1
EXHIBIT 10.12
SUBLEASE
THIS SUBLEASE is made this 30th day of June, 1998, by and between MCI
SYSTEMHOUSE CORP., a Delaware corporation, with offices at 0000 00xx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000 (the "SUBLESSOR") and CHANNELPOINT, INC., a
corporation, with offices at 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx
Xxxxxxx, XX 00000 (the "SUBLESSEE").
WITNESSETH:
WHEREAS, by lease dated June 30, 1997 (hereinafter called the "PRIME
LEASE"), CMD Realty Investment Fund, III, L.P. successor-in-interest to North
Creek I-III L.P. (the "PRIME LESSOR"), demised unto Sublessor the entire 2nd
floor, also known as Suite 200, consisting of 36,246 rentable square feet (the
"LEASED PREMISES") in the building known as North Creek II located at 0000 Xxxx
Xxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxx, XX 00000 (the "BUILDING") for an initial
term of three (3) years; and
WHEREAS, Sublessor desires to sublet to Sublessee the entire Leased
Premises and Sublessee desires to accept such sublease; and
WHEREAS, Sublessee has in its possession and has examined a true and
correct copy of the Prime Lease a copy of which is attached hereto as EXHIBIT A
and, except as otherwise stated herein, has agreed to all the terms and
conditions therein; and
NOW, THEREFORE, Sublessor hereby subleases to Sublessee and Sublessee
hereby hires from Sublessor a portion of said Leased Premises containing
approximately 36,246 rentable square feet on the 2nd floor of the Building (the
"SUBLEASED PREMISES") as more fully described and shown on EXHIBIT B attached
hereto, together with the rights and privileges hereinafter set forth, the
Subleased Premises to be used by Sublessee for the purposes set forth in this
Sublease and for no other purpose, all in consideration of the rentals herein
set forth and on the following terms and conditions:
ARTICLE I
TERM
SECTION 1.01(a) SUBLEASE TERM. The term of this Sublease shall
commence on July 1, 1998 or upon the date which the Sublessee takes possession
of the Subleased Premises (the "COMMENCEMENT DATE") and shall continue until
midnight on the 29th day of June, 2000, or at such earlier time as may be
pursuant to this Sublease, the Prime Lease or law (the "SUBLEASE TERM"). In the
event that the Commencement Date is other the date stated herein, then Sublessor
and Sublessee agree to executed a Commencement Date Agreement following the date
that Subtenant takes possession of the Subleased Premises.
SECTION 1.02. HOLDING OVER. If Sublessee fails to surrender the
Subleased Premises at the expiration or earlier termination of the Sublease Term
and "holds over," absent any written notification from Sublessor, then Sublessee
shall pay monthly installments of Base Rent in an amount equal to one hundred
fifty percent (150%) of the monthly Base Rent installment specified in this
Sublease and any and all penalties which may be incurred by Sublessor (as
tenant) under the Prime Lease. Sublessor's acceptance of such rent shall not
prohibit or restrict Sublessor's other rights and remedies, including
Sublessor's right to evict Sublessee and to recover damages. Except as otherwise
specifically provided in this paragraph, such holdover tenancy shall be subject
to all of the terms and conditions of this Sublease.
ARTICLE II
SUBLEASED PREMISES
SECTION 2.01. CONDITION OF SUBLEASED PREMISES. Sublessee acknowledges
that it has inspected the Subleased Premises and accepts possession strictly in
"AS IS" condition. Sublessor makes no warranties, express or implied, regarding
the condition of the Subleased Premises except to the extent that such
warranties may be explicitly stated in
2
this Sublease. In making and executing this Sublease, Sublessee has neither
relied upon nor been induced by any statement or representation, if any, other
than those set forth in this Sublease. Sublessor and Prime Lessor shall not be
obligated to make, arrange, or effect any alterations, repairs or improvements
to the Subleased Premises except that Sublessor shall deliver the Subleased
Premises in broom-clean condition.
SECTION 2.02. NO ALTERATIONS WITHOUT CONSENT. Sublessee shall make no
alterations to the Subleased Premises without the prior written consent of
Sublessor and the Prime Lessor. All plans and specifications for alterations to
the Subleased Premises shall be provided to Sublessor and Prime Lessor for
approval prior to the start of work. Any alterations performed to the Subleased
Premises shall be performed lien free and shall comply with all legal
requirements and all of the provisions of the Prime Lease relating to the
performance of alterations and be performed by a contractor approved by
Sublessor at the sole cost and expense of Sublessee.
SECTION 2.03. INSTALLATION OF EQUIPMENT. Sublessee shall not install
any equipment in the Subleased Premises that: (i) could generate excessive heat
or consume excessive electricity; (ii) could interfere with Sublessor's
equipment or operations; (iii) could threaten the safety of Sublessor's
employees, agents, contractors or visitors; or (iv) could harm or impair the
structural conditions of the Building.
SECTION 2.04. SURRENDER AND RESTORATION. Upon the expiration or earlier
termination of this Sublease, Sublessee shall quietly surrender the Subleased
Premises without notice, and Sublessee shall deliver all pass keys and/or
security access cards to Sublessor. Sublessee shall return the Subleased
Premises in the same order and condition as delivered at the time of Sublessee's
occupancy, ordinary wear and tear, damage by fire excepted. Any leasehold
improvements installed in the Subleased Premises shall be removed by Sublessee
prior to the termination date of this Sublease. Sublessee shall also remove all
furniture, fixtures, signs and equipment and other property owned by Sublessee
and Sublessee shall repair any damage caused by such removal. In the event that
Sublessee vacates the Subleased Premises without repairing such damage as
described above, Sublessor shall have the right to make such repairs and charge
Sublessee for such cost which cost shall be reimbursed to Sublessor on demand.
Should any of Sublessee's property remain on the Subleased Premises upon the
expiration date of this Sublease, such property shall be deemed abandoned and
Sublessor may retain title to such property or dispose of it at Sublessee's
expense. Sublessee's obligations described in this Section 2.04 shall survive
the expiration date or earlier termination of this Sublease.
ARTICLE III
ACCESS, SERVICES, MAINTENANCE, AND REPAIRS
SECTION 3.01. SUBLESSOR'S ACCESS TO SUBLEASED PREMISES. Sublessee
agrees to permit Sublessor access to the Subleased Premises upon reasonable
advance notice during the Sublease Term for the purpose of inspecting the
Subleased Premises, marketing the Subleased Premises to potential future
Sublessees or in the case of an
SECTION 3.02. UTILITIES AND SERVICES. Sublessee recognizes that
Sublessor is not in a position to furnish the services described in the Prime
Lease or to perform certain other obligations which are not within the control
of Sublessor. Therefore, Sublessee is entitled to receive only those utilities
and services to which Sublessor is entitled to receive from Prime Lessor under
the Prime Lease. Therefore, Sublessor shall not be obligated to provide any
services to Sublessee and Sublessee's sole source of services shall be Prime
Lessor, pursuant to the Prime Lease. Sublessee shall receive all customary
building maintenance services including janitorial and customary interior and
exterior maintenance as a part of the Rent paid. Sublessee waives and release
any claims against Sublessor and Prime Lessor for damages for interruption of
utilities to the Subleased Premises.
SECTION 3.03. MAINTENANCE AND REPAIRS. Sublessee is entitled only to
those repairs which Sublessor is entitled to receive under terms of the Prime
Lease and Sublessee shall look solely to the Prime Lessor under the Prime Lease
for all such maintenance and repairs. Sublessee, at its cost and expense, shall
keep and maintain the Subleased Premises and all fixtures and equipment therein
in clean, safe and sanitary condition and in compliance with all applicable laws
and regulations.
2
3
Sublessee shall perform all repairs and maintenance to the Subleased Premises
as required by Sublessor (as tenant) under the Prime Lease. If Sublessee does
not perform such obligations within ten (10) days after receipt of Sublessor's
notice, Sublessor may, but need not, perform such obligations and Sublessee
shall reimburse Sublessor for such cost on demand. Sublessor shall have no
obligation to maintain or repair the Subleased Premises or any fixture or
furnishing therein. Sublessee shall promptly notify Sublessor of any maintenance
or repairs needed in the Subleased Premises, regardless of which party has the
obligation for such maintenance or repair.
ARTICLE IV
USE: COMPLIANCE WITH LAWS AND RULES AND REGULATIONS
SECTION 4.01. USE. Sublessee may use the Subleased Premises for general
office purposes only and in no event for any use prohibited or restricted by the
Prime Lease or by law. Sublessee shall not commit or permit to be committed on
the Subleased Premises any act or omission which shall violate any term or
condition of the Prime Lease.
SECTION 4.02. COMPLIANCE WITH LAWS, AND RULES AND REGULATIONS.
Sublessee shall, at its sole cost and expense, from and after the Commencement
Date comply with, and cause the Subleased Premises to comply with, all laws,
regulations and ordinances applicable to the Subleased Premises and to
Sublessee's use and occupancy thereof. Sublessee agrees that it shall comply
with all laws and with the rules and regulations stated in the Prime Lease
including all rules or regulations later promulgated by Prime Lessor.
ARTICLE V
RENT AND ADDITIONAL RENT
SECTION 5.01. BASE RENT. Sublessee shall pay to Sublessor, an annual
base rent at the rate of $13.90 per rentable square foot per annum in the
aggregate amount of $503,819.40 ("BASE RENT") payable in equal monthly
installments of $41,984.95 in advance on the first day of each month, commencing
on the Commencement Date, prorated for any portion of a month.
