authorized Person's Signature
Vice President, ▇▇▇▇▇▇ Management, Inc.
Authorized Managing Agent for
Eurus Estates II, Ltd. President
----------------------------------- ----------------------------------
Title of person signing Title of person signing
March 31, 1997 March 3, 1997
----------------------------------- ----------------------------------
Date signed (must be filled in) Date signed (must be filled in)
Page 2 of 2
Lessor DT
----------
Lessee BRS
----------
3
INDEX TO OFFICE LEASE
EURUS ESTATES 11, LTD. (Lessor) and
CROSSROADS SYSTEMS, INC. (Lessee)
SECTION TITLE Lease Page
1.1. The leased premises .............................. 3
1.2. Use .............................................. 3
1.3. Usable area ...................................... 3
1.4. Rentable area .................................... 3
2.1. Base rent and additional rents ................... 3
3.1. Date and place of payment ........................ 3
3.2. Late payments .................................... 4
3.3. Security deposit ................................. 4
4.1. Term, commencement, and anniversary .............. 4
4.2. Acknowledgment of lease .......................... 4
4.3. Delivery of possession ........................... 4
5.1. Tenant finish-out ................................ 5
6.1. Quiet possession ................................. 5
7.1. Utilities and services by Lessor ................. 5
7.2. Utilities and services by Lessee ................. 5
7.3. Interruption of utilities or services ............ 5
7.4. Extra electricity ................................ 5
7.5. Extra heating or air conditioning ................ 6
8.1. Maintenance and repairs by Lessor ................ 6
8.2. Maintenance and repairs by Lessee ................ 6
8.3. Telecommunications ............................... 6
9.1. Access, ▇▇▇▇, locks, and security ................ 6
9.2. Parking .......................................... 7
10.1. Occupancy, nuisance, and hazards ................. 7
11.1. Taxes ............................................ 7
12.1. Insurance ........................................ 7
12.2. Waiver of subrogation ............................ 8
12.3. Hold harmless .................................... 8
13.1. Alterations by Lessee ............................ 8
13.2. Americans with Disabilities Act .................. 9
14.1. Removal of property by Lessee .................... 9
15.1. Subletting and assignment ........................ 9
16.1. Destruction by fire or other casualty ............ 9
17.1. Condemnation . ................................... 10
18.1. Default by Lessor ................................ 10
19.1. Default by Lessee ................................ 10
20.1. Lien for rent .................................... 12
21.1. Attorney's fees, interest, and other expenses .... 12
22.1. Nonwaiver ........................................ 12
23.1. Building rules ................................... 12
24.1. Transfer of ownership by Lessor .................. 13
25.1. Mortgages ........................................ 13
26.1. Surrender of premises ............................ 13
27.1. Holding over ..................................... 13
28.1. Signs and building name .......................... 13
28.2. Relocation of Lessee ............................. 13
29.1. Notices .......................................... 14
30.1. Estoppel certificates ............................ 14
Page 1
Lessor DT
KALEIDO II -----------
CROSSROADS SYSTEMS, INC. Lessee BRS
-----------
4
31.1. Successors .............................................................................................. 14
31.2. Leasing agent commissions ............................................................................... 14
32.1. Building operating expense .............................................................................. 14
33.1. Representations and warranties by lessor ................................................................ 14
34.1. Representations and warranties by lessee ................................................................ 14
35.1. Place of performance .................................................................................... 15
36.1. Miscellaneous ........................................................................................... 15
37.1. Special conditions ...................................................................................... 15
38.1. Exhibit list ............................................................................................ 15
39.1. Lease dates and authority to sign ....................................................................... 16
Exhibit Page
Exhibit A Floor Plan of Lessee's Office Space (paragraph 1.1.) ........................................... 18
Exhibit B Legal Description of Office Building (paragraph 1.1.) .......................................... 19
Exhibit C Building Operating Expense Passthrough Calculations (paragraphs 2.1. and 32.1.) ................ 20
Exhibit D Acknowledgment of Lease (paragraph 4.2.) ....................................................... 22
Exhibit E Construction by Lessor (paragraph 5.1.) ........................................................ 24
Exhibit F-1 Office Building Parking Rules (paragraph 9.2.) ................................................. 25
Exhibit F-2 Office Building Rules (paragraphs 9.2. and 23.1.) .............................................. 26
Exhibit G Estoppel Certificate (paragraph 30.1.) ......................................................... 29
Exhibit H Office Lease Guaranty (paragraph 37.1.) ........................................................ 31
Exhibit I Certificate of Corporate Resolution Authorizing Lease or Guaranty (paragraphs 37.1 & 39.1) ..... 33
Exhibit J Special Conditions (paragraph 37.2.) ........................................................... 34
Financial Statement Requirement
Exhibit K Hazardous Materials Statement .................................................................. 35
Exhibit L Acknowledgment of Receipt of Agency Disclosure ................................................. 36
EXHIBIT M OPTION FOR ADDITIONAL SPACE .................................................................... 37
Page 2
Lessor DT
KALEIDO II -----------
CROSSROADS SYSTEMS, INC. Lessee BRS
-----------
5
OFFICE LEASE
KALEIDO II
This is a Lease Agreement made and entered into between Lessor Name Specified in
Basic Lease Information #2, as "Lessor", and Lessee Name Specified in Basic
Lease Information #5, as "Lessee", whether one or more.
1.1. THE LEASED PREMISES. Lessor hereby leases to Lessee, and Lessee hereby
leases from Lessor the "Leased Premises" which consists of "Lessee's Office
Space" and "Common Areas" as defined below.
(a) LESSEE'S OFFICE SPACE. "Lessee's Office Space", to which Lessee shall have
exclusive use rights, consists of suite(s) Specified in Basic Lease Information
#3, representing the office space outlined and shaded on the floor plan
contained in Exhibit A. Such space is located in the building on a tract of
land, legally described by lot and block or metes and bounds in Exhibit B. The
street address of the building is Specified in Basic Lease Information #1.
(b) COMMON AREAS. The "common area", to which Lessee shall have non-exclusive
use rights, consists of (1) the interior common area located in the above
described building, i.e., areas normally accessible to tenants such as the
hallways, stairwells, elevators, lobby, restrooms, and snack bar areas, and (2)
the exterior common area located outside the building on the above described
land, i.e., loading areas, sidewalks, driveways, parking garage, parking areas,
and other open areas (if any), subject to paragraph 9.2 on parking.
1.2. USE. ▇▇▇▇▇▇'s office space may be used only for general office purposes.
The name of ▇▇▇▇▇▇'s business is Specified in Basic Lease Information #5.
1.3. USABLE AREA. ▇▇▇▇▇▇'s approximate "usable area" is Specified in Basic Lease
Information #4. It is the office space outlined and shaded in Exhibit A. Such
area is measured from the interior of the exterior walls and the exterior glass
lines of the building to the middle of the remaining perimeter walls of the
office space. This is in accordance with the BOMA International Standard of
Floor Measurement.
1.4. RENTABLE AREA. ▇▇▇▇▇▇'s approximate "rentable area" is Specified in Basic
Lease Information #4. It consists of ▇▇▇▇▇▇'s "usable area" as defined above,
plus ▇▇▇▇▇▇'s prorata share of the building common areas as set forth in Basic
Lease Information #4. Building common areas are defined as all corridors,
restrooms, snack bars, building equipment rooms, telephone closets, janitor
closets, enclosed lobby, entrance areas, and other public areas in the building,
excluding elevator shafts, stairwells, vertical chases, and enclosed parking
areas. This is in accordance with the BOMA International Standard of Floor
Measurement.
2.1. BASE RENT AND ADDITIONAL RENTS. Lessee shall pay to Lessor a "base rent"
Specified in Basic Lease Information #7 per calendar year, which amounts to the
sum(s) Specified in Basic Lease Information #7 per calendar month. Such base
rent is equivalent to the sums Specified in Basic Lease Information #7 per
square foot per year for ▇▇▇▇▇▇'s rentable area. The base rent is subject to
adjustment as provided in paragraph 32.1. Additional rent (representing
▇▇▇▇▇▇'s prorata share of building operating expenses over the expense stop
Specified in Basic Lease Information #8 shall be paid in accordance with
paragraph 32.1. Building operating expenses up to such expense stop amount
shall be paid by Lessor.
3.1. DATE AND PLACE OF PAYMENT. The monthly rent and one-twelfth of ▇▇▇▇▇▇'s
share of estimated building operating expenses under paragraph 32.1 shall be due
on the first day of each calendar month without demand. Partial months shall be
prorated. All rent and other sums are due in the county where the building is
located at the address designated by Lessor from time to time. All sums due by
Lessee are without right of setoff or deduction. Monies mailed are considered
timely paid only if received by Lessor by the due date; however rents
Page 3
Lessor DT
KALEIDO II -----------
CROSSROADS SYSTEMS, INC. Lessee BRS
-----------
6
postmarked one or more days before due date and received after the due date
shall be considered as timely received by ▇▇▇▇▇▇. Rent and late payment charges
shall be paid without notice or demand. All other sums shall be due upon
delivery of written notice in accordance with paragraph 29.1.
3.2. LATE PAYMENTS. If any rent payment or other sum due by Lessee to Lessor is
received and accepted by Lessor later than five (5) days after its due date,
Lessee shall pay a late charge of 5% of such rent payment or other sum plus 1%
thereof for each day thereafter (for up to 15 days) until such rent or other sum
is paid. Late charges shall be considered liquidated damages for Lessor's time
inconvenience and overhead (except for attorneys fees and litigation costs) in
collecting late rent. Lessor's acceptance of late rent or other sum shall not
constitute permission for Lessee to pay the rent or other sum late thereafter
and shall not constitute a waiver of ▇▇▇▇▇▇'s remedies for subsequent late
payments. Late payment charges are due immediately upon notice or demand. All
payments shall be by check or money order on a local bank, not cash. For each
returned check, Lessee shall pay all applicable bank charges incurred by Lessor
plus $50.00. Payments of any kind received by Lessor on behalf of Lessee may be
applied at Lessor's option to nonrent items first, then to rent. Payment of rent
by Lessee shall be an independent covenant. If Lessee has not timely paid
rentals and other sums due on two or more occasions, or if a check from Lessee
is returned for insufficient funds or no account, Lessor may for the next 12
months require that all rent and other sums due be paid by cashier's check,
certified check, or money order, without prior notice.
3.3. SECURITY DEPOSIT. At the time of execution of this lease, Lessee shall
deposit with Lessor cash in the sum Specified in Basic Lease Information #10 to
secure performance of Lessee's obligations under this lease. Lessor shall have a
lien on the security deposit for that purpose. If ▇▇▇▇▇▇ fails to pay rent or
other sums when due under this lease, Lessor may apply any cash security deposit
toward amounts due and unpaid by Lessee. In lieu of a cash security deposit,
Lessee may furnish Lessor at time of execution of this lease an irrevocable
letter of credit in the sum Specified in Basic Lease Information #10-c on a
financial institution in Austin, Texas, expiring no sooner than the lease
expiration date. Lessor may draw against such letter of credit by affidavit
stating the amount due and unpaid by ▇▇▇▇▇▇ and the nature of ▇▇▇▇▇▇'s default
under this lease. If the letter of credit is not renewed or extended 30 days
before its expiration date, Lessor may by affidavit draw down the entire amount
to serve as a cash security deposit. Lessee shall immediately restore the
security deposit to its original amount after any portion of it is applied to
amounts due and unpaid by Lessee.
4.1. TERM, POSSESSION, AND ANNIVERSARY. The initial lease term shall be for the
number of full calendar months from commencement date, plus the remainder of the
last month. The commencement date of this lease shall be the earlier of (a) the
date Specified in Basic Lease Information #6, (b) the date Lessee opens for
business in Lessee's office space, or (c) five (5) days after Lessor delivers
possession of Lessor's office space to Lessee and gives Lessee written notice
that ▇▇▇▇▇▇'s work (as described in Exhibit E) is substantially complete.
▇▇▇▇▇▇'s anticipated delivery date of possession is May 1, 1997. If Lessor
delays in delivering possession of ▇▇▇▇▇▇'s office space as shown on Exhibit A,
the commencement and anniversary dates shall be delayed in accordance with
Exhibit D.
4.2. ACKNOWLEDGMENT OF LEASE. Upon commencement of this lease, Lessor and
▇▇▇▇▇▇ shall execute a recordable acknowledgment of this lease which is
attached as Exhibit D and which will confirm the commencement date, ending
date, annual anniversary date of the lease, and approximate square footage in
▇▇▇▇▇▇'s office space.
4.3. DELIVERY OF POSSESSION. Lessor shall deliver keys and/or access cards or
codes and possession of ▇▇▇▇▇▇'s office space to Lessee on the lease
commencement date stated in paragraph 4.1 unless otherwise agreed in writing by
the parties. Lessee shall not be liable for rent until ▇▇▇▇▇▇ delivers
possession of the leased premises to Lessee. If there is a delay in delivery of
possession, rent shall be abated until ▇▇▇▇▇▇'s office space is ready for
occupancy; and neither Lessor nor Lessor's agents shall otherwise be liable for
any damages; and the lease shall not terminate. Internal construction shall, to
the extent "readily achievable", comply with state and federal architectural
barrier standards.
Page 4
Lessor DT
KALEIDO II -----------
CROSSROADS SYSTEMS, INC. Lessee BRS
-----------
7
5.1. TENANT FINISH-OUT. (Check one):
[ ] (a) Lessor shall provide no tenant finish-out or improvements
since Lessee has taken ▇▇▇▇▇▇'s office space "as is".
[X] (b) Lessor shall perform any special construction described in
Exhibit E. Costs of tenant finish-out or special construction
shall be paid for pursuant to such exhibit.