SECTION 5.02 ADDITIONAL RENT. In addition to paying the Base Rent due
hereunder, Sublessee shall pay to Sublessor, as Additional Rent, its
proportionate share of any escalations for increases in Operating Expenses (as
such term is defined in Section 2.02 of the Prime Lease), when and as such
Operating Expenses are billed to Sublessor (as tenant) from Prime Lessor under
the Prime Lease, said amount is currently $6.21 per rentable square foot. In
addition, any and all other charges imposed on Sublessor (as tenant) under the
Prime Lease shall be borne by Sublessee on the same terms and conditions as
provided for in the Prime Lease and likewise shall be paid to Sublessor when and
as such charges are billed to Sublessor (as tenant) under the Prime Lease.
Sublessee shall make any and all such payments directly to Sublessor at the
address stated in Section 5.05 hereof or such other persons as the Sublessor may
from time to time direct. For purposes hereof, Sublessee's proportionate share
of Operating Expenses shall be determined by multiplying Operating Expenses by a
fraction, the numerator of which is the number of rentable square feet of
Subleased Premises and the denominator of which is the number of rentable square
feet of the Premises as follows: Sublessee's proportionate share is
approximately 34.26% (36,246rsf/105,790rsf=34.26%). In the event that the Prime
Lessor invoices the Sublessor on a monthly basis for the estimated Operating
Expenses, Sublessor shall then invoice Sublessee on a monthly basis for the
estimated Operating Expenses, in accordance with Section 2.02 of the Prime
Lease. Sublessee shall have fifteen (15) days to pay Sublessor after receipt of
the written invoice. Within six (6) months following the close of each calendar
year and following receipt of the documentation from the Prime Lessor, Sublessor
shall provide an accounting showing in reasonable detail all computation of the
operating expenses for that year.
SECTION 5.03. COST OF ADDITIONAL SERVICES. Sublessee shall also be
responsible for paying directly to Sublessor (or to such other persons as
Sublessor shall from time to time direct) the cost of any additional services
provided to the
3
4
Subleased Premises or based on Sublessee's use and occupancy of the Subleased
Premises. Sublessee shall make payment of any and all such services within
thirty (30) days following Sublessee's receipt of Sublessor's request for
payment.
SECTION 5.04. LATE CHARGE. If any installment of Base Rent is not paid
by the tenth (10th) day of the month during which such Base Rent is due, or if
any other amount (including Additional Rent) is not paid by the tenth (10th) day
following the date such amount is due, then in addition to such sum, Sublessee
shall pay (i) a late fee equal to ten percent (10%) of such sum until paid.
SECTION 5.05. PAYMENT. Base Rent, Additional Rent, and all other sums
payable by Sublessee under this Sublease shall be paid to Sublessor without
notice or demand and without any deduction, abatement or set-off in legal United
States tender at the following address:
MCI SYSTEMHOUSE CORP.
c/o MCI Telecommunications Corporation
000 X. 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
ATTN: Real Estate Services Dept. 0950/081
or to such other party or address as Sublessor may designate by written notice
to Sublessee. Invoices for rent due shall be rendered only for the first month
of the Sublease Term and not for recurring months. Sublessor's acceptance of
late rent payments shall not excuse such delay nor any future delays in payment
nor constitute a waiver of rights, notwithstanding any endorsement or
restriction that Sublessee may include with such payment.
SECTION 5.06. TAX ON SUBLESSEE'S PERSONAL PROPERTY. Sublessee shall
also be responsible for paying any tax due on Sublessee's equipment or personal
property, if such tax is billed by the taxing authority.
ARTICLE VI
SECURITY DEPOSIT
Subtenant has deposited the sum of One Hundred Twenty Thousand and
No/l00 Dollars ($120,000.00) in a form of a Letter of Credit for the full term
of the Sublease, with Sublandlord as security for Subtenant's payment of rent
and performance of its other obligations under this Sublease. If Subtenant
defaults in its payment of rent or performance of its other obligations,
Sublandlord may draw down all or a part of the security deposit for the payment
of rent or any other sums in default, or for the payment of any other sums which
Sublandlord may spend by reason of Subtenant's default, or for the payment to
Sublandlord of any other loss or damage which Sublandlord may suffer by reason
of Subtenant's default.
If Sublandlord uses any portion of the Letter of Credit, Subtenant will
restore the Letter of Credit to its original amount within five (5) days after
written demand from Sublandlord. The Security Deposit shall not be a limitation
on Sublandlord's damages or other rights under this Sublease, or a payment of
liquidated damages, or an advance payment of the rent. If Subtenant pays the
rent and performs all of its other obligations under this Sublease, Sublandlord
shall return the Letter of Credit to Subtenant within fifteen (15) days after
the end of the Sublease Term.
ARTICLE VII
NOTICE
SECTION 7.01. DISTRIBUTION OF NOTICE RECEIVED. Sublessor shall, no
later than two (2) business days after receipt thereof, give to Sublessee a copy
of each notice and demand received from Prime Lessor concerning the
4
5
Subleased Premises or this Sublease and shall within such time give to Prime
Lessor a copy, or the substance of, each notice and demand received from
Sublessee.
SECTION 7.02. FORM OF NOTICE. Notices and other communications between
the parties shall be in writing and shall be given or made by United States
registered or certified mail, return receipt requested, or by recognized
overnight mail delivery service, pre-paid, addressed to Sublessor at:
MCI Systemhouse Corp.
c/o MCI Telecommunications Corporation
000 X. 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
ATTN: REAL ESTATE SERVICES DEPT. 0950/081
with a copy to:
MCI Telecommunications Corporation
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
ATTN: LAW AND PUBLIC POLICY
REAL ESTATE ADMINISTRATOR
DEPARTMENT 0598/003
and to Sublessee at:
ChannelPoint, Inc.
Northcreek II
0000 Xxxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
ATTN: CEO OF CHANNELPOINT
Such notices shall be deemed effective on the date of addressee's receipt or
refusal, as the case may be. Either party may change its notice address by
giving notice of such change to the other party as stated in this Article VII.
ARTICLE VIII
INCORPORATION OF PRIME LEASE
SECTION 8.01. INCORPORATION OF SUBLEASE WITH PRIME LEASE. So long as
the provisions of the Prime Lease pertaining to the Subleased Premises do not
conflict with or are applicable to the specific provisions of this Sublease (or
are not excluded below), such provisions are incorporated into and made a part
of this Sublease. Subject to the preceding sentence, Sublessee shall be bound by
all the provisions of the Prime Lease which pertain to the Subleased Premises
and shall perform all of the obligations and responsibilities that Sublessor is
obligated to perform (as tenant) pursuant to the Prime Lease related to the
Subleased Premises.
Therefore, for purposes of this Sublease: (i) references in the Prime
Lease to "Landlord" shall mean the Sublessor; (ii) references in the Prime Lease
to "Tenant" shall mean the Sublessee; (iii) references in the Prime Lease to
"Leased Premises" or similar words shall mean the Subleased Premises; (iv)
references in the Prime Lease to "Term" shall mean the Sublease Term; and (v)
references in the Prime Lease to "use and occupancy" shall refer to Sublessee's
use and occupancy of the Subleased Premises. All terms not specifically defined
herein shall have the same meanings designated in the Prime Lease provided that
such words are not in conflict with the provisions of this Sublease.
The Prime Lease contains certain provisions that are not applicable to
this Sublease. The parties agree that the following sections of the Prime Lease
are not incorporated into this Sublease: (i) any provisions that are in direct
5
6
conflict with the Sublease; (ii) any provisions relating to Prime Lessor's or
Sublessor's obligations regarding the initial construction of the Premises, the
intent of this provision being to acknowledge that construction of the Premises
covered by the Prime Lease are complete. Notwithstanding and in addition to the
preceding sentence, and not by way of limitation, the following provisions of
the Prime Lease shall not apply to Sublessee under this Sublease: Sections 15.4
and 16.14, Exhibits E and G, and Rider to Lease, Paragraphs 14, 18 and 19.
SECTION 8.02. PRIVITY. Except as specifically provided herein, nothing
contained in this Sublease shall be construed to create privity of estate or
privity of contract between Sublessee and Prime Lessor.
SECTION 8.03. BREACH OF PRIME LEASE: INDEMNIFICATION. Sublessee shall
not do or permit to be done any act or thing which will constitute a breach or
violation of any of the provisions of the Prime Lease or of any law, ordinance,
rule or regulation of any governmental body applicable to the Subleased Premises
and/or Sublessee's use and occupancy thereof. Sublessee will indemnify and hold
Sublessor harmless from and against all losses, costs, damages, expenses
(including reasonable attorneys' fees), penalties and liabilities which
Sublessor may incur or pay out by reason of any such violation or breach or any
injuries to persons or property occurring in, on or about the Subleased
Premises, or by reason of any breach, default or act of negligence hereunder by
Sublessee, its officers, employees or agents, or by reason of any work done on,
in or to the Subleased Premises by, for or on behalf of Sublessee. Likewise,
Sublessor shall not do or permit to be done any act or thing which will
constitute a breach or violation of any of the provisions of the Prime Lease.
SECTION 8.04. RIGHTS/OBLIGATIONS. Notwithstanding any provision to the
contrary in this Sublease, Sublessee shall in no case have any rights with
respect to the Subleased Premises, unless and except as specifically provided in
this Sublease, and Sublessee hereby agrees to assume all of Sublessor's
obligations under the Prime Lease, except as may be specifically provided herein
to the contrary. For example, whenever a provision of the Prime Lease which is
incorporated herein by reference requires Sublessor (as tenant) under the Prime
Lease, to perform an act or conduct a repair, such provision shall obligate
Sublessee to perform such act.
SECTION 8.05. TERMINATION OR MODIFICATION OF PRIME LEASE. If the term
of the Prime Lease is terminated prior to the expiration date of this Sublease,
this Sublease shall thereupon be terminated and Sublessor shall not be liable to
Sublessee by reason thereof unless such termination shall be due to the breach
or default of Sublessor under the terms of the Prime Lease. Sublessor hereby
agrees that it will not enter into any agreement with the Prime Lessor with
respect to the termination, surrender and acceptance of the Prime Lease, as
related to the Subleased Premises, without the prior written consent of the
Sublessee, which consent shall not be unreasonably withheld or delayed.
SECTION 8.06. SUBORDINATION OF SUBLEASE TO THE PRIME LEASE. This
Sublease is subject and subordinate to the Prime Lease and to all mortgages,
ground leases, security agreements or other encumbrances to which the Prime
Lease is subject and subordinate. Sublessee shall not by any act or failure to
act cause any default under the Prime Lease nor do anything which is prohibited
under the Prime Lease.
SECTION 8.07. DEFAULT BY PRIME LESSOR. If Prime Lessor shall default
under any of the provisions of the Prime Lease, such default shall not
constitute a default by Sublessor under this Sublease and Sublessor shall not be
obligated to cure Prime Lessor's default. Sublessor shall have no obligation to
enforce any right or remedy under the Prime Lease for Sublessee's benefit and
Sublessor shall have no liability to Sublessee for any default under the Prime
Lease by Prime Lessor.
ARTICLE IX
ASSIGNMENT AND SUBLETTING
SECTION 9.01. NO ASSIGNMENT AND SUBLETTING WITHOUT CONSENT. Sublessee
shall not assign or sublet this Sublease or any part of the Subleased Premises
or any right or privilege
6
7
appurtenant thereto, and shall not suffer or permit any other person (excepting
agents, servants or associates of Sublessee) to occupy or use the Subleased
Premises or any portion thereof, without the prior written consent of Sublessor.
Further, any assignment or subletting by Sublessee without such prior written
consent of Sublessor shall be void and shall, at the option of Sublessor,
terminate this Sublease.
ARTICLE X
INSURANCE
SECTION 10.01. SUBLESSEE'S INSURANCE. Sublessee shall maintain with
respect to the Subleased Premises comprehensive public liability and property
damage insurance in minimum limits as stated in Article 13 of the Prime Lease,
insuring Sublessor, Prime Lessor and Sublessee against bodily injury or death to
persons, and against damage to property as herein provided. Sublessee shall
deliver a certificate of such insurance to Sublessor and to Prime Lessor within
fifteen (15) days after the date hereof and Sublessor and Prime Lessor shall be
named as an additional insured on such policy. Such insurance policy shall be in
form reasonably satisfactory to Sublessor and to Prime Lessor, and shall be
placed with a company qualified to do business in the State where the Subleased
Premises are located. Such policy shall provide that it cannot be cancelled
without at least thirty (30) days prior written notice to Sublessor.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. BROKERS. Sublessor and Sublessee acknowledge that Olive
Real Estate Group, Inc. has acted as broker with regard to the Subleased
Premises and that Sublessor shall be solely responsible for, and shall pay to
said broker, a real estate commission in accordance with the terms of a separate
agreement. Sublessor agrees to indemnify, defend and hold Sublessee harmless
from any claim for such commission, and furthermore, Sublessor agrees that
should any other broker make a claim for a commission based upon the actions of
Sublessor, Sublessor shall indemnify, defend and hold Sublessee harmless from
any such claim. Sublessee represents that it has dealt with no broker other than
the aforesaid broker and agrees that, should any other broker make a claim for a
commission based upon the actions of Sublessee, Sublessee shall indemnify,
defend and hold Sublessor harmless from any such claim.
SECTION 11.02. QUIET ENJOYMENT. Sublessor covenants that upon
Sublessee's paying the rent and any other sums and observing and performing all
of the terms, covenants and conditions on Sublessee's part to be observed and
performed, Sublessee may peaceably and quietly enjoy the Subleased Premises
hereby demised, and such other rights as Sublessee is granted under this
Sublease.
SECTION 11.03. PARKING. Provided Sublessee is not in default and
subject to casualty, condemnation and applicable laws, Sublessee at all times
during the terms of the Sublease, at no additional cost to Sublessee, shall have
the right to the use up to 3 parking spaces for each 1,000 square feet of the
Subleased Premises.
SECTION 11.04. SURVIVAL. The parties agree to execute and deliver, from
time to time, as circumstances may require, any other instruments necessary to
effect the provisions of this Sublease. All of Sublessee's obligations which
accrue during the Sublease Term shall survive the expiration or earlier
termination of this Sublease.
SECTION 11.05. ENTIRE AGREEMENT. This Sublease contains the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior understandings and agreements. This Sublease cannot be
changed in any manner except by a written agreement signed by the parties
hereto.
SECTION 11.06. GOVERNING LAW. If any provision of this Sublease shall
be determined to be invalid or unenforceable, the remainder of this Sublease and
the application of all such provisions shall be valid and enforceable as
permitted by law. This Sublease shall be governed in all respects by the laws of
the state in which the Subleased Premises are located.
7
8
SECTION 11.07. EXECUTION BY COUNTERPART; FORMAT. This Sublease may be
executed in counterparts which shall be construed together as one instrument.
Each exhibit attached hereto is made a part of this Sublease. Headings are for
convenience only and shall not affect the interpretation of this Sublease.
Unless otherwise stated, all defined terms shall have the meanings used in the
Prime Lease.
SECTION 11.08. SUCCESSORS AND ASSIGNS. This Sublease shall apply to and
bind the Sublessor and Sublessee to their respective heirs, successors, and
assigns, however the agreements and obligations of Sublessor stated in this
Sublease shall be binding upon Sublessor and its successors and assigns only
concerning breaches occurring during its and their respective ownership of
Sublessor's interest hereunder. Sublessee shall attorn to each of Sublessor's
successors and assigns.
SECTION 11.09. CONSENT OF PRIME LESSOR. This Sublease is subject to the
consent of Prime Lessor in accordance with the terms of the Prime Lease and
shall have no effect until Prime Lessor shall have given its consent and this
Sublease is executed by and delivered to all parties. If Prime Lessor refuses to
consent to this Sublease for any reason whatsoever within thirty (30) days after
the date hereof, Sublessor shall not be obligated to take any action to obtain
such consent, and this Sublease shall be deemed void and of no effect, and,
except as otherwise provided in this Sublease, all rent and other charges paid
in advance, if any, shall be refunded to Sublessee.
SECTION 11.10. AUTHORITY. The parties affirm and covenant that each has
the authority to enter into this Sublease, to abide by the terms hereof, and
that the signatories hereto are authorized representatives of their respective
entities to execute and bind such entity to this Sublease.
IN WITNESS WHEREOF, this Sublease has been duly executed by the parties
hereto as of the day and year first above written.
SUBLESSOR:
ATTEST: MCI SYSTEMHOUSE CORP.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX XXXXXX
---------------------------- -----------------------------
Xxxxxx X. Xxxxx Xxxxxx Xxxxxx
Assistant Secretary Authorized Signatory
SUBLESSOR:
ATTEST: CHANNELPOINT, INC.
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXXXX X. XXXXXX
---------------------------- -----------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------
Its: President & CEO
----------------------------
8
9
LIST OF EXHIBITS
EXHIBIT A: PRIME LEASE
EXHIBIT B: PLAN OF SUBLEASED PREMISES
9
10
COMMENCEMENT DATE AGREEMENT
This agreement made this 1st day of August, 1998, MCI SYSTEMHOUSE
CORP. between (hereinafter referred to as "Sublessor") and CHANNELPOINT, INC.
(hereinafter referred to as "Sublessee").
WHEREAS, Sublessor and Sublessee entered into a Sublease dated June 30,
1998 for 36,246 rentable square feet on the second floor located in the building
known as North Creek II have an address of 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxxxx
Xxxxxxx, XX (the "Subleased Premises").
NOW, THEREFORE, pursuant to the provisions of Section 1.01(a) of the
Sublease, Sublessor and Sublessee mutually agree to as follows:
1. The Commencement Date of the Sublease Term is August 1, 1998. The
Expiration Date of the Sublease Term is June 29, 2000.
2. Tenant is in possession of, and has accepted, the Subleased Premises
in its "AS IS" condition.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this
Agreement as of the day and date first written above.
SUBLESSOR:
MCI SYSTEMHOUSE CORP.
By:
----------------------------
Xxxxxx Xxxxxx
Authorized Signatory
SUBLESSEE:
CHANNELPOINT, INC.