6.1. QUIET POSSESSION. If Lessee is current and in compliance with all of
Lessee's obligations under this lease, Lessee shall be entitled to peaceful and
quiet possession and enjoyment of ▇▇▇▇▇▇'s office space, subject to the terms
and conditions of this lease. Lessee shall have access to the building parking
garage, if applicable and common parking areas at all times, subject to parking
fees and the rules referred to in paragraphs 9.2 and 23.1. Lessor shall make
diligent efforts to have all other tenants in the building comply with building
rules. Otherwise, failure of other tenants to comply with such rules shall not
be considered a default by Lessor. Construction noise or vibrations shall not be
considered a default by Lessor.
7.1. UTILITIES AND SERVICES BY ▇▇▇▇▇▇. Except where otherwise stated in this
lease, Lessor shall pay for and furnish in a timely and diligent manner to
Lessee the following utilities (subject to Lessee being required to pay for same
directly to the utility provider) and services and no others, subject to
paragraph 32.1 regarding Lessee's payment of ▇▇▇▇▇▇'s prorata share of building
operating expenses.
(a) air conditioning and heating as reasonably required for comfortable use and
occupancy under normal office conditions from 7:00 a.m. to 6:00 p.m. on
Monday through Friday, and from 8:00 a.m. to 12:00 p.m. on Saturday, but
not on Sunday, New Year's Day, Memorial Day, July 4th, Labor Day,
Thanksgiving or Christmas so long as these times and dates comply with
present and future governmental laws or guidelines, including utilities
such as electricity, gas, and water necessary for operation of same;
(b) water and wastewater services for common areas;
(c) janitorial and cleaning services for the building five days a week;
(d) electricity for standard office equipment and lighting;
(e) trash collection services (dumpster or garbage cans);
(f) pest control services as needed in the reasonable judgment of ▇▇▇▇▇▇;
(g) landscaping and parking lot maintenance services;
(h) repair and maintenance services pursuant to paragraph 8.1;
(i) replacement of fluorescent light bulbs and ballasts in building standard
lighting fixtures (but not incandescent light bulbs for nonstandard
fixtures or for ▇▇▇▇▇▇'s lamps); and
(j) elevator service, if there is an elevator in the building.
7.2. UTILITIES AND SERVICES BY ▇▇▇▇▇▇. If applicable, Lessee shall pay for all
utilities and services not expressly furnished by Lessor under paragraph 7.1.
Lessee shall pay for all electricity consumed through any individual electrical
meter(s) or submeter(s) serving ▇▇▇▇▇▇'s office space. Costs of such utilities
are not considered building operating expenses to be allocated among all tenants
under paragraph 32.1. Service through individual electrical meters which
exclusively serve ▇▇▇▇▇▇'s office space shall be in the name of ▇▇▇▇▇▇. Lessor
reserves the right to submeter electricity and/or water. Any electricity or
water submetering shall be billed to and paid by Lessee at Lessor's average cost
per KWH or gallon, and no more. If the water bill from the utility company
includes wastewater charges, Lessee's liability for water submetering shall
include corresponding wastewater costs (if any).
7.3. INTERRUPTION OF UTILITIES OR SERVICES. Temporary interruption or
malfunction of utilities, services, and/or telephones shall not render Lessor
liable for damages, rent abatements, or release of any Lessee obligation. Lessor
shall use diligent efforts to have such utilities and services restored as soon
as reasonably possible.
7.4. EXTRA ELECTRICITY. There shall be no extra electricity charges for
typewriters, facsimile machines, word processors, dictating equipment, adding
machines, desk top calculators, lamps, or other standard 110 volt office
Page 5
Lessor DT
KALEIDO II -----------
CROSSROADS SYSTEMS, INC. Lessee BRS
-----------
8
equipment. However, Lessee shall pay Lessor monthly, as billed, for charges
which are separately metered or which Lessor may reasonably compute for
electricity utilized by Lessee for the following purposes: x-ray machines,
hotplates, electric heaters, 220 volt equipment, computers (other than desktop
or word processor computers), or other electrical service not standard for the
building.
7.5. EXTRA HEATING OR AIR CONDITIONING. If Lessee requests air conditioning or
heating after the hours as set forth in paragraph 7.1 (a), Lessor may charge
Lessee the same extra hourly fee charged by Lessor for after-hour air
conditioning or heating to other tenants in the building.
8.1. MAINTENANCE AND REPAIRS BY LESSOR. Lessor shall repair and/or replace, as
needed, the following items as a building expense under paragraph 32.1, so long
as they are building standard items: light bulbs, ballasts, and fixtures;
plumbing; hardware; appliances; doors; and wall and window coverings. Lessor
shall use diligence to provide for the reasonable cleaning, maintenance, repair,
reconnection of interrupted utilities or services, and landscaping of common
areas, subject to any reimbursement obligations of Lessee under paragraph 8.2.
Lessor may rekey at any time. Lessor may temporarily close any part of the
common facilities if reasonably necessary for repairs or construction. Repairs
and maintenance shall be in accordance with applicable governmental
requirements.
8.2. MAINTENANCE AND REPAIRS BY LESSEE. Lessee shall promptly reimburse Lessor
for the cost of repairing or replacing non-building standard items and the cost
of repairing or replacing damage which is caused inside Lessee's office space by
Lessee, Lessee's agents, employees, family, or licensees, invitees, visitors, or
customers or outside Lessee's office space by Lessee or Lessee's employee's,
agents, or contractors. Cost of repair shall include 5% for supervision fee.
Lessor may require advance payment therefor prior to repair or replacement.
Lessor shall have right of approval of all repairmen or maintenance personnel.
Lessee shall not damage or allow other persons listed above to damage any
portion of the leased premises. Lessee shall pay for replacement of all
nonbuilding standard light bulbs and for unstopping any drains or water closets
in Lessee's office space. If Lessee or ▇▇▇▇▇▇'s workmen or contractors are
permitted to repair, alter, or modify Lessee's office space, Lessee shall
warrant that no mechanic or materialman's lien shall be filed against the leased
premises and that all such contractors shall provide evidence of liability
insurance as required by Lessor. All such work shall be in accordance with
applicable governmental requirements.
8.3. TELECOMMUNICATIONS. All telecommunications equipment necessary to serve
Lessee shall be located in Lessee's office space and paid for by Lessee, or, at
Lessor's option and at Lessee's expense, in a lockable enclosure in a common
area location designated by Lessor. Lessee may not require Lessor to install or
allow others to install telecommunication lines or equipment elsewhere in the
building. Lessee expressly waives any rights to require same under any
circumstances.
9.1. ACCESS, KEYS, LOCKS, AND SECURITY. (a) Access. Lessee shall have access to
▇▇▇▇▇▇'s office space at all times. Lessor shall have access to ▇▇▇▇▇▇'s office
space at reasonable times for reasonable business purposes upon prior notice to
Lessee except notice shall not be necessary in the event of an emergency
threatening life or property or the lawful exercise of ▇▇▇▇▇▇'s remedies in case
of default by ▇▇▇▇▇▇. Lessor may show Lessee's office space ninety (90) days
before the lease expiration date or the date Lessee gives notice to vacate,
whichever is earlier.
(b) Keys. Lessor shall furnish Lessee up to five (5) keys or access codes or
cards for ▇▇▇▇▇▇'s office space, up to five (5) keys or access codes or cards
for the main exterior entry doors of the building if such door is locked after
hours, and two (2) keys or access codes or cards to Lessee's mailbox in the
building. An initial deposit of $10.00 shall be charged for each mailbox key and
office key, or access card. Additional or replacement keys or access codes or
cards shall be furnished at the same deposit charged to all other tenants in the
building at the time of ▇▇▇▇▇▇'s request. Lessor shall not be liable for risk of
loss resulting from ▇▇▇▇▇▇'s keys, access codes, or cards being stolen, lost or
used by unauthorized persons. Lessor reserves the right to rekey or change locks
for security reasons if new keys are timely furnished to Lessee.
Page 6
Lessor DT
KALEIDO II -----------
CROSSROADS SYSTEMS, INC. Lessee BRS
-----------
9
(c) Locks. Lessee may not add locks, change locks, or rekey locks without
written permission of Lessor. Locks may be changed at Lessee's request and
expense. If locks to the office space are changed, Lessor may specify kind and
brand of locks, placement, installation, master key compatibility, etc. If
Lessee or any of ▇▇▇▇▇▇'s employees lock themselves out of ▇▇▇▇▇▇'s suite, said
person must call a fellow-employee to gain access. NEITHER LESSOR NOR THE
MANAGEMENT COMPANY PERSONNEL ARE AUTHORIZED TO UNLOCK A DOOR AFTER HOURS EXCEPT
FOR EMERGENCY OR CLEANING PURPOSES.
(d) Security. Lessor shall have no duty to provide any security services of any
kind unless expressly provided in this lease. Lessor shall not be liable to
Lessee or Lessee's employees, family, customers, invitees, contractors, or
agents for injury, damage, or loss to person or property caused by criminal
conduct of other persons, including theft, burglary, assault, vandalism or other
crimes. Lessee shall lock its office space doors when the last person leaves
such office space for the day.
9.2. PARKING. (a) Lessor shall have sole control over parking. Parking rules, if
applicable, are contained in attached Exhibit F-1. If vehicles are parked in
violation of Lessor parking rules or in violation of state statutes, Lessor may
exercise vehicle removal remedies under Article 6701g-2 of the Texas Civil
Statutes upon compliance with statutory notice. There shall be no reserved
parking spaces unless agreed in writing by ▇▇▇▇▇▇. IF APPLICABLE, Lessee and
▇▇▇▇▇▇'s employees and customers shall have exclusive right to park in Lessee's
assigned parking spaces which are shown on the map contained in Exhibit A.
(b) Lessee shall have the right to rent from Lessor, on a month-to-month basis
at rates in effect from time to time, one vehicle parking space in the
building's parking garage (if applicable) for each N/A square feet of Lessee's
rentable area as set forth in paragraph 1.4. Such parking spaces shall not be
specified permanent spaces unless otherwise agreed in writing by ▇▇▇▇▇▇. Lessor
shall have sole control over the parking of all vehicles (including but not
limited to cars, trucks, recreational vehicles, trailers, bicycles, and
motorcycles) and shall designate parking areas and building service areas.
Parking rules are contained in attached Exhibit F-1.
10.1. OCCUPANCY, NUISANCE, AND HAZARDS. Lessee's office space shall be occupied
only by Lessee or Lessee's employees and shall not be left entirely vacant or
used exclusively for storage. Lessee and ▇▇▇▇▇▇'s agents, employees, family,
licensees, invitees, visitors, and contractors shall comply with all federal,
state, and local laws relating to occupancy or to criminal conduct while such
persons are on the leased premises. Lessee and the persons listed above shall
not (1) use, occupy, or permit the use or occupancy of the leased premises for
any purpose which is directly or indirectly forbidden by such laws or which may
be dangerous to life or property, (2) permit any public or private nuisance, (3)
disturb the quiet enjoyment of other tenants, (4) do anything which might emit
offensive odors or fumes, (5) make undue noise or vibrations, (6) permit
anything which would cancel insurance coverage or increase the insurance rate on
the building or contents, or (7) otherwise damage the leased premises.
11.1. TAXES. Lessor shall be responsible for payment of all taxes and
assessments against the building subject to ▇▇▇▇▇▇'s obligation to pay Lessor
for ▇▇▇▇▇▇'s share thereof, on a prorata square foot basis, as additional rent
pursuant to paragraph 32.1. Lessee shall timely pay all taxes assessed against
▇▇▇▇▇▇'s furniture, equipment, fixtures, or other personal property in ▇▇▇▇▇▇'s
office space.
12.1. INSURANCE. Lessor and Lessee shall comply with the respective insurance
obligations as set forth below:
(a) Lessor. Lessor shall maintain (1) fire and extended coverage insurance,
including vandalism and malicious mischief, on the office building, and (2)
comprehensive general liability insurance. The amounts shall be as required by
▇▇▇▇▇▇'s mortgagee or as Lessor may deem reasonably appropriate, whichever is
greater. Lessor shall have no responsibility to maintain fire and extended
coverage insurance on Lessee's contents. The portion of Lessor's insurance
premiums reasonably due to Lessee's acts or omissions or ▇▇▇▇▇▇'s special use,
improvements, or tenant finish-out (over and above Lessee's normal use as
contemplated in paragraph 1.1(a)) shall be paid for by Lessee.
Page 7
Lessor DT
KALEIDO II -----------
CROSSROADS SYSTEMS, INC. Lessee BRS
-----------
10
(b) Lessee. Lessee shall provide Lessee's own public liability insurance for its
operations on the leased premises in an amount equal to the minimum "primary
coverage" amount required by Lessor's insurance carrier as a condition for
purchasing umbrella liability insurance by Lessor. In no event shall such
coverage be less than $1,000,000. Upon written notice by Lessor to Lessee, such
dollar amount of ▇▇▇▇▇▇'s liability policy shall be increased by the amount of
any increase required by ▇▇▇▇▇▇'s carrier for "primary coverage" under an
umbrella liability policy. Lessee is encouraged to maintain fire and extended
coverage insurance (including theft, vandalism and malicious mischief) on the
contents in ▇▇▇▇▇▇'s office space, including fixtures, furniture, equipment,
supplies, inventory, and other personal property. Such property is not covered
by Lessor's insurance.
(c) Insurance certificates. Lessee shall provide Lessor with a certificate of
Lessee's insurance or a copy thereof as required above within 7 days after
Lessee initially occupies Lessee's office space or any portion thereof. ▇▇▇▇▇▇
and ▇▇▇▇▇▇'s managing agent (if any) shall be named as additional insureds on
▇▇▇▇▇▇'s liability insurance policy. Upon written request by ▇▇▇▇▇▇, changes in
the name of Lessor or ▇▇▇▇▇▇'s managing agent shall be reflected on such
certificate.