By: /s/ [ILLEGIBLE]
----------------------------------------
11
[SILICON VALLEY BANK LOGO]
RECEIPT FOR TERM DEPOSIT INTERNAL BANK USE
SILICON VALLEY BANK 0000 Xxxxxx Xxxxx Xxxxx Xxxxx, XX 00000-0000 408-654-7400
Class Code 754 Account Number 8800023464 Interest Rate 4.90% Annual Percentage Yield 4.90%
-------- -------------- ----- -----
Issue Date 7/24/98 Maturity Date 7/24/99 Term 365 days
------------ ---------- ------------
Amount Deposited *****$20,000.00***** Dollars
-----------------------------------------------------
IN THE NAME(S) OF
*****Channelpoint Inc*****
FJA 841367639
INTEREST PAYMENT FREQUENCY
[X] Monthly [ ] Quarterly [ ] Semi-Annually [ ] Annually [ ] At Maturity Of The Certificate
METHOD OF INTEREST DISTRIBUTION
[ ] Mail Check [ ] Credit To Certificate At Maturity Only [X] Credit To Acct. No. 3300032362
---------------
CD Held for Collateral
Trade Note
Finance Dept.
/s/ [ILLEGIBLE]
--------------------------------------
BANK AUTHORIZED SIGNATURE
This Term Deposit Is Subject To The Terms And Conditions Hereon And As Specified
On The Signature Card And Agreement On File With Silicon Valley Bank.
TERMS AND CONDITIONS
1. INTEREST RATE AND PAYMENT - The interest rate for your account will be paid
until the maturity date of your certificate. Interest begins to accrue on
the business day you deposit noncash items (for example, checks). Interest
will not be compounded. Interest will be credited according to your
instructions at the time your account is opened. The interest payment may
be credited to your certificate at maturity, credited to another account at
the Bank, or paid by cashier's check on either a monthly, quarterly,
semi-annual or annual basis or at maturity of the certificate. However, if
the certificate is less than 31 days, interest will only be credited at
maturity. We use the daily balance method to calculate the interest on your
account. This method applies a daily periodic rate to the principal rate in
the account each day.
2. ADDITIONAL DEPOSITS - After the account is opened, deposits will only be
accepted on the maturity date or any date within the grace period.
3. RENEWAL - This account will automatically renew at maturity for a like
period at Silicon Valley Bank's prevailing interest rate for that
particular term. You have a grace period after the maturity date to
withdraw the funds without being charged a penalty. You have a grace period
of two (2) business days on a maturity of a 7-31 day term account. You have
a grace period of ten (10) business days on a maturity of a 32 or more day
term account. The Bank reserves the right to terminate this term deposit
during any renewal period upon 10 days written notice to depositor. If you
withdraw your funds during the grace period, the term deposit will cease
earning interest as of the maturity date.
4. PENALTY FOR EARLY WITHDRAWAL - Partial withdrawals will not be permitted.
If we permit a withdrawal before the maturity date, a penalty as shown
below will be imposed.
a. Deposits with an original maturity of 31 days or less will forfeit all
interest earned from the date of deposit. There is a minimum penalty
of seven (7) days simple interest.
b. Deposits with an original maturity of 32 days to one year will forfeit
an amount equal to 31 days simple interest at the interest rate paid
on the time deposit at the time of withdrawal on the full amount of
the deposit.
c. Deposits with an original maturity of more than one year will forfeit
an amount equal to 90 days simple interest at the interest rate being
paid on the time deposit at the time of withdrawal on the full amount
of the deposit.
d. There is no penalty if early withdrawal is made due to the death of a
depositor or if the depositor has been declared legally incompetent.
In complying with the terms of this account, it may be necessary to deduct
a portion of the principal deposit to satisfy an early withdrawal penalty.
PRESENTATION OF THIS RECEIPT IS NOT NECESSARY FOR WITHDRAWAL OF FUNDS FROM THIS
ACCOUNT.
(Member FDIC)
NOT NEGOTIABLE * NOT TRANSFERABLE
12
[SILICON VALLEY BANK LOGO]
RECEIPT FOR TERM DEPOSIT INTERNAL BANK USE
SILICON VALLEY BANK 0000 Xxxxxx Xxxxx Xxxxx Xxxxx, XX 00000-0000 408-654-7400
Class Code 754 Account Number 8800023475 Interest Rate 4.90% Annual Percentage Yield 4.90%
-------- -------------- ----- -----
Issue Date 7/24/98 Maturity Date 7/24/99 Term 365 days
------------ ---------- ------------
Amount Deposited *****$20,000.00***** Dollars
-----------------------------------------------------
IN THE NAME(S) OF
*****Channelpoint Inc*****
FJA 841367639
INTEREST PAYMENT FREQUENCY
[x] Monthly [ ] Quarterly [ ] Semi-Annually [ ] Annually [ ] At Maturity Of The Certificate
METHOD OF INTEREST DISTRIBUTION
[ ] Mail Check [ ] Credit To Certificate At Maturity Only [x] Credit To Acct. No. 3300032362
---------------
CD Held for Collateral
Trade Note
Finance Dept.
/s/ [ILLEGIBLE]
--------------------------------------
BANK AUTHORIZED SIGNATURE
This Term Deposit Is Subject To The Terms And Conditions Hereon And As
Specified On The Signature Card And Agreement On File With Silicon Valley Bank.
TERMS AND CONDITIONS
1. INTEREST RATE AND PAYMENT - The interest rate for your account will be paid
until the maturity date of your certificate. Interest begins to accrue on
the business day you deposit noncash items (for example, checks).
Interest will not be compounded. Interest will be credited according to
your instructions at the time your account is opened. The interest payment
may be credited to your certificate at maturity, credited to another
account at the Bank, or paid by cashier's check on either a monthly,
quarterly, semi-annual or annual basis or at maturity of the certificate.
However, if the certificate is less than 31 days, interest will only be
credited at maturity. We use the daily balance method to calculate the
interest on your account. This method applies a daily periodic rate to the
principal in the account each day.
2. ADDITIONAL DEPOSITS - After the account is opened, deposits will only be
accepted on the maturity date or any date within the grace period.
3. RENEWAL - This account will automatically renew at maturity for a like
period at Silicon Valley Bank's prevailing interest rate for that
particular term. You have a grace period after the maturity date to
withdraw the funds without being charged a penalty. You have a grace
period of two (2) business days on a maturity of a 7-31 day term account.
You have a grace period of ten (10) business days on a maturity of a 32 or
more day term account. The Bank reserves the right to terminate this term
deposit during any renewal period upon 10 days written notice to depositor.
If you withdraw your funds during the grace period, the term deposit will
cease earning interest as of the maturity date.
4. PENALTY FOR EARLY WITHDRAWAL - Partial withdrawals will not be permitted.
If we permit a withdrawal before the maturity date, a penalty as shown
below will be imposed.
a. Deposits with an original maturity of 31 days or less will forfeit all
interest earned from the date of deposit. There is a minimum penalty
of seven (7) days simple interest.
b. Deposits with an original maturity of 32 days to one year will forfeit
an amount equal to 31 days simple interest at the interest rate paid
on the time deposit at the time of withdrawal on the full amount of
the deposit.
c. Deposits with an original maturity of more than one year will forfeit
an amount equal to 90 days simple interest at the interest rate being
paid on the time deposit at the time of withdrawal on the full amount
of the deposit.
d. There is no penalty if early withdrawal is made due to the death of a
depositor or if the depositor has been declared legally incompetent.
In complying with the terms of this account, it may be necessary to deduct
a portion of the principal deposit to satisfy an early withdrawal penalty.
PRESENTATION OF THIS RECEIPT IS NOT NECESSARY FOR WITHDRAWAL OF FUNDS FROM THIS
ACCOUNT.
(Member FDIC)
NOT NEGOTIABLE * NOT TRANSFERABLE
13
[SILICON VALLEY BANK LOGO]
RECEIPT FOR TERM DEPOSIT INTERNAL BANK USE
SILICON VALLEY BANK 0000 Xxxxxx Xxxxx Xxxxx Xxxxx, XX 00000-0000 408-654-7400
Class Code 754 Account Number 8800023392 Interest Rate 4.90% Annual Percentage Yield 4.90%
-------- -------------- ----- -----
Issue Date 7/24/98 Maturity Date 7/24/99 Term 365 days
------------ ---------- ------------
Amount Deposited *****$20,000.00***** Dollars
-----------------------------------------------------
IN THE NAME(S) OF
*****Channelpoint Inc*****
FJA 841367639
INTEREST PAYMENT FREQUENCY
[x] Monthly [ ] Quarterly [ ] Semi-Annually [ ] Annually [ ] At Maturity Of The Certificate
METHOD OF INTEREST DISTRIBUTION
[ ] Mail Check [ ] Credit To Certificate At Maturity Only [x] Credit To Acct. No. 3300032362
---------------
CD Held for Collateral
Trade Note
Finance Dept.
/s/ [ILLEGIBLE]
--------------------------------------
BANK AUTHORIZED SIGNATURE
This Term Deposit Is Subject To The Terms And Conditions Hereon And As
Specified On The Signature Card And Agreement On File With Silicon Valley Bank.
TERMS AND CONDITIONS
1. INTEREST RATE AND PAYMENT - The interest rate for your account will be paid
until the maturity date of your certificate. Interest begins to accrue on
the business day you deposit noncash items (for example, checks).
Interest will not be compounded. Interest will be credited according to
your instructions at the time your account is opened. The interest payment
may be credited to your certificate at maturity, credited to another
account at the Bank, or paid by cashier's check on either a monthly,
quarterly, semi-annual or annual basis or at maturity of the certificate.
However, if the certificate is less than 31 days, interest will only be
credited at maturity. We use the daily balance method to calculate the
interest on your account. This method applies a daily periodic rate to the
principal in the account each day.
2. ADDITIONAL DEPOSITS - After the account is opened, deposits will only be
accepted on the maturity date or any date within the grace period.
3. RENEWAL - This account will automatically renew at maturity for a like
period at Silicon Valley Bank's prevailing interest rate for that
particular term. You have a grace period after the maturity date to
withdraw the funds without being charged a penalty. You have a grace
period of two (2) business days on a maturity of a 7-31 day term account.
You have a grace period of ten (10) business days on a maturity of a 32 or
more day term account. The Bank reserves the right to terminate this term
deposit during any renewal period upon 10 days written notice to depositor.
If you withdraw your funds during the grace period, the term deposit will
cease earning interest as of the maturity date.
4. PENALTY FOR EARLY WITHDRAWAL - Partial withdrawals will not be permitted.
If we permit a withdrawal before the maturity date, a penalty as shown
below will be imposed.
a. Deposits with an original maturity of 31 days or less will forfeit all
interest earned from the date of deposit. There is a minimum penalty
of seven (7) days simple interest.
b. Deposits with an original maturity of 32 days to one year will forfeit
an amount equal to 31 days simple interest at the interest rate paid
on the time deposit at the time of withdrawal on the full amount of
the deposit.
c. Deposits with an original maturity of more than one year will forfeit
an amount equal to 90 days simple interest at the interest rate being
paid on the time deposit at the time of withdrawal on the full amount
of the deposit.
d. There is no penalty if early withdrawal is made due to the death of a
depositor or if the depositor has been declared legally incompetent.
In complying with the terms of this account, it may be necessary to deduct
a portion of the principal deposit to satisfy an early withdrawal penalty.
PRESENTATION OF THIS RECEIPT IS NOT NECESSARY FOR WITHDRAWAL OF FUNDS FROM THIS
ACCOUNT.
(Member FDIC)
NOT NEGOTIABLE * NOT TRANSFERABLE
14
[SILICON VALLEY BANK LOGO]
RECEIPT FOR TERM DEPOSIT INTERNAL BANK USE
SILICON VALLEY BANK 0000 Xxxxxx Xxxxx Xxxxx Xxxxx, XX 00000-0000 408-654-7400
Class Code 754 Account Number 8800023512 Interest Rate 4.90% Annual Percentage Yield 4.90%
-------- -------------- ----- -----
Issue Date 7/24/98 Maturity Date 7/24/99 Term 365 days
------------ ---------- ------------
Amount Deposited *****$20,000.00***** Dollars
-----------------------------------------------------
IN THE NAME(S) OF
*****Channelpoint Inc*****
FJA 841367639
INTEREST PAYMENT FREQUENCY
[x] Monthly [ ] Quarterly [ ] Semi-Annually [ ] Annually [ ] At Maturity Of The Certificate
METHOD OF INTEREST DISTRIBUTION
[ ] Mail Check [ ] Credit To Certificate At Maturity Only [x] Credit To Acct. No. 3300032362
---------------
CD Held for Collateral
Trade Note
Finance Dept.
/s/ [ILLEGIBLE]
--------------------------------------
BANK AUTHORIZED SIGNATURE
This Term Deposit Is Subject To The Terms And Conditions Hereon And As
Specified On The Signature Card And Agreement On File With Silicon Valley Bank.
TERMS AND CONDITIONS
1. INTEREST RATE AND PAYMENT - The interest rate for your account will be paid
until the maturity date of your certificate. Interest begins to accrue on
the business day you deposit noncash items (for example, checks).
Interest will not be compounded. Interest will be credited according to
your instructions at the time your account is opened. The interest payment
may be credited to your certificate at maturity, credited to another
account at the Bank, or paid by cashier's check on either a monthly,
quarterly, semi-annual or annual basis or at maturity of the certificate.
However, if the certificate is less than 31 days, interest will only be
credited at maturity. We use the daily balance method to calculate the
interest on your account. This method applies a daily periodic rate to the
principal in the account each day.
2. ADDITIONAL DEPOSITS - After the account is opened, deposits will only be
accepted on the maturity date or any date within the grace period.
3. RENEWAL - This account will automatically renew at maturity for a like
period at Silicon Valley Bank's prevailing interest rate for that
particular term. You have a grace period after the maturity date to
withdraw the funds without being charged a penalty. You have a grace
period of two (2) business days on a maturity of a 7-31 day term account.
You have a grace period of ten (10) business days on a maturity of a 32 or
more day term account. The Bank reserves the right to terminate this term
deposit during any renewal period upon 10 days written notice to depositor.
If you withdraw your funds during the grace period, the term deposit will
cease earning interest as of the maturity date.
4. PENALTY FOR EARLY WITHDRAWAL - Partial withdrawals will not be permitted.
If we permit a withdrawal before the maturity date, a penalty as shown
below will be imposed.
a. Deposits with an original maturity of 31 days or less will forfeit all
interest earned from the date of deposit. There is a minimum penalty
of seven (7) days simple interest.
b. Deposits with an original maturity of 32 days to one year will forfeit
an amount equal to 31 days simple interest at the interest rate paid
on the time deposit at the time of withdrawal on the full amount of
the deposit.
c. Deposits with an original maturity of more than one year will forfeit
an amount equal to 90 days simple interest at the interest rate being
paid on the time deposit at the time of withdrawal on the full amount
of the deposit.
d. There is no penalty if early withdrawal is made due to the death of a
depositor or if the depositor has been declared legally incompetent.
In complying with the terms of this account, it may be necessary to deduct
a portion of the principal deposit to satisfy an early withdrawal penalty.
PRESENTATION OF THIS RECEIPT IS NOT NECESSARY FOR WITHDRAWAL OF FUNDS FROM THIS
ACCOUNT.
(Member FDIC)
NOT NEGOTIABLE * NOT TRANSFERABLE
15
[SILICON VALLEY BANK LOGO]
RECEIPT FOR TERM DEPOSIT INTERNAL BANK USE
SILICON VALLEY BANK 0000 Xxxxxx Xxxxx Xxxxx Xxxxx, XX 00000-0000 408-654-7400
Class Code 754 Account Number 8800023431 Interest Rate 4.90% Annual Percentage Yield 4.90%
-------- -------------- ----- -----
Issue Date 7/24/98 Maturity Date 7/24/99 Term 365 days
------------ ---------- ------------
Amount Deposited *****$20,000.00***** Dollars
-----------------------------------------------------
IN THE NAME(S) OF
*****Channelpoint Inc*****
FJA 841367639
INTEREST PAYMENT FREQUENCY
[x] Monthly [ ] Quarterly [ ] Semi-Annually [ ] Annually [ ] At Maturity Of The Certificate
METHOD OF INTEREST DISTRIBUTION
[ ] Mail Check [ ] Credit To Certificate At Maturity Only [x] Credit To Acct. No. 3300032362
---------------
CD Held for Collateral
Trade Note
Finance Dept.
/s/ [ILLEGIBLE]
--------------------------------------
BANK AUTHORIZED SIGNATURE
This Term Deposit Is Subject To The Terms And Conditions Hereon And As
Specified On The Signature Card And Agreement On File With Silicon Valley Bank.
TERMS AND CONDITIONS
1. INTEREST RATE AND PAYMENT - The interest rate for your account will be paid
until the maturity date of your certificate. Interest begins to accrue on
the business day you deposit noncash items (for example, checks).
Interest will not be compounded. Interest will be credited according to
your instructions at the time your account is opened. The interest payment
may be credited to your certificate at maturity, credited to another
account at the Bank, or paid by cashier's check on either a monthly,
quarterly, semi-annual or annual basis or at maturity of the certificate.
However, if the certificate is less than 31 days, interest will only be
credited at maturity. We use the daily balance method to calculate the
interest on your account. This method applies a daily periodic rate to the
principal in the account each day.
2. ADDITIONAL DEPOSITS - After the account is opened, deposits will only be
accepted on the maturity date or any date within the grace period.
3. RENEWAL - This account will automatically renew at maturity for a like
period at Silicon Valley Bank's prevailing interest rate for that
particular term. You have a grace period after the maturity date to
withdraw the funds without being charged a penalty. You have a grace period
of two (2) business days on a maturity of a 7-31 day term account. You have
a grace period of ten (10) business days on a maturity of a 32 or more day
term account. The Bank reserves the right to terminate this term deposit
during any renewal period upon (10) days written notice to depositor. If
you withdraw your funds during the grace period, the term deposit will
cease earning interest as of the maturity date.
4. PENALTY FOR EARLY WITHDRAWAL - Partial withdrawals will not be permitted.
If we permit a withdrawal before the maturity date, a penalty as shown
below will be imposed.
a. Deposits with an original maturity of 31 days or less will forfeit all
interest earned from the date of deposit. There is a minimum penalty
of seven (7) days simple interest.
b. Deposits with an original maturity of 32 days to one year will forfeit
an amount equal to 31 days simple interest at the interest rate paid
on the time deposit at the time of withdrawal on the full amount of
the deposit.
c. Deposits with an original maturity of more than one year will forfeit
an amount equal to 90 days simple interest at the interest rate being
paid on the time deposit at the time of withdrawal on the full amount
of the deposit.
d. There is no penalty if early withdrawal is made due to the death of a
depositor or if the depositor has been declared legally incompetent.
In complying with the terms of this account, it may be necessary to deduct
a portion of the principal deposit to satisfy an early withdrawal penalty.
PRESENTATION OF THIS RECEIPT IS NOT NECESSARY FOR WITHDRAWAL OF FUNDS FROM THIS
ACCOUNT.