(d) Notice from Lessee's Insurance Carrier. All policies of insurance to be
provided by Lessee shall contain a provision (to the extent legally permitted)
that the insurance company shall give Lessor 10 days' written notice to Lessor,
in advance of (1) any cancellation or non-renewal of the policy, (2) any
reduction in the policy amount, and (3) any deletion of additional insureds.
12.2. WAIVER OF SUBROGATION. (a) If waiver of subrogation is not contained in
the form language of the insurance policy, Lessor and Lessee may require that
the other party's fire, casualty, or liability insurance policy contain a waiver
of subrogation clause. FOR PURPOSES OF WAIVER OF SUBROGATION, ▇▇▇▇▇▇ AND LESSEE
RELEASE EACH OTHER AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND
AGENTS FROM ANY CLAIMS FOR BASED ON NEGLIGENCE OR OTHERWISE, FOR LOSS, DAMAGE,
OR INJURY WHICH OCCUR HEREAFTER AND ARE INSURED AGAINST UNDER INSURANCE POLICIES
CARRIED BY ▇▇▇▇▇▇ AND/OR LESSEE. The foregoing shall not apply to losses,
damages, or injuries that are in excess of policy limits or that are not covered
due to a deductible clause in the policy.
(b) Upon written request, Lessor and ▇▇▇▇▇▇ shall furnish to each other copies
of the policies of insurance referred to in this lease, including any waivers of
subrogation, or satisfactory evidence of same.
12.3. HOLD HARMLESS. To the extent that it is not covered by Lessor or Lessor's
insurance, Lessee shall indemnify Lessor for and shall hold Lessor harmless from
all fines, claims, liabilities, and suits (including costs and expenses of
defending against same) resulting from any breach or nonperformance of the lease
by Lessee or Lessee's agents, employees, family, licensees, or invitees. To the
extent that it is not covered by Lessor or Lessor's insurance, Lessor shall
indemnify Lessee for and shall hold Lessee harmless from all fines, claims,
liabilities, and suits (including costs and expenses of defending against same)
resulting from any breach or nonperformance of the lease by Lessor or Lessor's
agents, employees, family, licensees, or invitees. To the extent that it is not
covered by Lessor or Lessor's insurance, Lessor and Lessee shall not be liable
to the other or the other's agents, employees, or family for any damage to
personal property resulting from any act, omission, or negligence of any other
tenant, visitor, or occupant of the office building.
13.1. ALTERATIONS BY ▇▇▇▇▇▇. Lessee may not make any alterations, improvements,
doorlock changes, or other modifications of any kind to the leased premises
without ▇▇▇▇▇▇'s written consent. Consent for governmentally required changes
may not be unreasonably withheld. "Alterations" include but are not limited to
improvements glued, screwed, nailed, or otherwise permanently attached to the
building, structural changes, roof and wall penetrations, and all plumbing,
electrical, and HVAC changes. Requests for Lessor's approval shall be in writing
and shall be detailed to Lessor's reasonable satisfaction. The foregoing shall
be done only by ▇▇▇▇▇▇'s contractors or employees or by third parties approved
by ▇▇▇▇▇▇ in writing. Lessee shall pay in advance for any requested alterations,
improvements, lock changes, or other modifications which are approved and
performed by Lessor. If same are performed by Lessee with ▇▇▇▇▇▇'s permission,
Lessee shall not allow any liens to be placed against the buildings as a result
of such additions or alterations. Alterations, improvements, and modifications
done at ▇▇▇▇▇▇'s request shall comply with all applicable
Page 8
Lessor DT
KALEIDO II ---------
CROSSROADS SYSTEMS, INC. Lessee BRS
---------
11
laws. Changes in ▇▇▇▇▇▇'s alterations or improvements in Lessee's space which
may be later required by governmental action shall also be paid for by ▇▇▇▇▇▇.
13.2. AMERICANS WITH DISABILITIES ACT. Lessor shall be responsible for any
requirements under the Americans with Disabilities Act or similar state or local
laws as relate to any common area entrance and exit doorways and elevators and
any doors into Lessee's office space and to structural building items that
Lessor is required to maintain under the terms of this lease. ▇▇▇▇▇▇ agrees to
indemnify Lessee for any liability Lessee shall incur as a result of ▇▇▇▇▇▇'s
failure to comply with the provisions of this paragraph. ▇▇▇▇▇▇ agrees to
cooperate fully with Lessor to enable Lessor to timely comply with the
provisions of this paragraph and to immediately forward to Lessor any notice
Lessee receives regarding complaints, injuries, or claims by anyone claiming
that those items which are the responsibility of Lessor do not comply with the
provisions of the Americans with Disabilities Act. Lessee shall be responsible
for any requirements under such architectural barrier laws as they relate to
▇▇▇▇▇▇'s use of ▇▇▇▇▇▇'s office space, including, but not limited to, the
positioning of ▇▇▇▇▇▇'s furnishings within the office space. ▇▇▇▇▇▇ agrees to
indemnify Lessor for any liability Lessor shall incur as a result of ▇▇▇▇▇▇'s
failure to comply with the provisions of this paragraph.
14.1. REMOVAL OF PROPERTY BY ▇▇▇▇▇▇. Lessee may remove its trade fixtures,
furniture, and equipment only if (1) such removal is made prior to the end of
the lease term, (2) Lessee is not in default under this lease at time of
removal, and (3) such removal is not in anticipation of an early moveout prior
to the end of the lease term. Lessee shall pay all costs of removal. Lessee
shall have no rights to property remaining on the leased premises after moveout.
Lessee may not remove any alterations as defined in paragraph 13.1 or
improvements such as wall-to-wall carpeting, book shelves, window coverings,
drapes, cabinets, paneling, counters, kitchen or breakroom built-ins, shelving,
wall covering, and anything else attached to the floor, walls, or ceilings. If
Lessor requests in writing, Lessee shall, immediately prior to moving out,
remove any alterations, fixtures, equipment, and other property installed by
Lessee. Lessee shall pay for cleaning or repairing damage caused by ▇▇▇▇▇▇'s
removal of any property.
15.1. SUBLETTING AND ASSIGNMENT. Lessee may not sublet, assign, pledge, or
mortgage this lease and may not grant licenses, commissions, or other rights of
occupancy to all or any part of the leased premises without Lessor's prior
written approval which shall not be unreasonably withheld. Sublessee's financial
strength, reputation, personnel and length of sublease or assignment shall be
important factors in Lessor's approval. Sale, transfer, or merger of majority of
the voting shares or voting partnership interests in Lessee (if a corporation or
partnership) shall be considered an assignment. Lessor shall not be obligated to
approve any sublease or assignment. However, if Lessor gives such approval,
Lessor shall be entitled to (1) 50% of any excess between Lessee's rental per
square foot under the lease and the rental per square foot under the sublease or
assignment, and (2) 50% of any other consideration flowing directly or
indirectly from the sublessee or assignee to Lessee or Lessee's agents. The
foregoing is in consideration of additional management performed or to be
performed by Lessor under such sublease or assignment. In addition to the
foregoing, Lessor may charge Lessee a one-time fee equal to one month's lease
rental for such additional administrative, investigative, and management
services. Violation of this lease by sublessees or assignees shall be deemed a
violation by ▇▇▇▇▇▇. Approval by Lessor of any sublease or assignment shall not
release Lessee from any obligation under this lease and shall not constitute
approval for subsequent subletting or assignment. Sublessees or assignees shall
be liable for all of Lessee's obligations under this lease unless otherwise
specified in writing. Upon default by ▇▇▇▇▇▇, any Sublessee shall pay all
sublease rentals and other sums due Lessor, direct to Lessor, to be credited
against sums owed to Lessor by Lessee under this lease. Unless otherwise agreed
in writing, no sublease or assignment shall be valid unless (1) a copy of this
lease is attached thereto, (2) the sublessee or assignee agrees in writing to be
liable for all of Lessee's obligations under this lease, and (3) Lessor's
written approval is attached to the sublease or assignment. At any time, Lessor
may, at Lessor's option, release Lessee from further liability for all or any
portion of ▇▇▇▇▇▇'s office space that has been subleased or assigned to a third
party; and Lessor may terminate the lease to the extent that it applies to such
space.
16.1. DESTRUCTION BY FIRE OR OTHER CASUALTY. (a) Total destruction, rent
abatement, and restoration. If ▇▇▇▇▇▇'s office space is totally damaged by fire
or other casualty so that it cannot reasonably be used by ▇▇▇▇▇▇ and
Page 9
Lessor DT
KALEIDO II ---------
CROSSROADS SYSTEMS, INC. Lessee BRS
---------
12
if this lease is not terminated as provided in subparagraph (d) below, there
shall be a total abatement of ▇▇▇▇▇▇'s rent and ▇▇▇▇▇▇'s obligation to pay
office building operating expenses until ▇▇▇▇▇▇'s office space is restored by
▇▇▇▇▇▇ and ▇▇▇▇▇▇.
(b) Partial destruction, rent abatement, and restoration. If ▇▇▇▇▇▇'s office
space is partially destroyed or damaged by fire or other hazard so that it can
be only partially used by Lessee for the purposes allowed in this lease and if
this lease is not terminated as provided in subparagraph (d) below, there shall
be a partial abatement of Lessee's rent and ▇▇▇▇▇▇'s obligation to pay office
building operating expenses which fairly and reasonably corresponds to the time
and extent to which ▇▇▇▇▇▇'s office space cannot reasonably be used by Lessee.
(c) Restoration. Lessor's obligation to restore shall be limited to the
condition of the leased premises existing prior to the casualty. Lessor shall
proceed with diligence to restore. During restoration, ▇▇▇▇▇▇ shall continue
business to the extent practical in Lessee's reasonable judgment.
(d) Lease termination. If ▇▇▇▇▇▇'s office space or the office center is so badly
damaged that restoration and repairs cannot be completed within 6 months after
the fire or casualty, then this lease may be terminated as of the date of the
destruction by either Lessor or Lessee by serving written notice upon the other.
Termination notice must be delivered within 30 days after the casualty.
17.1. CONDEMNATION. If the leased premises or any material portion thereof,
including any portion of the parking lot is taken by condemnation and if the
leased premises is thereby reasonably rendered unusable for Lessee's business
use and activities, this lease shall automatically terminate as of the date
title vests in the condemning authority pursuant to such taking or acquisition;
and Lessor and Lessee shall be relieved of all further obligations under this
lease. Lessor shall be entitled to recover from the condemning authority the
full amount of Lessor's interest in this lease and in the property which is
taken in condemnation; provided, however, if ▇▇▇▇▇▇ is not in default hereunder
on the day of taking or acquisition by the condemning authority, Lessee shall be
allowed to recover from the condemning authority, at ▇▇▇▇▇▇'s own expense, the
value of ▇▇▇▇▇▇'s remaining leasehold interest and ▇▇▇▇▇▇'s trade fixtures, if
any, which are taken in condemnation; but not otherwise. Lessee shall be
responsible for ▇▇▇▇▇▇'s own attorney's fees and for proving its own damages.
18.1. DEFAULT BY ▇▇▇▇▇▇. Lessee shall be entitled to recover actual damages and
terminate this lease if (1) Lessor fails to pay any sum due and owing to Lessee
within 7 days after written demand from Lessee, or (2) Lessor remains in default
on any other obligation for 7 days after ▇▇▇▇▇▇'s written demand for
performance. However, Lessor shall not be in default if Lessor promptly
commences to cure such noncompliance and diligently proceeds in good faith to
cure same after receiving written notice of such default. If taxes and utilities
are not timely paid, Lessee may pay same to the extent that it is necessary to
avert foreclosure or cutoff. If Lessor fails to perform any covenant, term or
condition of this lease that Lessor is obligated to perform and, as a
consequence of such nonperformance, ▇▇▇▇▇▇ shall recover a money judgment
against Lessor, such judgment shall be satisfied only out of Lessor's equity in
the property. Lessor shall have no liability whatsoever for any deficiency, and
no other property or assets of Lessor shall be subject to levy, execution or
other enforcement procedures as a result of such judgment.
19.1. DEFAULT BY ▇▇▇▇▇▇. If Lessee defaults, Lessor shall have any or all
remedies set forth below.
(a) Definition of default. The occurrence of any of the following shall
constitute a default by Lessee: (1) failure to pay rent or any other sum due by
Lessee under this lease within 7 days after written demand therefor by Lessor;
(2) failure to vacate on or before the last day of the lease term, renewal term,
or extension period; (3) failure to pay rent in advance on a daily basis in the
event of unlawful holdover by Lessee; (4) unauthorized early move-out or notice
of same as set forth below; (5) acquisition of ▇▇▇▇▇▇'s interest in the lease by
a third party by judicial or non-judicial process; or (6) failure to comply with
any other provision of the lease (including rules) if such failure to comply is
not cured as soon as possible after delivery of written notice by Lessor to
Lessee. However, Lessee shall not be in default under subclause (6) above if
Lessee promptly commences to cure such noncompliance and diligently proceeds in
good faith to cure same after receiving written notice of such default.
Page 10
Lessor DT
KALEIDO II -----------
CROSSROADS SYSTEMS, INC. Lessee BRS
-----------
13
(b) Utilities and services. If Lessee is in default for nonpayment of rent or
other sums due and if Lessee fails to pay same in full within 3 days after
Lessor hand delivers to Lessee or to Lessee's representative written notice of
▇▇▇▇▇▇'s intent to terminate utilities or services which are furnished by
Lessor, then Lessor may terminate such utilities or services after such 3-day
notice period, without further notice. Lessor's right to terminate such
utilities or services shall occur automatically and without notice if ▇▇▇▇▇▇'s
rent is accelerated under subparagraph (d) below, relating to unlawful early
move-out.
(c) Acceleration after notice of rental delinquency. If Lessee is in default for
nonpayment of rent or other sums due and if ▇▇▇▇▇▇ fails to pay same in full
within 7 days after ▇▇▇▇▇▇ delivers to Lessee or to ▇▇▇▇▇▇'s office space a
written notice of ▇▇▇▇▇▇'s intent to accelerate, then all rent for the remainder
of the lease term shall be accelerated due, and delinquent at the end of such 7
day notice period without further demand or notice. Such acceleration rights are
in consideration of the rentals for the entire term being payable in monthly
installments rather than in one lump sum at the beginning of the lease
term. If ▇▇▇▇▇▇ has already vacated the leased premises, notice of acceleration
may be delivered to Lessee pursuant to paragraph 29.1. Liability for additional
rents accruing in the future (over and above any base rents) shall not be waived
by such acceleration.
(d) Acceleration upon early move-out. If Lessee is lawfully evicted, or if
▇▇▇▇▇▇ moves out or gives verbal or written notice (in person or by an
authorized employee or agent) of intent to move-out prior to the end of the
lease term without the rent being paid in full for the entire remainder of the
lease term or renewal or extension period or without prior written consent of
Lessor, all remaining rents for the remainder of the lease term shall be
accelerated immediately and automatically, without demand or notice. Such
accelerated rents shall be due and delinquent without notice before or after
such acceleration. Such acceleration shall occur even if the rent for the
current month has been paid in full.
(e) Termination of possession. If Lessee is in default as defined in
subparagraph (a) above and if Lessee remains in default for 3 days after Lessor
gives notice of such default to Lessee, or if Lessee abandons the leased
premises, Lessor may (with or without demand for performance) terminate Lessee's
right of possession by giving one day's written notice to vacate; and Lessor
shall be entitled to immediate possession without termination of Lessee's
obligations under the lease. Lessor's repossession shall not be considered an
election to terminate this lease unless written notice of such intention to
terminate is given to Lessee by Lessor. Repossession may be by voluntary
agreement or by eviction lawsuit. Commencement of an eviction lawsuit shall not
preclude other Lessor remedies under this lease or other laws.
(f) Reletting costs. If Lessee is in default under this lease and if Lessor
terminates Lessee's right of possession without terminating this lease and
Lessee's space is released, Lessee shall pay upon Lessor's demand the following:
(1) all costs of reletting (which in no event shall be less than one month's
rent), including leasing commissions, rent concessions (whether in the form of
assuming or buying out lease remainders elsewhere, free rent for a period of
time, or reduced rental rates), utilities during the vacancy, advertising costs,
administrative overhead, and all costs of repair, remodeling, or redecorating
for replacement tenants in Lessee's office space, (2) all rent and other
indebtedness due from Lessee to Lessor through the date of termination of
Lessee's right of possession, and (3) all rent and other sums required to be
paid by Lessee during the remainder of the entire lease term, subject to the
acceleration paragraphs above.
(g) Mitigation by ▇▇▇▇▇▇. Upon eviction or voluntary vacation of the leased
premises by ▇▇▇▇▇▇ without the lease being terminated by Lessor, Lessor shall
make reasonable efforts to relet the leased premises. After deduction of
reasonable expenses incurred by Lessor, Lessee shall receive credit for any
rentals received by Lessor through reletting the leased premises during the
remainder of the lease term or renewal or extension period. Such deductible
expenses may include real estate commissions, attorney's fees, and all other
expenses in connection with reletting. Lawsuit to collect amounts due by Lessee
under this lease may be brought from time to time on one or more occasions
without the necessity of Lessor's waiting until the expiration of the lease
term. If judgment for accelerated rents is recovered, Lessor shall give credit
against such judgment for subsequent payments made by ▇▇▇▇▇▇ and subsequent
rentals received by Lessor from other tenants of ▇▇▇▇▇▇'s office space, less
lawful deductions and expenses of reletting.
Page 11
Lessor DT
KALEIDO II ---------
CROSSROADS SYSTEMS, INC. Lessee BRS
---------
14
(h) Termination of lease. Lessor may terminate this lease (as contrasted to
termination of possession rights only) upon default by Lessee or at any time
after ▇▇▇▇▇▇'s lawful re-entry or repossession following default by Lessee.
Lessor's agents have authority to terminate the lease only by written notice
given pursuant to paragraph 29.1.
(i) Damages. In addition to other remedies, Lessor may recover actual damages
incurred.
20.1. LIEN FOR RENT. (a) Notwithstanding anything to the contrary in this lease,
▇▇▇▇▇▇'s landlord lien shall be subordinate to any existing security interest
and any future purchase money security interests on ▇▇▇▇▇▇'s personal property
if such security interest is properly perfected and timely recorded as required
by the Texas Business Code. Lessor shall cooperate in signing lien
subordinations in accordance with the foregoing. Any lien subordination shall be
on forms reasonably acceptable to Lessor.
(b) Subject to the limitations of subparagraph (a) above, ▇▇▇▇▇▇ gives to Lessor
a contractual lien on all of Lessee's property which may be found on the leased
premises to secure payment of all monies and damages owed by ▇▇▇▇▇▇ under the
lease. Such lien also covers all insurance proceeds on such property. Lessee
shall not remove such property while rent or other sums remain due and unpaid to
Lessor and such property shall not be removed until all Lessee's obligations
under the lease have been complied with. This lien is in addition to Lessor's
statutory lien under Section 54.021 of the Texas Property Code. If Lessee is in
default for nonpayment of rent or any other sums due by ▇▇▇▇▇▇, ▇▇▇▇▇▇'s
representatives may peacefully enter the leased premises and remove and store
all property. If Lessor removes any property under this lien, Lessor shall leave
the following information in a conspicuous place inside ▇▇▇▇▇▇'s office space:
(1) written notice of exercise of lien, (2) a list of items removed, (3) the
name of ▇▇▇▇▇▇'s representative who removed such items, and (4) the date of such
removal. Lessor shall be entitled to reasonable charges for packing, removing,
or storing abandoned or seized property, and may sell same at public or private
sale (subject to any properly recorded chattel mortgage or recorded financing
statement) after 30 days' written notice of time and place of sale is given to
Lessee by certified mail, return receipt requested. Upon request by ▇▇▇▇▇▇,
▇▇▇▇▇▇ shall acknowledge the above lien rights by executing a UCC-1 form or
similar form reflecting same.
21.1. ATTORNEY'S FEES, INTEREST, AND OTHER EXPENSES. If Lessee or Lessor is in
default and if the nondefaulting party places the lease in the hands of an
attorney in order to enforce lease rights or remedies, the nondefaulting party
may recover reasonable attorney's fees from the defaulting party even if suit
has not been filed. In any lawsuit enforcing lease rights, the prevailing party
shall be entitled to recover reasonable attorney's fees from the nonprevailing
party, plus all out-of-pocket expenses. Trial shall be to court only; and all
parties waive jury trial. All delinquent sums due by Lessor or Lessee shall bear
interest at the maximum lawful rate of interest, compounded annually, from date
of default until paid, plus any late payment fees. Late payment fees as set
forth in paragraph 3.2 shall be considered reasonable liquidated damages for the
time, trouble, inconvenience, and administrative overhead expense incurred by
Lessor in collecting late rentals, such elements of damages being uncertain and
difficult to ascertain. Late payment fees shall not be liquidated damages for
attorney's fees or for ▇▇▇▇▇▇'s loss of use of such funds during the time of
delinquency.
22.1. NONWAIVER. The acceptance of monies past due or the failure to complain of
any action, nonaction, delayed payment, or default, whether singular or
repetitive, shall not constitute a waiver of rights or obligations under the
lease. Lessor's or Lessee's waiver of any right or any default shall not
constitute waiver of other rights, violations, defaults, or subsequent rights,
violations, or defaults under this lease. No act or omission by Lessor or
▇▇▇▇▇▇'s agents shall be deemed an acceptance or surrender of the leased
premises, and no agreement by ▇▇▇▇▇▇ to accept a surrender of the leased
premises shall be valid unless it is in writing and signed by a duly authorized
agent of ▇▇▇▇▇▇.
23.1. BUILDING RULES. Lessor's rules for the office building are attached as
Exhibit F-2 and are subject to reasonable change if the changes are applicable
to all tenants of the office building. Separate parking rules are contained in
paragraph F-1. ▇▇▇▇▇▇ agrees to provide a copy of the Office Building Rules
(Exhibit F-2) to each of Lessee's employees.
Page 12
Lessor DT
KALEIDO II ---------
CROSSROADS SYSTEMS, INC. Lessee BRS
---------
15
24.1. TRANSFER OF OWNERSHIP BY ▇▇▇▇▇▇. If Lessor transfers ownership of the
office building (other than as security for a mortgage) and if ▇▇▇▇▇▇ has
delivered to the transferee all of Lessee's security deposits and any prepaid
rents, Lessor shall be released from all liability under the lease; and such
transferee shall become liable as Lessor. Such right to be released of liability
shall accrue to subsequent owners only if such transfer is in good faith and for
consideration.
25.1. MORTGAGES. Unless otherwise provided in this lease, ▇▇▇▇▇▇ shall
subordinate and attorn to mortgage liens now or hereafter on the office
building. ▇▇▇▇▇▇ agrees to execute, from time to time, documentation therefor
which is necessary in the reasonable judgment of ▇▇▇▇▇▇. Other than the
provisions already set forth in this lease, there are no special lease
provisions which are required by lienholders of the office building. This lease
shall be subordinate to all existing and future mortgages. However, such
mortgagees may at any time subordinate their lien to this lease by filing a
subordination notice in the county real property records without necessity of
notice to ▇▇▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ and holds any mortgagee or holder of a security
interest harmless from all claims of ▇▇▇▇▇▇ against Lessor arising prior to such
mortgagee succeeding to the Lessor's ownership interest in the property. Since a
Mortgagee Nondisturbance Agreement is contemplated, any foreclosure of such
mortgagee's lien shall not terminate this lease even if such lien is superior to
the lease.
26.1. SURRENDER OF PREMISES. When ▇▇▇▇▇▇ moves out, ▇▇▇▇▇▇ shall surrender
▇▇▇▇▇▇'s office space in the same condition as on the date of lease commencement
by ▇▇▇▇▇▇ (as changed or improved from time to time in accordance with this
lease), less ordinary wear. Removal of property from the leased premises is
subject to paragraph 14.1. Upon surrender, Lessee shall provide Lessor with all
of ▇▇▇▇▇▇'s keys, access codes and cards to the Leased Premises and the
combination to all safes and vaults, if any in the Leased Premises.
27.1. HOLDING OVER. If Lessee remains in possession of the leased premises
after the expiration or mutually-agreed termination date of the lease, without
the execution by Lessor and Lessee of a new lease or a renewal or extension of
the lease, then (1) Lessee shall be deemed to be occupying the leased premises
as a tenant-at-sufferance on a daily basis, subject to all obligations of the
lease, (2) Lessee shall pay rent for the entire holdover period at the rate of
125% of the then-current rental rate, (3) Lessee shall be subject to all other
remedies of Lessor as provided in paragraph 19.1, (4) Lessee shall indemnify
Lessor and/or prospective tenants for damages, including lost rentals, storage
expenses, and attorney's fees, and (5) at Lessor's sole option, Lessee may
extend the lease term for a period of one month at the then current rental rates
for the office building, as reasonably determined by Lessor, by hand delivering
written notice to Lessee or to ▇▇▇▇▇▇'s office space while Lessee is holding
over. Holdover rents shall be immediately due on a daily basis and delinquent
without notice or demand; and the prior written notice and waiting period
requirements of this lease shall not be necessary in order for Lessor to
exercise remedies thereunder.
28.1. SIGNS AND BUILDING NAME. Except for standard suite signage and building
directory listings, there shall be no signs, symbols, or identifying marks on or
in the building, halls, elevators, staircases, entrances, parking areas,
landscape areas, doors, walls, or windows without prior written approval of
Lessor. If the lease term is less than twelve (12) months, the cost of initial
suite signage for ▇▇▇▇▇▇'s space and initial directory strips shall be at
Lessee's expense. All signs or lettering shall conform to the sign and lettering
criteria established by Lessor. Unless otherwise stated in the rules, suite
signage and building directory changes shall be done exclusively by Lessor and
at Lessee's expense. Lessor may remove all unapproved signs without prior notice
to Lessee and at ▇▇▇▇▇▇'s expense. Lessor may change the name of the building
upon six months' written notice to ▇▇▇▇▇▇.
28.2. RELOCATION OF LESSEE. Upon at least 60 days' notice to Lessee, Lessor
shall have the right to relocate Lessee within the building in lease space which
is the same size or larger and usable for ▇▇▇▇▇▇'s intended use. Such relocation
shall be made at ▇▇▇▇▇▇'s sole expense, including necessary reprinting of
▇▇▇▇▇▇'s stationary, envelopes, business cards, door signs, etc. Rent shall not
be increased if the relocation office space is larger or better quality.
Relocation date shall be contained in the relocation notice referred to above.
Lessor shall not be liable to Lessee in
Page 13
Lessor DT
KALEIDO II ---------
CROSSROADS SYSTEMS, INC. Lessee BRS
---------
16
connection with such relocation except for undue delay or property damages
caused by Lessor or Lessor's employees, agents, or contractors.
29.1. NOTICES. Whenever written notice is required or permitted under this
lease, such notice shall be in writing and shall be either (a) hand delivered
personally to the party being notified, (b) hand delivered to or inside such
party's mailing address, or (c) delivered at such party's mailing address by
certified mail, return receipt requested, postage prepaid. The mailing address
of Lessor shall be the address to which Lessee normally mails or delivers the
monthly rent unless Lessor notifies Lessee of a different address in writing.