(Member FDIC)
NOT NEGOTIABLE * NOT TRANSFERABLE
16
[SILICON VALLEY BANK LOGO]
RECEIPT FOR TERM DEPOSIT INTERNAL BANK USE
SILICON VALLEY BANK 0000 Xxxxxx Xxxxx Xxxxx Xxxxx, XX 00000-0000 408-654-7400
Class Code 754 Account Number 8800023350 Interest Rate 4.90% Annual Percentage Yield 4.90%
-------- -------------- ----- -----
Issue Date 7/24/98 Maturity Date 7/24/99 Term 365 days
------------ ---------- ------------
Amount Deposited *****$20,000.00***** Dollars
-----------------------------------------------------
IN THE NAME(S) OF
*****Channelpoint Inc*****
FJA 841367639
INTEREST PAYMENT FREQUENCY
[x] Monthly [ ] Quarterly [ ] Semi-Annually [ ] Annually [ ] At Maturity Of The Certificate
METHOD OF INTEREST DISTRIBUTION
[ ] Mail Check [ ] Credit To Certificate At Maturity Only [x] Credit To Acct. No. 3300032362
---------------
CD Held for Collateral
Trade Note
Finance Dept.
/s/ [ILLEGIBLE]
--------------------------------------
BANK AUTHORIZED SIGNATURE
This Term Deposit Is Subject To The Terms And Conditions Hereon And As
Specified On The Signature Card And Agreement On File With Silicon Valley Bank.
TERMS AND CONDITIONS
1. INTEREST RATE AND PAYMENT - The interest rate for your account will be paid
until the maturity date of your certificate. Interest begins to accrue on
the business day you deposit noncash items (for example, checks).
Interest will not be compounded. Interest will be credited according to
your instructions at the time your account is opened. The interest payment
may be credited to your certificate at maturity, credited to another
account at the Bank, or paid by cashier's check on either a monthly,
quarterly, semi-annual or annual basis or at maturity of the certificate.
However, if the certificate is less than 31 days, interest will only be
credited at maturity. We use the daily balance method to calculate the
interest on your account. This method applies a daily periodic rate to the
principal in the account each day.
2. ADDITIONAL DEPOSITS - After the account is opened, deposits will only be
accepted on the maturity date or any date within the grace period.
3. RENEWAL - This account will automatically renew at maturity for a like
period at Silicon Valley Bank's prevailing interest rate for that
particular term. You have a grace period after the maturity date to
withdraw the funds without being charged a penalty. You have a grace
period of two (2) business days on a maturity of a 7-31 day term account.
you have a grace period of ten (10) business days on a maturity of a 32 or
more day term account. The Bank reserves the right to terminate this term
deposit during any renewal period upon 10 days written notice to depositor.
If you withdraw your funds during the grace period, the term deposit will
cease earning interest as of the maturity date.
4. PENALTY FOR EARLY WITHDRAWAL - Partial withdrawals will not be permitted.
If we permit a withdrawal before the maturity date, a penalty as shown
below will be imposed.
a. Deposits with an original maturity of 31 days or less will forfeit all
interest earned from the date of deposit. There is a minimum penalty
of seven (7) days simple interest.
b. Deposits with an original maturity of 32 days to one year will forfeit
an amount equal to 31 days simple interest at the interest rate paid
on the time deposit at the time of withdrawal on the full amount of
the deposit.
c. Deposits with an original maturity of more than one year will forfeit
an amount equal to 90 days simple interest at the interest rate being
paid on the time deposit at the time of withdrawal on the full amount
of the deposit.
d. There is no penalty if early withdrawal is made due to the death of a
depositor or if the depositor has been declared legally incompetent.
In complying with the terms of this account, it may be necessary to deduct
a portion of the principal deposit to satisfy an early withdrawal penalty.
PRESENTATION OF THIS RECEIPT IS NOT NECESSARY FOR WITHDRAWAL OF FUNDS FROM THIS
ACCOUNT.
(Member FDIC)
NOT NEGOTIABLE * NOT TRANSFERABLE
17
AMENDMENT OF LEASE AGREEMENT
This Amendment of Lease is made this 9th day of December, 1996 by and between
One Mall, LLC, a Maryland Limited Liability Company (the "Landlord"), and SHL
ACT Systemhouse Corp., successor in interest to SHL Kee Systems Inc. (the
"Tenant").
RECITALS
1. Landlord is the owner of the One Mall North Building (the "Building"),
an office building located at 00000 Xxxxxxxx Xxxxxxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxxx 00000.
2. The Landlord and the successor to the Tenant have entered into an
agreement of Lease, dated July 31, 1995, whereby, among other things,
the Landlord has leased unto the Tenant (the "Lease") that certain
portion of the fourth floor of the Building containing approximately
13,029 rentable square feet of space (the "Fourth Floor Space"), and
that portion of the first floor at the Building (the "First Floor
Space") containing approximately 3,750 rentable square feet.
3. The Lease has been assigned to the Tenant with Landlord's consent.
4. The Lease, pursuant to its terms, creates the obligation on the
part of the Tenant to expand into the Must Take Space on the fourth
floor of the Building as shown on Exhibit A of the Lease (the "Must
Take Space") on or before September 1, 1996. Tenant actually expanded
into the Must Take Space as of April 15, 1996 and has been paying rent
pursuant to the terms set forth herein since that date.
5. Tenant desires to future expand on the first floor of the Building,
in accordance with the terms and conditions and plan set forth below
(the "First Floor Expansion Space").
NOW, THEREFORE, in consideration of the mutual promises of the parties hereto,
the promises, and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto do hereby agree as follows:
1. Lease: Except as provided herein, all the terms and conditions under
the Lease shall remain in full force and effect.
2. Must Take Space: As of April 15, 1996 the Fourth Floor Space shall be
increased by the Must Take Space, as shown on Exhibit A hereto, which
Must Take Space contains, the agreed upon equivalent of 775 rentable
square feet (the Must Take Space and the Fourth Floor Space shall
hereinafter collectively be the "Expanded Fourth Floor Space").
18
3. Rental:
a) From April 15, 1996 and throughout the Lease Term, the basic annual
rent for the Must Take Space shall be paid at the same rental rates
per rentable square foot and in the same manner as set forth in
Section 5 of the Lease.
b) The rental to be paid by Tenant for the First Floor Expansion Space
shall be at the rental rates set forth in the Lease plus ($2.00) per
square foot and shall commence November 1, 1996.
c) The percentage of the Building that is occupied by the Tenant shall be
increased by 3% for purposes of computing Tenant's allocable
percentage of any Operating Expense and Real Estate Tax increases.
4. Tenant Improvements: Tenant acknowledges and agrees that Landlord has
delivered the Must Take Space as required under the Lease. The build out
specifications for the First Floor Expansion Space is set forth on Exhibit
B hereto and dated "Revision 20-08-96" which Landlord agrees to construct
on a turn key basis. If Tenant makes any changes to the Exhibit, Tenant
agrees to promptly reimburse Landlord for any costs Landlord incurs beyond
the cost to construct the space.
5. First Floor Expansion Space: The First Floor Expansion Space is shown on
Exhibit B attached hereto and incorporated by reference herein and consists
of 2,088 rentable square feet.
6. Term: The initial Term for the Must Take Space and the First Floor
Expansion Space shall be coterminous with the Term as set forth in the
Lease, it being the express intention of the parties that the Term for the
Must Take Space shall commence on April 15, 1996 and that the term for the
First Floor Expansion Space shall commence on November 1, 1996, and shall
expire on August 31, 2000. With respect to the First Floor Expansion Space
only, Landlord agrees that Tenant provided Tenant is not in default
hereunder, shall have the right to terminate the Lease as of December 31,
1997, (the "Termination Date"), by doing all of the following:
(i) send written notice to Landlord exercising Tenant's right to so
terminate the Lease with respect to the First Floor Expansion Space
only on or before September 30, 1997;
(ii) the Tenant shall be responsible for the payment of a termination Fee
in the form of one month gross rental plus all of the Landlord's
unamortized tenant improvement costs related to the First Floor
expansion space at the Termination Date. Tenant shall nevertheless be
responsible to pay the rental for the First Floor Expansion Space
until and through the Termination Date and shall also be responsible
for the allocable share of the Operating Expenses and Real Estate Tax
for the Building through that date as well.
19
7. Brokerage Commissions: Tenant agrees that Landlord shall not be
responsible to pay any brokerage commissions on the leasing of the
First Floor Expansion Space.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and
sealed this Amendment of Lease as of the day and year first above
written.
WITNESS: ONE MALL, LLC
Governor Xxxxxxxx, LLC, Member
/s/ XXXXXXXX X. XXXXXXX /s/ XXXXX X. XXXX (SEAL)
----------------------- ---------------------
Xxxxx X. Xxxx, Member
SHL SYSTEMHOUSE CORP.
[ILLEGIBLE] [ILLEGIBLE] (SEAL)
----------------------- ---------------------
Authorized Signatory
20
ADDENDUM TO LEASE AGREEMENT DATED DECEMBER 5TH, 1996
BETWEEN ONE MALL, LLC., (AS LANDLORD) AND MCI SYSTEMHOUSE CORP. (AS TENANT)
1. Notices
Delete the address for Tenant stated in the Lease and insert in lieu
thereof the following:
If to Tenant:
SHL Systemhouse Corp.
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Real Estate Services
with a copy to:
MCI Telecommunications Corporation
Law & Public Policy Department
0000 00xx Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Real Estate Administrator.