The mailing address of Lessee shall be ▇▇▇▇▇▇'s office space under this lease.
However, if ▇▇▇▇▇▇ moves out, it shall be ▇▇▇▇▇▇'s last address known by ▇▇▇▇▇▇.
Hand delivered notice is required only when expressly required in the lease.
Notice by noncertified mail is sufficient if actually received by the addressee
or an employee or agent of addressee. The term "notice" shall be inclusive of
notices, ▇▇▇▇▇▇▇▇, requests, and demands.
30.1. ESTOPPEL CERTIFICATES. From time to time, upon 7 days' prior written
request from Lessor, Lessee shall execute and deliver to Lessor the estoppel
certificate attached as Exhibit G. The form in Exhibit G may be changed as
reasonably required by a prospective purchaser or lender. If any statement in
the estoppel certificate form is contrary to the facts existing at the time of
execution of such form, Lessee may correct same before signing. Reasonable
modifications in the form may be made as requested by a prospective lienholder
or purchaser. The estoppel certificate may be conclusively relied upon by Lessor
and by any prospective lienholder or purchaser of the leased premises. If Lessee
fails to comply with the foregoing by the end of such 7-day period, it shall be
conclusively presumed that (1) this lease is in full force and effect without
any subleases or assignments and is unamended or modified except for amendments
verified by affidavit of Lessor to the prospective lienholder or purchaser, (2)
no rents, security deposits, or other charges have been prepaid, (3) the
statements contained in the estoppel certificate form (Exhibit G) are correct,
(4) there are no uncured defaults by Lessor, (5) Lessee has no right of offset
or rescission, and (6) any prospective purchaser or lienholder may conclusively
rely on such silence or noncompliance by Lessee and may conclusively assume no
Lessor defaults within the 120 days following Lessee's receipt of Lessor's
request for an estoppel certificate.
31.1. SUCCESSORS. This lease shall bind and inure to the benefit of the parties,
any guarantors of this lease, and their respective successors and assigns.
31.2. LEASING AGENT COMMISSIONS. No leasing commission shall be due by Lessor to
any leasing agent unless in writing. Commission agreements executed by Lessor
shall be binding on subsequent building owners if the tenant of the lease in
question is in possession at the time of transfer of building ownership.
32.1. BUILDING OPERATING EXPENSE. In addition to the monthly base rent in
paragraph 2.1, Lessee shall pay additional rent on a monthly basis, equivalent
to ▇▇▇▇▇▇'s prorata share of actual building operating expenses as per Exhibit
C. Lessee's responsibility for payment of building operating costs shall be
subject to the expense stop referred to in Basic Lease Information #8.
33.1. REPRESENTATIONS AND WARRANTIES BY ▇▇▇▇▇▇. Lessor warrants that Lessor is
the sole owner of the land and improvements comprising the office building and
that Lessor has full right to enter into this lease. Lessor's duties and
warranties are limited to those expressly stated in this lease and shall not
include any implied duties or implied warranties, now or in the future. No
representations or warranties have been made by Lessor other than those
expressly contained in this lease.
34.1. REPRESENTATIONS AND WARRANTIES BY ▇▇▇▇▇▇. Lessee warrants to Lessor that
(1) the financial statements of Lessee heretofore furnished to Lessor are true
and correct to the best of ▇▇▇▇▇▇'s knowledge, (2) there has been no significant
adverse change in Lessee's financial condition since the date of the financial
statements, (3) the
Page 14
Lessor DT
KALEIDO II ---------
CROSSROADS SYSTEMS, INC. Lessee BRS
---------
17
financial statements fairly represent the financial condition of Lessee upon
those dates and at the time of execution hereof, (4) there are no delinquent
taxes due and unpaid by ▇▇▇▇▇▇, and (5) Lessee and none of the officers or
partners of Lessee (if Lessee is a corporation or partnership) have ever
declared bankruptcy. Lessee warrants that ▇▇▇▇▇▇ has disclosed in writing to
Lessor all lawsuits pending or threatened against Lessee, and ▇▇▇▇▇▇ has made no
material misrepresentation or material omission of facts regarding ▇▇▇▇▇▇'s
financial condition or business operations. All financial statements must be
dated and signed by ▇▇▇▇▇▇. ▇▇▇▇▇▇ acknowledges that Lessor has relied on the
above information furnished by Lessee to Lessor and that Lessor would not have
entered into this lease otherwise.
35.1. PLACE OF PERFORMANCE. Unless otherwise expressly stated in this lease,
all obligations under this lease, including payment of rent and other sums due,
shall be performed in the county where the office building is located, at the
address designated from time to time by Lessor.
36.1. MISCELLANEOUS. This lease contains the entire agreement of the parties. NO
OTHER WRITTEN OR ORAL PROMISES OR REPRESENTATIONS HAVE BEEN MADE, AND NONE
SHALL BE BINDING. This lease supersedes and replaces any previous lease between
the parties on ▇▇▇▇▇▇'s office space, including any renewals or extensions
thereunder. Except for reasonable changes in written rules, this lease shall not
be amended or changed except by written instrument, signed by both ▇▇▇▇▇▇ and
▇▇▇▇▇▇. ▇▇▇▇▇▇'S AGENTS DO NOT AND WILL NOT HAVE AUTHORITY TO (1) MAKE
EXCEPTIONS, CHANGES OR AMENDMENTS TO THIS LEASE, OR FACTUAL REPRESENTATIONS NOT
EXPRESSLY CONTAINED IN THIS LEASE, (2) WAIVE ANY RIGHT, REQUIREMENT, OR
PROVISION OF THIS LEASE, OR (3) RELEASE LESSEE FROM ALL OR PART OF THIS LEASE,
UNLESS SUCH ACTION IS IN WRITING AND SIGNED BY BOTH PARTIES TO THIS LEASE.
Multiple lessees shall be jointly and severally liable under this lease.
Notices, requests, or agreements to, from, or with one of multiple lessees shall
be deemed to be to, from, or with all such Lessees. Under no circumstances shall
Lessor or Lessee be considered an agent of the other. Nonsubstantial errors in
space footage calculations shall entitle the parties to correct the rental
figures in the lease and adjust rentals previously paid to present Owner
accordingly, but not to terminate the lease. The lease shall not be construed
against either party more or less favorably by reason of who drafted the lease
or changes in the lease. Texas law applies. If any date of performance or
exercise of a right ends on a Saturday, Sunday, or state holiday, such date
shall be automatically extended through the next business day. Time is of the
essence; and all performance dates, time schedules, and conditions precedent to
exercising a right shall be strictly adhered to without delay except where
otherwise expressly provided. If any provision of this lease is invalid under
present or future laws, the remainder of this lease shall not be affected.
37.1. SPECIAL CONDITIONS. Additional provisions of this lease are set forth in
Exhibit J.
38.1. EXHIBIT LIST. The exhibits attached to this lease are listed below. All
exhibits are a part of this lease except for those which have been lined out or
which have been shown below as omitted.
Exhibit A Floor Plan of Lessee's Office Space (paragraph 1.1)
Exhibit B Legal Description of Office Building (paragraph 1.1)
Exhibit C Building Operating Expense Passthrough Calculations (paragraphs 2.1 and 32.1)
Exhibit D Acknowledgment of Lease (paragraph 4.2)
Exhibit E Construction by Lessor (paragraph 5.1)
Exhibit F-1 Parking Rules (paragraphs 9.2 and 23.1)
Exhibit F-2 Building Rules (paragraph 23.1)
Exhibit G Estoppel Certificate (paragraph 30.1)
Exhibit H Lease Guaranty (paragraph 37.1)
Exhibit I Corporate Resolution Authorizing Lease or Guaranty (paragraphs 37.1 and 39.1)
Exhibit J Special Conditions (paragraph 37.2)
Exhibit K Hazardous Materials Statement
Exhibit L Acknowledgment of Receipt of Agency Disclosure
Exhibit M Option for Additional Space
Page 15
Lessor DT
KALEIDO II ---------
CROSSROADS SYSTEMS, INC. Lessee BRS
---------
18
39.1. LEASE DATES AND AUTHORITY TO SIGN. The "identification" date of this lease
is the 28th day of FEBRUARY 1997 (the same date as at the top of Basic Lease
Information). The "effective date" on which this lease becomes binding is the
date on which the lease has been signed by ▇▇▇▇▇▇, Lessee, and any guarantors.
The names and signatures of all parties are shown below; and all persons signing
have been duly authorized to sign. IF LESSEE IS A CORPORATION, A CORPORATE
RESOLUTION AUTHORIZING LESSEE TO EXECUTE THIS LEASE IS ATTACHED AS EXHIBIT I.
Corporate seals are unnecessary under Texas law.
LESSOR LESSEE
EURUS ESTATES II, LTD. CROSSROADS SYSTEMS, INC.
------------------------------------------------ -------------------------------------------------
Printed name of company or firm (if applicable) Printed name of company or firm (if applicable)
▇▇▇ ▇▇▇▇, CPM ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------ -------------------------------------------------
Printed name of person signing Printed name of person signing
/s/ ▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------ -------------------------------------------------
Signature Signature
VICE PRESIDENT, ▇▇▇▇▇▇ MANAGEMENT, INC.,
AUTHORIZED MANAGING AGENT FOR
EURUS ESTATES II, LTD. PRESIDENT
------------------------------------------------ -------------------------------------------------
Title of person signing (if applicable) Title of person signing (if applicable)
3/31/97 March 3, 1997
------------------------------------------------ -------------------------------------------------
Date signed (Please initial all pages and exhibits) Date signed (Please initial all pages and exhibits
Page 16
Lessor DT
KALEIDO II ---------
CROSSROADS SYSTEMS, INC. Lessee BRS
---------
19
LEASING AGENT
THE ▇▇▇▇▇▇ COMPANY
---------------------------------------------------
Printed name of company or firm (if applicable)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------------
Printed name of person signing
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------------
Signature
SENIOR VICE PRESIDENT
---------------------------------------------------
Title of person signing (if applicable)
3/19/97
---------------------------------------------------
Date signed
Page 17
Lessor DT
KALEIDO II ---------
CROSSROADS SYSTEMS, INC. Lessee BRS
---------
20
EXHIBIT A
FLOOR PLAN OF LESSEE'S OFFICE SPACE
(see paragraph 1.1 of lease)
The parties agree that the floor plan below is a true and correct diagram of
▇▇▇▇▇▇'s office space referred to in paragraph 1.1.
KALEIDO II, Suite II-300
7,121 USF / 8,739 RSF
[FLOOR PLAN OF THIRD FLOOR]
Page 18
Lessor DT
KALEIDO II ---------
CROSSROADS SYSTEMS, INC. Lessee BRS
---------
21
EXHIBIT B
LEGAL DESCRIPTION OF OFFICE BUILDING
by lot, block, subdivision, and county or
by metes and bounds description
(see paragraph 1.1 of lease)
KALEIDO I & II
4.32 acres of land, more or less, out of and a part of Tract Number Three (3) of
the partition of the ▇.▇. ▇▇▇▇▇▇▇▇ Estate, a subdivision of a portion of the
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ League in ▇▇▇▇▇▇ County, Texas, according to the map or plat of
said partition of the ▇.▇. ▇▇▇▇▇▇▇▇ Estate of record in Book 4, Page 14 of the
Plat Records of ▇▇▇▇▇▇ County, Texas; SAVE AND EXCEPT the approximately 1.1242
acre portion thereof conveyed to the public for highway right-of-way purposes.
Page 19
Lessor DT
KALEIDO II ---------
CROSSROADS SYSTEMS, INC. Lessee BRS
---------
22
EXHIBIT C
Page One of Two
BUILDING OPERATING EXPENSE PASSTHROUGH CALCULATIONS
(see paragraphs 2.1 and 32.1 of lease)
(a) "ESTIMATED" PRORATA BUILDING OPERATING EXPENSES. On or before the beginning
of each calendar year, Lessor shall calculate the estimated building operating
expenses for that calendar year, according to the criteria in subparagraph (c)
below. One-twelfth of Lessee's prorata share of estimated building operating
expenses which are in excess of any expense stop shall be due on the first of
each month as additional rent.
(b) YEAR-END ADJUSTMENT FOR OVERPAYMENT OR UNDERPAYMENT BY ▇▇▇▇▇▇ BECAUSE OF
DIFFERENCES BETWEEN "ESTIMATED" AND "ACTUAL" BUILDING OPERATING EXPENSES. After
each calendar year of the lease term and renewal or extension periods, Lessor
shall determine the actual building operating expenses for that calendar year.
If it is then determined that actual building operating expenses were less than
estimated expenses and that ▇▇▇▇▇▇'s monthly payments of estimated expenses over
▇▇▇▇▇▇'s expense stop figure were too much, Lessor shall promptly credit to
Lessee the excess amount paid by ▇▇▇▇▇▇. If it is determined that actual
building operating expenses were more than estimated expenses and that ▇▇▇▇▇▇'s
monthly payments of estimated expenses over ▇▇▇▇▇▇'s expense stop figure were
insufficient, Lessor shall invoice Lessee for the amount of Lessee's
underpayment. Payment thereof shall be due upon delivery of invoice to Lessee.
Payment may be made prior to or with the next scheduled rental payment, but not
later. The foregoing calculations and adjustments may also be made one or more
times during the calendar year, at Lessor's option.
(c) DEFINITION OF BUILDING OPERATING EXPENSES. Building operating expenses for
each calendar year shall include: all ad valorem taxes, assessments and related
government charges becoming due on the building and on-site personal property
used in operation of the building in such period; utilities; insurance premiums
for fire, extended coverage, vandalism, and liability on the building and
personal property used in building management; landscape expenses; janitorial
expenses; window cleaning; supplies; painting, roof repairs, window replacement,
and other maintenance expenses; licenses; permits; advertising; maintenance
salaries and bonuses; payroll taxes; management office overhead and management
fees; and all other managerial, administrative and operating expenses which are
reasonably related to the operation of the building and utilities serving same.
No such category shall include more than 12 months' worth of expenses. Building
operating expenses shall also include the following improvements if amortized
over the useful life of such improvements for IRS purposes together with
interest at 12% per annum on the unamortized cost: (i) improvements to reduce
operating expenses, (ii) improvements required by governmental agencies
following completion of the building, and (iii) carpeting, floor covering,
draperies, and wall coverings for the common areas of the building. Building
operating expenses shall be calculated on an accrual basis in accordance with
generally accepted accounting principles, consistently applied. The word
"building" as referred to above shall include the building, parking areas,
parking garage (if any), and common areas.
Building operating expenses shall not include: principal and interest payments
on mortgages; depreciation or improvements which IRS requires to be depreciated
(except as provided above); expenses of repairing damage of the type normally
covered by fire, vandalism, flood, and EC insurance; any expense paid or
reimbursed from insurance proceeds; costs of repairing damage for which Lessor
is entitled to reimbursement from others; remodeling costs for new or existing
tenants; common area improvements or personal property required by other tenants
to be made, purchased, or furnished to such tenants; utility and air
conditioning or heating costs or other expenses which are separately billed to
specific tenants; franchise and income taxes of Lessor; leasing commissions;
expenses of marketing vacant space in the building; legal fees; structural
repairs to roof, foundation, and walls; asbestos removal; and installation of
sprinklers, fire alarms, and smoke detector systems.
If utilities and taxes included in "Building Operating Expense" are not payable,
billed or otherwise due so as to allow an accurate calculation of said factors
annually, then Lessor, in its reasonable discretion, may estimate and prorate
said expenses on an annual basis, and said factors shall be properly adjusted by
Lessor when they actually become due and payable. Otherwise, expenses must be
supported by invoices and actually paid.
(d) DEFINITION OF PRORATA SHARE. ▇▇▇▇▇▇'s prorata share of estimated and actual
building operating expenses is the percentage result of dividing "Lessee's
rentable area" (which is set forth in Basic Lease Information #4) by the total
rentable area in the entire building.
Page 20
KALEIDO II Lessor DT
CROSSROADS SYSTEMS, INC. -------------
Lessee BRS
-------------
23
EXHIBIT C (cont'd)
Page Two of Two
(e) DELAY IN IMPLEMENTATION. At Lessor's option, adjustments may be delayed.
Lessor's delay in implementing such adjustments shall not waive Lessor's right
thereto, and the most recent monthly rental figures shall continue to be paid
during such delay. If Lessor delays in timely calculating adjustments, such
adjustments shall be retroactive to the respective date on which Lessor had a
right to make such adjustment; and such delayed rent adjustments shall become
due upon written notice to Lessee.
(f) EXAMINATION OF RECORDS. Upon reasonable notice to Lessor in writing, Lessee
may examine or audit ▇▇▇▇▇▇'s accounting records for building operating expenses
for the year immediately preceding and other data used in calculating additional
rents or rent adjustments. Examination or audit of building operating expenses
for a particular year may be conducted no later than 120 days after ▇▇▇▇▇▇'s
receipt of a reconciliation notice or statement of building operating expenses
for that year. If not examined or audited within the 120 day period, such
reconciliation shall be deemed as accepted and agreed to by all parties.
Page 21
KALEIDO II Lessor DT
CROSSROADS SYSTEMS, INC. -------------
Lessee BRS
-------------
24
EXHIBIT D
Page One of Two
ACKNOWLEDGMENT OF LEASE
(TO BE SIGNED AT MOVE-IN)
The undersigned parties acknowledge that the lease described below is in full
force and effect and that ▇▇▇▇▇▇ has taken possession of the space.
Date of lease: February 28, 1997
--------------------------------------------------------------
Lessor: Eurus Estates II, Ltd.
---------------------------------------------------------------------
Lessee: Crossroads Systems, Inc.
---------------------------------------------------------------------
Guarantor, if any (not Lessee's name): N/A
--------------------------------------
Building name: Kaleido II
--------------------------------------------------------------
Suite No.: II-300
------------------------------------------------------------------
Building address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------------------
City/County/State/Zip: Austin/▇▇▇▇▇▇/Texas/78759
------------------------------------------------------
Legal description of property: See Exhibit B of Lease
----------------------------------------------
The commencement date, annual anniversary date, and ending date of the initial
lease term as defined in paragraph 4.1 of above lease are as follows:
Commencement date (month, day, year): May 1, 1997
---------------------------------------
Annual Anniversary date (month, day): May 1
---------------------------------------
Ending date (month, day, year): April 30, 2002
---------------------------------------------
The parties acknowledge that the lease has not been amended or modified and that
this acknowledgment may be filed of record with the Texas Secretary of State or
the county where the building is located in order to record (1) ▇▇▇▇▇▇'s
possession rights to the leased premises, and (2) Lessor's contractual landlord
lien rights over all personal property therein and any security deposit posted
by ▇▇▇▇▇▇. The entire lease is hereby affirmed and incorporated herein. The
lease will cease to be an encumbrance to ▇▇▇▇▇▇'s title if Lessor files an
affidavit of record, stating that ▇▇▇▇▇▇ no longer occupies the premises and
that ▇▇▇▇▇▇'s right of possession has been lawfully terminated.
▇▇▇▇▇▇ ▇▇▇▇▇▇
(To be signed at move-in) (To be signed at move-in)
EURUS ESTATES II, LTD. CROSSROADS SYSTEMS, INC.
------------------------------------------------- -------------------------------------------------
Printed name of company or firm (if applicable) Printed name of company or firm (if applicable)
▇▇▇ ▇▇▇▇, CPM ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------------- -------------------------------------------------
Printed name of person signing Printed name of person signing
/s/ ▇▇▇ ▇▇▇▇
------------------------------------------------- -------------------------------------------------
Signature Signature
VICE PRESIDENT, ▇▇▇▇▇▇ MANAGEMENT, INC.
AUTHORIZED MANAGING AGENT FOR
EURUS ESTATES II, LTD. PRESIDENT
------------------------------------------------- -------------------------------------------------
Title of person signing (if applicable) Title of person signing (if applicable)
------------------------------------------------- -------------------------------------------------
Date signed Date signed
Page 22
KALEIDO II Lessor DT
CROSSROADS SYSTEMS, INC. -------------
Lessee BRS
-------------
25
EXHIBIT D (cont'd)
Page Two of Two
STATE OF TEXAS
COUNTY OF ______________
This instrument was acknowledged before me on _______________________________ by
__________________________________________________ on behalf of the above stated
LESSOR and in the above stated capacity.
____________________________________
Notary Public for the State of Texas
Printed name of notary _____________
My commission expires ______________
STATE OF TEXAS
COUNTY OF ______________
This instrument was acknowledged before me on _______________________________ by
__________________________________________________ on behalf of the above stated
LESSEE and in the above stated capacity.
____________________________________
Notary Public for the State of Texas
Printed name of notary _____________
My commission expires ______________
Page 23
KALEIDO II Lessor DT
CROSSROADS SYSTEMS, INC. -------------
Lessee BRS
-------------
26
EXHIBIT E
CONSTRUCTION BY ▇▇▇▇▇▇
(see paragraph 5.1 of lease)
Lessor Eurus Estates II, Ltd.
--------------------------------------------------------------------------
Lessee Crossroads Systems, Inc.
--------------------------------------------------------------------------
Date of lease February 28, 1997
-------------------------------------------------------------------
Office space Suite II-300
-------------------------------------------------------------------
Building name/address Kaleido ▇▇/▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------
Lessee agrees to lease Suite II-300 with the following improvements listed
(below) or (on the attached floor plan). The cost for said improvements,
including space planning fees, and construction management fees, shall not
exceed $35,605.00 ($5.00/usf).
Any modification to the existing improvements shall be applied against the
dollar allowance and improvement costs that exceed the above-referenced
allowance SHALL BE PAYABLE BY LESSEE one-half (1/2) upon commencement of the
work and one-half (1/2) upon completion or occupancy by Lessee, whichever is the
earlier.
If actual costs for capital improvements based on signed construction documents
by Lessee are less than the above-referenced allowance, including space
planning, and construction management fees, the Lessee will not receive a credit
for the unspent portion of the allowance.
Improvements: LESSOR SHALL REMODEL THE LEASED PREMISES AS PER A MUTUALLY
ACCEPTABLE SPACE PLAN.
Page 24
KALEIDO II Lessor DT
CROSSROADS SYSTEMS, INC. -------------
Lessee BRS
-------------
27
EXHIBIT F-1
OFFICE BUILDING
PARKING RULES
(see paragraph 9.2 of lease)
It is the desire of Lessor to maintain and operate the parking garage and
parking areas in an orderly manner. The following rules and regulations apply to
all tenants in the building and their agents, employees, family, licensees,
invitees, visitors, and contractors unless otherwise stated. Lessor reserves the
right to rescind these rules, make reasonable changes, or make other reasonable
rules and regulations for the safety, care, and cleanliness of the parking
garage, if applicable, and parking areas and for the preservation of good order.
1. TRAFFIC SIGNS. All persons parking in the parking areas and parking garage
shall observe posted signs and markings regarding speed, stop signs, traffic
lanes, reserved parking, no parking, parking stripes, etc.
2. LESSEE EMPLOYEE AND CUSTOMER PARKING. Lessees and their employees and
customers [X] may _____ OR may not park without charge. Lessor reserves the
right to utilize any reasonable system by which building tenants may pay for
parking of their guests or customers.
3. TRASH. All persons parking in the parking garage or parking areas shall
refrain from throwing trash, ashtray contents, or other debris on the garage
floor or parking areas.
4. FLAT TIRES. All vehicle owners and all persons parking in the parking garage
or parking areas shall be responsible for promptly repairing flat tires or other
conditions of the vehicle which cause unsightliness in the reasonable judgment
of Lessor.
5. REMOVAL OF UNAUTHORIZED VEHICLES. If vehicles are blocking driveways or
passageways or parked in violation of these rules and regulations or state
statutes, Lessor may exercise vehicle removal remedies under Article 6701g-1 and
6701g-2 upon compliance with statutory notice.
6. SECURITY. Lessor shall use reasonable diligence in the maintenance of
existing lighting in the parking garage or parking areas. Lessor shall have no
duty for additional lighting or any security measures in the parking areas,
including the parking garage.
7. PARKING OF EMPLOYEE VEHICLES. Lessor may from time to time designate specific
areas in which vehicles owned by Lessee and Lessee's employees, sublessees,
assignees, licensees, and concessionaires shall be parked. Lessee shall use best
efforts to see that such vehicles are parked in such areas. Upon request by
Lessor, Lessee shall furnish Lessor a complete list of license numbers of all
vehicles operated by Lessee and the above listed persons. Lessor may charge
reasonable parking fees for such vehicles not parked in the designated areas.
8. PARKING OF TRUCKS AND DELIVERY VEHICLES. Without Lessor's prior written
approval, no trailers or large trucks may be parked in the parking areas except
for temporary loading or unloading. Service and delivery vehicles may be parked
in loading zones only when necessary.
9. TIMELY PAYMENT OF PARKING RENT. If applicable, Lessee shall be entitled to
monthly parking rights in the parking garage only upon timely payment of the
then current monthly parking rent, in advance. Lessee may rent less than the
allowed number of spaces. Lessee may rent more than the allowed number of spaces
if available in the reasonable judgment of ▇▇▇▇▇▇.
10. CONTROL DEVICES. Lessor reserves the right to install or utilize any
reasonable system of entry and exit control devices in marked loading areas.
Page 25
KALEIDO II Lessor DT
CROSSROADS SYSTEMS, INC. -------------
Lessee BRS
-------------
28
EXHIBIT F-2
Page One of Three
OFFICE BUILDING RULES
(see paragraphs 9.2 and 23.1 of lease)
▇▇▇▇▇▇ AGREES TO PROVIDE A COPY OF THESE RULES TO EVERY EMPLOYEE
It is the desire of Lessor to maintain in the building the highest standard of
dignity and good taste consistent with comfort and convenience for all tenants.
Any action or condition not meeting this high standard should be reported
directly to the building manager. Cooperation by all tenants will be sincerely
appreciated. The following rules and regulations apply to all tenants in the
building and their agents, employees, family, licensees, invitees, visitors, and
contractors unless otherwise stated. Pursuant to paragraph 23.1 of the lease,
Lessor reserves the right to rescind these rules, make reasonable modification
thereto, and make other reasonable rules and regulations for the safety, care,
and cleanliness of the building and for the preservation of good order.
1. DELIVERIES AND MOVEMENT OF FURNITURE. Movement into or out of the building of
furniture, equipment shall be restricted to hours, stairways, and elevators
designated by Lessor. Unless Lessor notifies Lessee otherwise, only the freight
elevator may be used for such purposes, and such elevator may be used only
during regular business hours without prior approval of Lessor. All such
movement and delivery shall be under the supervision of the building manager and
carried out in a manner agreed between ▇▇▇▇▇▇ and the building manager, by
prearrangement. Prearrangement shall include time, method, routing, and any
limitations imposed for reasons of safety or nondisturbance of others. The hold
harmless and indemnification provisions of paragraph 12.2 shall apply to the
foregoing. Lessor may require that movement of furniture or equipment which
interferes with normal building traffic shall be made at hours other than normal
business hours.
2. OBSTRUCTION OF PASSAGEWAYS. None of the passageways, outside entries,
exterior doors, elevators, hallways, or stairways shall be locked or obstructed.