Notices shall be deemed given when received or refused, as the case may be,
by the addressee.
2. Landlord and Tenant affirm and covenant that each has the authority to
enter into this Amendment, to abide by the terms hereof, and that the
signatories hereto are authorized representatives of their respective entities
empowered by their respective corporations to execute this Amendment.
3. Except as expressly amended or modified herein, all other terms,
covenants and conditions of the Lease shall remain in full force and effect.
4. Landlord hereby convenants and warrants to Tenant that this Amendment
does not require the approval of any lender holding a lien on the Building, nor
of any other third party.
21
LEASE AMENDMENT TWO
THIS LEASE AMENDMENT TWO ("Amendment") is made and entered into as of the 30th
day of June, 1998, by and between CMD Realty Investment Fund III, L. P., an
Illinois limited partnership ("Landlord") and ChannelPoint, Inc., a Delaware
corporation ("Tenant").
A. Landlord and Tenant are the current parties to that certain lease
("Original Lease") dated March 25, 1997, for premises (the "Premises") in the
building (the "Building") known as North Creek II, located at 0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 (the "Property," as may be further
described below), which lease has heretofore been amended or assigned by a
document described and dated as follows First Amendment to Lease dated May 23,
1997 (collectively, and as amended herein, the "Lease").
B. The parties mutually desire to amend the Lease on and subject to the
terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual terms and conditions
herein contained, the parties hereby agree as follows:
1. AMENDMENT. The parties agree that the Lease shall be amended in
accordance with the following terms and conditions:
Section 3 of the Rider to the Lease ("Right to Terminate") is
hereby deleted from the Lease.
2. EFFECTIVE DATE. This Amendment shall become effective as an
amendment to the Lease as of, on and after July 1, 1998 (herein referred to as
the "Effective Date"), and shall continue in effect until amended by the parties
in writing or until expiration or sooner termination of the Lease.
3. BROKERS. Tenant hereby represents and warrants that Tenant has not
dealt with any broker, salesman, agent or finder in connection with this
Amendment, and agrees to defend, indemnify and hold Landlord, and its employees,
agents and affiliates harmless from all damages, losses, judgments, liabilities
and expenses (including reasonable attorneys' fees) arising from any claims or
demands of any broker, salesman, agent or finder with whom Tenant has dealt for
any commission or fee alleged to be due in connection with this Amendment.
4. CONFIDENTIALITY. Tenant shall keep the content and all copies of
this document and the Lease, all related documents or amendments now or
hereafter entered, and all proposals, materials, information and matters
relating thereto strictly confidential, and shall not disclose, disseminate or
distribute any of the same, or permit the same to occur, with respect to any
party other than Tenant's financial or legal advisors to the extent that they
need such information to advise Tenant (and Tenant shall obligate any such other
parties to whom disclosure is permitted to honor the confidentiality provisions
hereof), except as may be required by Law or court proceedings.
22
5. WHOLE AMENDMENT; FULL FORCE AND EFFECT; CONFLICTS. This Amendment
sets forth the entire agreement between the parties with respect to the matters
set forth herein. There have been no additional oral or written representations
or agreements. As amended herein, the Lease between the parties shall remain in
full force and effect. As an inducement for Landlord to enter into this
Amendment, Tenant hereby represents that Landlord is not in violation of the
Lease, and that Landlord has fully performed all of its obligations under the
Lease as of the date on which Tenant signs this Amendment. In case of any
inconsistency between the provisions of the Lease and this Amendment, the latter
provisions shall govern and control.
6. NOT AN OFFER. The submission and negotiation of this Amendment shall
not be deemed an offer to enter into the same by Landlord. Tenant's execution of
this Amendment constitutes a firm offer to enter into the same which may not be
withdrawn for a period of thirty (30) days after delivery to Landlord. During
such period, Landlord may proceed in reliance thereon, but such acts shall not
be deemed an acceptance. Such acceptance shall be evidenced only by Landlord
signing and delivering this Amendment to Tenant.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
WITNESSES; ATTESTATION
(Two for each signatory
required if Building is
in Florida or Ohio):
LANDLORD:
CMD REALTY INVESTMENT FUND III, L.P.,
an Illinois limited partnership
By: CMD/Fund III GP Investments, L.P.,
an Illinois limited partnership,
its general partner
By: CMD XXXX III, Inc.,
an Illinois corporation,
its general partner
By: /s/ [ILLEGIBLE]
--------------------------- -----------------------------------
Name:
--------------------------------
Its:
--------------------------- ----------------------------------
TENANT:
CHANNELPOINT, INC.
a Delaware corporation
/s/ XXXXX X. XXXXXX By: /s/ XXXXXXX X. XXXXXX
--------------------------- ----------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------------
Its: President & CEO
--------------------------- ---------------------------------------
23
EXHIBIT A
STANDARD COMMERCIAL LEASE
ARTICLE 1.00 BASIC LEASE TERMS
1.01 PARTIES. This lease agreement ("Lease") is entered into by and between
the following Lessor and Lessee:
North Creek I-III L.P., a Delaware limited partnership ("Lessor")
MCI Systemhouse Corp., a Delaware corporation ("Lessee")
1.02 LEASED PREMISES. In consideration of the rents, terms, provisions and
covenants of this Lease, Lessor hereby leases, lets and demises to Lessee the
following described premises ("Leased Premises"):
36,246 (Approximate sq. ft.) Entire second floor (Suite no. 200)
North Creek II (Name of building or project)
0000 Xxxx Xxxxxxx Xxxxxxxxx (Xxxxxx address/suite number)
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 (City, State, and Zip Code)
The Leased Premises are shown on Exhibit A-1 attached hereto and
legally described on Exhibit B attached hereto.
1.03 TERM. Subject to and upon the conditions set forth herein, the term of
this Lease shall commence on July 1, 1997 (the "Commencement Date") or as
otherwise more specifically set forth in Exhibit C hereto, and shall terminate
thirty-six (36) months thereafter. If the Commencement Date shall occur on
other than the first day of a month, then the Lease shall terminate on the last
day of the thirty-sixth (36th) full calendar month thereafter.
1.04 BASE RENT AND SECURITY DEPOSIT. Base Rent is pursuant to the Schedule
set forth in Section 2.01. The Security deposit is $____N/A_____, and shall be
held and applied in accordance with Section 2.06.
1.05 ADDRESSES.
Lessor's Address: Lessee's Address:
LaSalle Advisors Limited MCI Telecommunications Corporation
000 Xxxx Xxxxxxxx Xxxxx c/o MCI Systemhouse Corp.
Xxxxxxx, Xxxxxxxx 00000 Attn: Real Estate Administrator
000 X. 00xx Xxxxxx
Xxxxxxxxx, XX 00000
with a copy to: with a copy to:
LPAML Colorado Limited Partnership MCI Telecommunications Corporation
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000 Law and Public Policy
Xxxxxx, Xxxxxxxx 00000 0000 00xx Xxxxxx, X.X.
Attention: General Partner Washington, D.C. 20036
Attention: Real Estate Administrator
1.06 PERMITTED USE. General office use for those uses set forth on
Exhibit D hereto.
ARTICLE 2.00 RENT
2.01 BASE RENT. Lessee agrees to pay monthly as Base Rent during the term
of this Lease the sum of money set forth below, which amount shall be payable at
the address set forth in Section 16.07.
24
Base Rental Rate/ Monthly
Months SF/YR/NNN Base Rent
36 $13.90 $41,984.95
Monthly installment shall be due and payable on or before the first day of each
calendar month succeeding the Commencement Date during the term of this Lease
provided, if the Commencement Date should be a date other than the first day of
a calendar month, the monthly Base Rent set forth above shall be prorated based
on a thirty day month to the end of that calendar month, and all succeeding
installments of rent shall be payable on or before the first day of each
succeeding calendar month during the term of this Lease. Lessee shall pay as
additional rent, all other sums due under this Lease.
2.02 OPERATING EXPENSES. Lessee agrees to pay as additional rent Lessee's
pro rata share of Operating Expenses as defined in Section 2.03 below. For
purposes of this Lease, Lessee's pro rata share shall be determined by dividing
36,246 (the approximate square footage for the Leased Premises) by 105,790 (the
approximate square footage of the building), multiplying the resulting quotient
by 100, and rounding to the second decimal place (approximately 34.26%).
Tenant's pro rata share shall be adjusted accordingly if the square footage of
the Leased Premises is increased pursuant to the terms of this Lease. Lessor may
invoice Lessee monthly for Lessee's pro rata share of the estimated Operating
Expenses for each calendar year, which amount shall be adjusted each year based
upon the anticipated Operating Expenses. Within six months following the close
of each calendar year, Lessor shall provide Lessee an accounting showing in
reasonable detail all computations of additional rent due under this section. In
the event the accounting shows that the total of the monthly payments made by
Lessee exceeds the amount of additional rent due by Lessee under this section,
the accounting shall be accompanied by a refund. In the event the accounting
shows that the total of the monthly payments made by Lessee is less than the
amount of additional rent due by Lessee under this section, the accounting shall
be accompanied by an invoice for the additional rent. Notwithstanding any other
provisions in this Lease, during the year in which the Lease terminates, Lessor,
prior to the termination date, shall have the option to invoice Lessee for
Lessee's pro rata share of the Operating Expenses based upon the previous year's
Operating Expenses. If this Lease shall terminate on a day other than the last
day of a calendar year, the amount of any additional rent payable by Lessee
applicable to the year in which such termination shall occur shall be prorated
on the ratio that the number of days from the commencement of the calendar year
to and including the termination date bears to 365. Lessee shall have the right,
at its own expense, within ninety (90) days of receipt of any invoice, to audit
Lessor's books relevant to the additional rent payable under such invoice. After
such ninety (90) day period, Lessee's right to audit with respect to such
invoice is waived. Lessee agrees to pay any additional rent due under this
section within thirty (30) days following receipt of the invoice or accounting
showing additional rent due. [See Rider, Paragraph 1.]