No rubbish, trash, litter, or materials of any nature may be emptied or thrown
into these areas. These areas may be used only for ingress and egress.
3. DOORS AND DOORLOCKS. When ▇▇▇▇▇▇'s corridor doors are not in use, Lessee
shall use its best efforts to keep them closed on all floors where Lessee is a
partial tenant on the floor. No additional locks shall be placed on any doors in
▇▇▇▇▇▇'s office space without written consent of ▇▇▇▇▇▇. Lessee shall not
change, alter, or replace locks provided by Lessor on doors in the building,
except with written permission of the building manager. All necessary keys shall
be furnished by ▇▇▇▇▇▇, and Lessor shall be entitled to have a key for every
door in ▇▇▇▇▇▇'s office space. Lessee shall surrender all keys upon termination
of ▇▇▇▇▇▇'s right of occupancy; and at such time, Lessee shall give Lessor the
combination to all vaults or combination locks remaining in ▇▇▇▇▇▇'s office
space after surrender by ▇▇▇▇▇▇.
4. SAFES. Safes and other heavy articles shall be carried onto the leased
premises only at such times and in such manner as prescribed by ▇▇▇▇▇▇. Lessor
shall have the right to specify weight limitations and positioning of safes or
other heavy articles. Any damage done to the building by installation, presence,
or removal of a safe or other article owned or controlled by ▇▇▇▇▇▇ on the
leased premises, shall be paid for by Lessee.
5. REMOVAL OF FURNITURE. Removal of furniture or equipment from ▇▇▇▇▇▇'s office
space shall require presentation of written authorization by an authorized
representative of Lessor. Security guards, watchmen, janitors, and other
building employees will have the right to challenge all persons leaving the
building with such items.
6. INSTALLATION AND REPAIR WORK. Lessee shall refer all contractors,
contractors' representatives, and installation technicians who render any
service on or to ▇▇▇▇▇▇'s office space, to the building manager for approval and
supervision before performance of any service. This provision shall apply to
all work performed in the building, including installation of telephones,
electrical lines, and other electrical devices where such installation affects
the floors, walls, woodwork, trim, windows, ceilings, mechanical equipment, or
any other part of the building. If Lessee desires telephone or other electronic
connections, Lessee shall notify Lessor; and Lessor shall then direct
installation servicemen as to where and how wires may be introduced. Without
such directions, no such installations shall be permitted.
7. HAZARDOUS MATERIALS. Lessee shall not place or install, on the leased
premises or any part of the building, any explosive, gasoline, kerosene, oil,
acids, caustics, or any other inflammable, explosive, or hazardous materials
without written consent of the building manager. Lessee shall not operate
electric space heaters, stoves, engines, or other equipment not typical of an
office building without written consent of the building manager.
Page 26
KALEIDO II Lessor DT
CROSSROADS SYSTEMS, INC. -------------
Lessee BRS
-------------
29
EXHIBIT F-2 (cont'd)
Page Two of Three
8. ENTRY BY ▇▇▇▇▇▇. Lessor shall have the right to enter for the purposes set
forth in paragraph 9.1 of the lease at all times.
9. PLUMBING. Plumbing fixtures and appliances shall be used only for the
purposes for which they were constructed. No sweeping, rubbish, rags, or other
unsuitable materials may be thrown or placed in plumbing fixtures or appliances.
The cost of any stoppage or damage resulting from negligence or improper use of
these fixtures and appliances by Lessee or ▇▇▇▇▇▇'s agents, employees, family,
invitees, licensees, or visitors shall be paid for by the Lessee.
10. WINDOWS. Lessee shall not allow windows within Lessee's office space to be
opened at any time, except in emergencies. Nothing shall be thrown out of the
windows of the building or down the stairwells or other passages. Lessor
reserves the right to cause any or all windows of the building to be locked,
sealed, closed, or otherwise made inoperable, or to install permanent or
temporary screens thereon, and to include the cost thereof with the operating
expenses of the building.
11. THEFT AND DAMAGES. Lessor shall not be responsible for lost or stolen
personal property, equipment, money, or jewelry from ▇▇▇▇▇▇'s office space or
from the public areas of the building, regardless of whether such loss occurs
when the area is locked against entry. Lessor will not be liable to Lessee, or
Lessee's employees, customers, or invitees for any damages or losses to persons
or property caused by other Lessees in the building or for damages or losses
caused by theft, burglary, assault, vandalism, or other crimes. Owner shall not
be liable for personal injury or loss of ▇▇▇▇▇▇'s property from fire, flood,
water leaks, rain, hail, ice, snow, smoke, lightning, wind, explosions, or
interruption of utilities unless such injury or damage is caused by negligence
of Lessor. ▇▇▇▇▇▇ STRONGLY RECOMMENDS THAT LESSEE SECURE ▇▇▇▇▇▇'S OWN INSURANCE
TO PROTECT AGAINST THE ABOVE OCCURRENCES.
12. ANIMALS. No birds, fowl, or animals (except guide dogs for handicapped
persons) shall be brought into or kept in or about the building or common
areas.
13. BICYCLES AND OTHER VEHICLES. No bicycles, motorcycles, or similar vehicles
shall be allowed in the building. No trailers or large trucks may be parked in
the building parking areas except for temporary loading or unloading.
14. RESIDENTIAL USE. No sleeping, cooking, clothes cleaning, or laundering is
permitted on the leased premises without written consent of ▇▇▇▇▇▇.
15. INTOXICATION. Lessor reserves the right to exclude or expel from the
building any person who in the reasonable judgment of ▇▇▇▇▇▇, is intoxicated or
under the influence of liquor or drugs, or who shall in any manner do any act in
violation of any rules of the building.
16. DISTURBANCES. Lessee shall not obstruct, disturb, or interfere with the
rights of other Lessees or occupants or in any way injure or annoy them. Lessee
shall not make any noises by any means which, in the reasonable judgment of
▇▇▇▇▇▇, are likely to disturb other Lessees or occupants of the building.
17. COMPLIANCE WITH SAFETY AND SANITATION LAWS. Lessee shall comply with all
laws relating to fire, safety, and sanitation, and shall comply with any
requirements of Lessor's insurance company with respect to fire prevention,
safety standards, and sanitation.
18. CLEANING. Lessee shall not employ any person or persons without written
consent of Lessor, for the purpose of cleaning or maintaining of the leased
premises. Lessee shall cooperate with Lessor's employees, agents, and cleaning
personnel in keeping ▇▇▇▇▇▇'s premises neat and clean. Any special cleaning
requested by ▇▇▇▇▇▇ and performed by Lessor or Lessor's employees, agents, or
contractors shall be paid for by ▇▇▇▇▇▇.
19. SOLICITING. Canvassing, soliciting, or peddling in the building is
prohibited without written permission of Lessor, and Lessee shall cooperate to
prevent same.
20. SIGNS. No signs, fixtures, or notices of any kind may be displayed except by
written consent of ▇▇▇▇▇▇. All signs shall conform to the requirements of
paragraph 28.1 of the lease.
Page 27
KALEIDO II Lessor DT
CROSSROADS SYSTEMS, INC. ------------
Lessee BRS
------------
30
EXHIBIT F-2 (cont'd)
Page Three of Three
21. NOTICE OF PERSONAL INJURIES OR UTILITY OR MECHANICAL PROBLEMS. Lessee shall
give prompt notice to the building manager, to the best of ▇▇▇▇▇▇'s knowledge,
of any significant accidents involving injury to persons or property, including
plumbing, electrical, heating, air conditioning, stairwell, corridor, and
elevator problems and/or personal injury and property damage caused thereby.
22. REQUESTS BY ▇▇▇▇▇▇. Except in emergencies, requests by ▇▇▇▇▇▇ shall be
attended to only after written request by ▇▇▇▇▇▇ to the building management.
Lessor's employees are not allowed to perform or do anything outside their
regular duties unless pursuant to special orders from ▇▇▇▇▇▇. Lessee may not
contract with Lessor's employees for the performance of paid or free services to
Lessee. If, at the request of Lessee, Lessor or Lessor's agents furnish
services, goods, labor, or material to Lessee which are not required to be
furnished by Lessor under this lease, Lessee shall pay for same upon delivery of
a written statement therefor to Lessee.
23. BUILDING ACCESS. Anyone who does not reasonably satisfy a building security
guard (if any) that he has a right to enter the building may be excluded by the
guard. Lessor shall not be liable for damages for any good faith error with
regard to admission or exclusion from the building of any person. In case of
fire, destruction, invasion, mob, riot, or other commotion, Lessor reserves the
right to prevent access to the building by closing the doors or otherwise.
24. REQUEST FOR EXTRA AIR CONDITIONING. Requests for heating or air conditioning
before or after the hours of operation stated in paragraph 7.1 of the lease must
be received at the management office at least 24 hours in advance.
25. LEASE PROVISIONS REGARDING ▇▇▇▇▇▇'S CONDUCT. Lessee shall comply with all
the provisions of paragraph 9.2 regarding parking and paragraph 10.1 regarding
occupancy, nuisance, and hazards.
26. ELEVATORS. Lessor shall not be liable for damages from stoppage of elevators
for repair, service, or improvements. Nor shall Lessor be liable for delays of
any duration in connection with elevator repair, service, or improvements.
27. SMOKING. This is a non-smoking building; smoking is not permitted anywhere
inside the building.
28. ICE, SLEET, SNOW, OR WATER. Lessor shall have no duty to remove, in whole or
in part, ice, sleet, snow, or water from parking lots, walkways, sidewalks, or
stairs, regardless whether they are covered, uncovered, inside, or outside of
buildings. At Lessor's option, Lessor may remove such ice, sleet, snow, or water
at any time, in whole or in part, with or without notice to anyone.
Page 28
KALEIDO II Lessor DT
CROSSROADS SYSTEMS, INC. -------------
Lessee BRS
-------------
31
EXHIBIT G
Page One of Two
THIS FORM IS NOT TO BE EXECUTED AT TIME OF LEASE EXECUTION.
ESTOPPEL CERTIFICATE
(see paragraph 30.1 of lease)
The purpose of this certificate is to confirm the current status of matters
relating to the lease described below. It is for the benefit of the owner or
prospective purchaser or mortgagee of the building in which the leased premises
are located.
1. The undersigned is the Lessee under a lease between ________________________,
as Lessor, and ___________________________________, as Lessee, dated _________
___________ on leased premises locally known as the ____________________________
building and located at ______________________________, in ____________________,
Texas. A copy of the fully executed lease and any amendments or modifications
thereto are attached. There are no other modifications or amendments to the
above described lease. The dates of any amendments or modifications are: (put
"none" if inapplicable) _______________________________________________________.
2. There are no unfulfilled written or verbal promises, representations, or
warranties by ▇▇▇▇▇▇.
3. There are no subleases of the leased premises or any portions thereof.
4. The lease (together with any amendments or modifications referred to above)
is in good standing and in full force and effect. Lessor is not in default.
▇▇▇▇▇▇ agrees to give notice of any Lessor default to any purchaser or lender
making written requests to Lessee for same.
5. Except for rents (if any) which may be due under the lease for the current
month, there are no rents or other charges which have been prepaid by the
undersigned Lessee to Lessor under the lease other than the following:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
6. The amount of security deposit currently posted by Lessee with Lessor is
$ __________ in the form of ( ) cash or ( ) an irrevocable, unconditional letter
of credit issued by _____________________________ in favor of Lessor which is
still valid.
7. Lessee acknowledges that the space being leased consists of ______________
rentable square feet according to the lease, that the improvements to be
constructed by Lessor have been satisfactorily completed, that the lease space
has been accepted by Lessee, that Lessee now occupies the lease space, and that
the commencement date for the lease term was __________________________________.
8. There are no rentals which are due and unpaid. Rentals are fully paid (if
required by the lease) through the last day of the month in which this estoppel
certificate has been executed.
9. There are no known offsets or credits against rentals except as expressly
provided by the terms of the lease. There is no known right of rescission and no
known defense to ▇▇▇▇▇▇'s future obligations to pay the specified rentals at the
times and in accordance with the lease terms. Lessee has not received any
concession (rental or otherwise) or similar compensation not expressed in the
lease which is presently in effect.
10. Lessee has no options or rights of refusal regarding the leased premises or
additional rental space other than as set out in the lease.
11. Lessee has not: (a) made a general assignment for the benefit of creditors;
and (b) commenced any case, proceeding or other action seeking reorganization,
arrangement, adjustment, liquidation, dissolution, or composition of it or its
debts under any law relating to bankruptcy, insolvency, reorganization, or
relief of debtors; or (c) had any involuntary case, proceeding, or other action
commenced against it which seeks to have an order for relief entered against it,
as debtor, or seeks reorganization, arrangement, adjustment, liquidation,
dissolution, or composition of it or its debts under any law relating to
Page 29
KALEIDO II Lessor DT
CROSSROADS SYSTEMS, INC. -------------
Lessee BRS
-------------
32
EXHIBIT G (cont'd)
Page Two of Two
bankruptcy, insolvency, reorganization, or relief of debtors; or (d) concealed,
removed, or permitted to be concealed or removed, any part of its property, with
intent to hinder, delay, or defraud its creditors or any of them, or made or
suffered a transfer of any of its property which may be fraudulent under any
bankruptcy, fraudulent conveyance, or similar law; or made any transfer of its
property to or for the benefit of a creditor at a time when other creditors
similarly situated have not been paid; or (e) had a trustee, receiver, custodian
or other similar official appointed for or take possession of all or any part of
its property or had any court take jurisdiction of any other of its property.
12. ▇▇▇▇▇▇ agrees to furnish Lessor with estoppel letters on this form within 10
days (stating the then-current facts) after written request by Lessor or
subsequent owners of the building.
13. Lessee acknowledges that, upon 10 days' prior written request of ▇▇▇▇▇▇'s
mortgagee at any time after foreclosure proceedings or a deed in lieu of
foreclosure, Lessee shall attorn to the mortgage or foreclosure purchaser by
recognizing such new owner as Lessor under the lease provided that such
purchaser shall recognize the rights of tenant under the lease as long as tenant
is not in default. The agreement of Lessee to attorn shall survive any
foreclosure sale or deed in lieu of foreclosure. Lessee shall, upon 10 days'
written notice from ▇▇▇▇▇▇'s mortgagee anytime before or after foreclosure sale,
execute, acknowledge, and deliver to ▇▇▇▇▇▇'s mortgagee all instruments and
certificates that in the reasonable judgment of ▇▇▇▇▇▇'s mortgagee may be
necessary or proper to confirm such attornment.
14. ▇▇▇▇▇▇ acknowledges that this estoppel certificate and the statements
therein may be conclusively relied upon by ▇▇▇▇▇▇ and by any prospective
purchaser or lien holder of the leased premises.
15. The form of this estoppel certificate may vary, depending on lender or
purchaser requirements. It is agreed that this certificate may be modified to
conform to reasonable requests by lenders or purchasers.
16. This agreement shall be binding upon and shall inure to the benefit of the
Lessor, any present or future mortgagee, any prospective buyer or master ▇▇▇▇▇▇
of the property, and their successors and assigns.
Dated this ______________ day of __________, 19___.
LESSEE
----------------------------------------------
By
--------------------------------------------------
Printed name of signatory
---------------------------
Title
-----------------------------------------------
Page 30
KALEIDO II Lessor DT
CROSSROADS SYSTEMS, INC. -------------
Lessee BRS
-------------
33
EXHIBIT H
Page One of Two
OFFICE LEASE GUARANTY
(see paragraph 37.1 of lease)
[TEXT OMITTED]
Page 31
KALEIDO II Lessor DT
CROSSROADS SYSTEMS, INC. -----------
Lessee BRS
-----------
34
EXHIBIT H (cont'd)
Page Two of Two
[TEXT OMITTED]
Page 32
KALEIDO II Lessor DT
CROSSROADS SYSTEMS, INC. -----------
Lessee BRS
-----------
35
EXHIBIT I
CERTIFICATE OF CORPORATE RESOLUTION
AUTHORIZING LEASE OR GUARANTY
(see paragraphs 37.1 and 39.1 of lease)
The undersigned, as secretary of the corporation named below, certifies that at
a special meeting of the board of directors of the corporation, duly called and
held on the ___ day of_____________, 19__, at which a quorum of the directors
were present and acting throughout, the following resolutions were unanimously
adopted and are still in force and effect:
RESOLVED that the president or the vice president of the corporation shall be
authorized to execute a lease for office space on behalf of the corporation
and/or to guarantee performance of a lease for office space, described below:
Date of lease: February 28, 1997
--------------------------------------------------------
Lessor: Eurus Estates II, Ltd.
--------------------------------------------------------------
Lessee: Crossroads Systems, Inc.
--------------------------------------------------------------
Guarantor, if any (not Lessee's name): N/A
--------------------------------
Building name: ▇▇▇▇▇▇▇ ▇▇
--------------------------------------------------------
Suite No.: II-300
--------------------------------------------------------
Building address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------------
City/County/State/Zip: Austin / ▇▇▇▇▇▇ / Texas / 78759
------------------------------------------------
RESOLVED FURTHER, that the president or vice president is authorized on behalf
of the Corporation to execute and deliver to the Lessor all instruments
reasonably necessary for the lease. Lessor is entitled to rely upon the above
resolutions until the board of directors of the corporation revokes or alters
same in written form, certified by the secretary of the corporation, and
delivers same, certified mail, return receipt requested, to the Lessor. The
corporation is duly organized and is in good standing under the laws of the
State of Texas, and there are no proceedings pending to forfeit the
corporation's charter or right to do business in Texas. The undersigned further
certifies that on the meeting date referred to above, the names and respective
titles of the officers of the corporation were as follows:
President
-------------------------------------- ----------------------------------------
Vice President
-------------------------------------- ----------------------------------------
Secretary
-------------------------------------- ----------------------------------------
Treasurer
-------------------------------------- ----------------------------------------
WITNESS MY HAND this day of , 19
---------- ------- -------
CROSSROADS SYSTEMS, INC.
--------------------------------------
Typed name of corporation
/s/ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Signature of secretary of corporation
▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Printed name of secretary
STATE OF TEXAS
COUNTY OF ▇▇▇▇▇▇
This instrument was acknowledged before me on March 3, 1997 by
▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ on behalf of the above corporation and in the above stated
capacity.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Notary Public for the State of Texas
Printed name of notary
----------------
My commission expires
-----------------
[SEAL]
Page 33
KALEIDO II Lessor DT
-----------
CROSSROADS SYSTEMS, INC. Lessee BRS
-----------
36
EXHIBIT J
SPECIAL CONDITIONS
(see special conditions paragraph 37.2 of lease)
The following special conditions shall apply to this lease and shall prevail on
any other provisions to the contrary.
FINANCIAL STATEMENTS. Prior to execution of this lease and thereafter from time
to time, Lessee shall, upon written request, furnish to Lessor a financial
statement of ▇▇▇▇▇▇'s condition in a reasonably satisfactory form. All
financial statements shall be originally signed and dated by ▇▇▇▇▇▇ or ▇▇▇▇▇▇'s
agent and be current within 90 days.
RIGHT TO TERMINATE. LESSEE SHALL HAVE THE RIGHT TO
TERMINATE THIS LEASE AGREEMENT ANYTIME AFTER Lessor DT
THE THIRTY-SIXTH MONTH (MARCH 2000) WITH NINETY -----------
(90) DAYS WRITTEN NOTICE TO LESSOR AND A TERMINATION Lessee BRS
FEE FOR THE UNAMORTIZED PORTION OF THE ACTUAL TENANT -----------
FINISH-OUT COSTS AND LEASING COMMISSIONS.
Page 34
KALEIDO II Lessor DT
-----------
CROSSROADS SYSTEMS, INC. Lessee BRS
-----------
37
EXHIBIT K
HAZARDOUS MATERIALS STATEMENT
Various materials utilized in the construction of any improvements to the
property or in the use thereof, past or present, may contain materials that
have been or may in the future be determined to be hazardous. For example, some
electrical transformers and other electrical components can contain PCBs, and
asbestos may have been used in a wide variety of building components such as
fire-proofing, air duct insulation, acoustical tiles, spray-on acoustical
materials, linoleum, floor tiles and plaster. Such substances may be present on
or in soils, underground water, building components or other portions of the
leased premises in areas that may or may not be accessible or noticeable.
Current federal, state and local laws and regulations may require the clean-up
of such hazardous or undesirable materials.
Lessor, real estate brokers, and leasing agents in this transaction have no
expertise with respect to hazardous materials and have not made, nor will any
of their statements constitute representations, either express or implied,
regarding the existence or nonexistence of hazardous materials in or on the
leased premises.
Page 35
KALEIDO II Lessor DT
-----------
CROSSROADS SYSTEMS, INC. Lessee BRS
-----------
38
EXHIBIT L
APPROVED BY THE TEXAS REAL ESTATE COMMISSION FOR VOLUNTARY USE
Texas law requires all real estate licensees to give the
following information about brokerage services to prospective
buyers, tenants, sellers and landlords.
--------------------------------------------------------------------------------
INFORMATION ABOUT BROKERAGE SERVICES
--------------------------------------------------------------------------------
Before working with a real estate broker, you should know that the duties of a
broker depend on whom the broker represents. If you are as prospective seller or
landlord (owner) or a prospective buyer or tenant (buyer), you should know that
the broker who lists the property for sale or lease is the owner's agent. A
broker who acts as a subagent represents the owner in cooperation with the
listing broker. A broker who acts as a buyer's agent represents the buyer. A
broker may act as an intermediary between the parties if the parties consent in
writing. A broker can assist you in locating a property, preparing a contract or
lease, or obtaining financing without representing you. A broker is obligated by
law to treat you honestly.
IF THE BROKER REPRESENTS THE OWNER:
The broker becomes the owner's agent by entering into an agreement with the
owner, usually through a written listing agreement, or by agreeing to act as a
subagent by accepting an offer of subagency from the listing broker. A subagent
may work in a different real estate office. A listing broker or subagent can
assist the buyer but does not represent the buyer and must place the interests
of the owner first. The buyer should not tell the owner's agent anything the
buyer would not want the owner to know because an owner's agent must disclose to
the owner any material information known to the agent.
IF THE BROKER REPRESENTS THE BUYER:
The broker becomes the buyer's agent by entering into an agreement to represent
the buyer, usually through a written buyer representation agreement. A buyer's
agent can assist the owner but does not represent the owner and must place the
interests of the buyer first. The owner should not tell a buyer's agent anything
the owner would not want the buyer to know because a buyer's agent must disclose
to the buyer any material information known to the agent.
IF THE BROKER ACTS AS AN INTERMEDIARY:
A broker may act as an intermediary between the parties if the broker complies
with The Texas Real Estate License Act. The broker must obtain the written
consent of each party to the transaction to act as an intermediary. The written
consent must state who will pay the broker and, in conspicuous bold or
underlined print, set forth the broker's obligations as an intermediary. The
broker is required to treat each party honestly and fairly and to comply with
The Texas Real Estate License Act. A broker who acts as an intermediary in a
transaction:
(1) shall treat all parties honestly;
(2) may not disclose that the owner will accept a price less than the
asking price unless authorized in writing to or do so by the owner;
(3) may not disclose that the buyer will pay a price greater than the
price submitted in a written offer unless authorized in writing to do
so by the buyer; and
(4) may not disclose any confidential information or any information that
a party specifically instructs the broker in writing not to disclose
unless authorized in writing to disclose the information or required
to do so by The Texas Real Estate License Act or a court order or if
the information materially relates to the condition of the property.
With the parties' consent, a broker acting as an intermediary between the
parties may appoint a person who is licensed under The Texas Real Estate License
Act and associated with the broker to communicate with and carry out instruction
so one party and another person who is licensed under that Act and associated
with the broker to communicate with and carry out instruction of the other
party.
IF YOU CHOOSE TO HAVE A BROKER REPRESENT YOU,
you should enter into a written agreement with the broker that clearly
establishes the broker's obligations and your obligations. The agreement should
state how and by whom the broker will be paid. You have the right to choose the
type of representation, if any, you wish to receive. Your payment of a fee to a
broker does not necessarily establish that the broker represents you. If you
have any questions regarding the duties and responsibilities of the broker, you
should resolve those questions before proceeding.
--------------------------------------------------------------------------------
Real estate licensee asks that you acknowledge receipt
of this information about brokerage services for the
licensee's records.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ March 3, 1997
-------------------------------------------------------------------------------
Tenant Date
--------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Texas Real Estate Brokers and Salesmen are licensed and regulated by the Texas
Real Estate Commission (TREC). If you have a question or complaint regarding a
real estate licensee, you should contact TREC at P.O. Box 12188, Austin, Texas
78711-2188 or ▇▇▇-▇▇▇-▇▇▇▇.
-------------------------------------------------------------------------------
Page 36
KALEIDO II Lessor DT
-----------
CROSSROADS SYSTEMS, INC. Lessee BRS
-----------
39
EXHIBIT M
Page 1 of 2
OPTION FOR ADDITIONAL SPACE
ANYTIME AFTER THE TWELFTH (12TH) MONTH OF THIS LEASE AGREEMENT AND NO LATER THAN
THE THIRTIETH (30TH) MONTH, Lessee shall be entitled, at its option, to lease
additional space of approximately 2,879 rentable square feet (2,346 square feet)
of usable area which is outlined on page 2 of this exhibit, as follows:
1. NOTICE OF ELECTION. If Lessee elects to exercise this option, Lessee shall be
required to give Lessor written notice of intent to exercise this option, at
least one-hundred and eighty (180) days prior to Lessee's desired occupancy date
for such space. If Lessee exercises this option for additional space, such
additional space shall be subject to all of the same terms and covenants of this
lease except that the base rental rate shall be at the then current building
rental rate (established from time to time by Lessor) which is being charged by
Lessor to new tenants for space of comparable size and location within the
building at the time of the exercise of this option by Lessee, AND THE FINISH
OUT ALLOWANCE SHALL BE BASED ON $0.0833 PER USEABLE SQUARE FOOT PER MONTH TIMES
THE NUMBER OF MONTHS FROM THE COMMENCEMENT DATE OF THE EXPANSION TO THE END OF
THE LEASE TERM.
2. LEASE AMENDMENT. If this option is exercised, Lessor shall submit a lease
amendment to Lessee within five (5) days after the date on which Lessee
delivered Lessor notice of exercise of this option. Lessee shall have three (3)
days after receipt of such amendment to execute and return same to ▇▇▇▇▇▇. If
said amendment is not executed and returned to Lessor within such time period,
this option to lease additional space shall terminate automatically and without
further notice.
3.
4. TERMINATION UPON DEFAULT. The option for additional space granted herein
shall terminate automatically and without notice if Lessee is in default under
paragraph 19.1 of this lease or if Lessee vacates the office space described
in paragraph 1.1 of this lease prior to the exercise of the right of first
refusal granted herein.
Page 37
KALEIDO II Lessor DT
-----------
CROSSROADS SYSTEMS, INC. Lessee BRS
-----------
40
EXHIBIT M
Page 2 of 2
OPTION FOR ADDITIONAL SPACE
FLOOR PLAN
[MAP OF THIRD FLOOR]
Page 38
KALEIDO II Lessor DT
-----------
CROSSROADS SYSTEMS, INC. Lessee BRS
-----------