2.03 DEFINITION OF OPERATING EXPENSES. The term "Operating Expenses"
includes all expenses incurred by Lessor with respect to the maintenance and
operation of the parking areas and the Building of which the Leased Premises are
a part, including, but not limited to, the following: maintenance, repair and
replacement costs; electricity, fuel, water, sewer, gas and other utility
charges; security, window washing and janitorial services; trash and snow
removal; landscaping and pest control; management fees, wages and benefits
payable to employees of Lessor whose duties are directly connected with the
operation and maintenance of the building; all services, supplies, repairs,
landscaping replacements or other expenses for maintaining and operating the
building or project including parking and common areas; the cost, including
interest, amortized over its useful life, of any capital improvement made to the
building which is required under any governmental law or regulation that was not
applicable to the building at the time it was constructed; the cost, including
interest, amortized over its useful life, of installation of any device or other
equipment which improves any system within the Leased Premises or the building;
all other expenses which would generally be regarded as operating, ownership and
maintenance expenses which would reasonably be amortized over a period in
accordance with
2
25
generally accepted Internal Revenue Service amortization schedules; all real
property taxes and installments of special assessments, including assessments by
means of deed restrictions and/or owners' associations which accrue against the
building of which the Leased Premises are a part during the term of this Lease;
and all insurance premiums Lessor is required to pay or deems necessary to pay,
including public liability insurance, with respect to the building. The term
Operating Expenses does not include the following: repairs, restoration or other
work occasioned by fire, wind, the elements or other casualty to the extent of
insurance proceeds; income and franchise taxes of Lessor; expenses incurred in
leasing to or procuring of lessees, leasing commissions, advertising expenses
and expenses for the renovating of space for new lessees; interest or principal
payments on any mortgage or other indebtedness of Lessor; compensation paid to
any employee of Lessor above the grade of property manager; any depreciation
allowance or expense; Operating Expenses which are the direct responsibility of
Lessee; costs of excess or additional services provided to any lessee that are
directly billed to such lessee; any income, estate, inheritance, transfer tax,
excess profit or franchise tax on Lessor's business; all costs, including legal
fees, relating to activities for the solicitation and execution of leases of
space in the building; any delinquent interest or penalties due or charged for
late payment of taxes; or any legal fees incurred by Lessor in enforcing its
rights under other leases for premises in the building. [See Rider, Paragraph
2.]
2.04 LATE PAYMENT CHARGE. Other remedies for nonpayment of rent
notwithstanding, if the monthly rental payment is not received by Lessor on or
before the tenth day; of the month for which the rent is due, or if any other
payment due Lessor by Lessee is not received by Lessor on or before the tenth
day of the month next following the month in which Lessee was invoiced, a late
payment charge of five percent (5%) applied to such past due amount shall become
due and payable in addition to such amounts owed under this Lease.
2.05 INCREASE IN INSURANCE PREMIUM. If an increase in any insurance
premiums paid by Lessor for the building is caused by Lessee's use of the
Leased Premises in a manner other than as set forth in Section 1.06, or if
Lessee vacates the Leased Premises and causes an increase in such premiums, then
Lessee shall pay as additional rent the amount of such increase to Lessor,
within thirty (30) days after receipt of invoice with supporting documentation
attached.
2.06 SECURITY DEPOSIT. Intentionally Deleted.
2.07 HOLDING OVER. In the event the Lessee does not vacate the Leased
Premises upon the expiration or termination of this Lease, Lessee shall be a
tenant at will for the holdover period and all of the terms and provisions of
this Lease shall be applicable during that period, except that Lessee shall pay
Lessor as Base Rental for the period of such holdover an amount equal to one and
one-half (1.5) times the Base Rent which would have been payable by Lessee had
the holdover period been a part of the original term of this Lease. Lessee
agrees to vacate and deliver the Leased Premises to Lessor upon Lessee's receipt
of written notice from Lessor to vacate. The rental payable during the holdover
period shall be payable to Lessor on demand. No holding over by Lessee, whether
with or without the consent of Lessor, shall operate to extend the term of this
Lease.
ARTICLE 3.00 OCCUPANCY AND USE
3.01 USE. Lessee warrants and represents to Lessor that the Leased Premises
shall be used and occupied only for the purpose as set forth in Section 1.06.
Lessee shall occupy the Leased Premises, conduct its business and control its
agents, employees, invitees and visitors in such a manner as is lawful,
reputable and will not create a nuisance. Lessee shall not permit any operation
which emits any odor or matter which intrudes into other portions of the
building, use any apparatus or machine which makes undue noise or causes
vibration in any portion of the building or otherwise interfere with, annoy or
disturb any other lessee in its normal business operations or Lessor in its
management of the building. Lessee shall neither permit any waste on the Leased
Premises nor allow the Leased Premises to be used in any
3
26
way which would, in the opinion of Lessor, be extra hazardous on account of fire
or which would in any way increase or render void the fire insurance on the
building.
3.02 SIGNS. No sign of any type or description shall be erected, placed or
painted in or about the Leased Premises or project except those signs submitted
to Lessor in writing and approved by Lessor in writing, and which signs are in
conformance with Lessor's sign criteria established for the project.
3.03 COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Lessee, at Lessee's sole
cost and expense, shall comply with all laws, ordinances, orders, rules and
regulations of state, federal, municipal or other agencies or bodies having
jurisdiction over the use, condition or occupancy of the Leased Premises. Lessee
will comply with the rules and regulations of the building adopted by Lessor
which are set forth on Exhibit G attached to this Lease. Lessor shall have the
right at all times to change and amend the rules and regulations in any
reasonable manner as may be deemed advisable for the safety, care, cleanliness,
preservation of good order and operation or use of the building or the Leased
Premises. All changes and amendments to the rules and regulations of the
building will be sent by Lessor to Lessee in writing and shall thereafter be
carried out and observed by Lessee. [See Rider, Paragraph 3.]
3.04 WARRANTY OF POSSESSION. Lessor warrants that it has the right and
authority to execute this Lease, and Lessee, upon payment of the required rents
and subject to the terms, conditions, covenants and agreements contained in this
Lease, shall have possession of the Leased Premises during the full term of this
Lease as well as any extension or renewal thereof. Lessor shall not be
responsible for the acts or omissions of any other lessee or third party that
may interfere with Lessee's use and enjoyment of the Leased Premises.
3.05 INSPECTION. Lessor or its authorized agents shall at any and all
reasonable times have the right to enter the Leased Premises to inspect the
same, to supply janitorial service or any other service to be provided by
Lessor, to show the Leased Premises to prospective purchasers and lenders of the
Building at any time upon reasonable prior verbal notice or to prospective
lessees during the last twelve (12) months of the Lease Term or if the Lessee is
in default then Lessor may show the Premises at any time, and to alter, improve
or repair the Leased Premises or any other portion of the building. Lessee
hereby waives any claim for damages for injury or inconvenience to or
interference with Lessee's business, any loss of occupancy or use of the Leased
Premises, and any other loss occasioned thereby (however, Lessee shall have the
right to have an employee or other agent present during any entry to show the
Premises or perform scheduled maintenance and shall in fact supply such escort
upon reasonable prior verbal request of Lessor). Lessor shall at all times have
and retain a key with which to unlock all of the doors in, upon and about the
Leased Premises except for portions of the Leased Premises that are on a
separate security system, which shall be accessible at any time upon prior
verbal request of Lessor, subject to Lessee's right to have an escort present.
Lessee shall not change Lessor's lock system or in any other manner prohibit
Lessor from entering the Leased Premises; however, Lessee may install, at its
expense, a "card key" or other similar security system provided Lessor is also
provided a "key" to the system. Lessor shall have the right to use any and all
means which Lessor may deem proper to open any door in an emergency without
liability therefor.
ARTICLE 4.00 UTILITIES AND SERVICE
4.01 BUILDING SERVICES. Lessor shall provide water and electricity for
Lessee during the term of this Lease. Lessee shall pay all telephone charges.
Lessor shall furnish Lessee hot and cold water at those points or supply
provided for general use of other lessees in the building, central heating and
air conditioning in season (at times Lessor normally provides these services to
other lessees in the building, and at temperatures and in amounts as are
considered by Lessor to be standard or in compliance with any governmental
regulations, such service on Saturday afternoons, Sundays, evenings and holidays
to be furnished only upon the request of Lessee, who shall bear the entire
cost). Lessor shall also provide routine maintenance, painting and electric
lighting service for all public areas and special service areas of the building
in
4
27
the manner and to the extent deemed by Lessor to be standard. Lessor may, in
its sole discretion, provide additional services not enumerated herein. Failure
by Lessor to any extent to provide these defined services or any other services
not enumerated, or any cessation thereof, shall not render Lessor liable in any
respect for damages to either person or property, be construed as an eviction of
Lessee, work an abatement of rent or relieve Lessee from fulfillment of any
covenant in this Lease. Should any of the equipment or machinery break down, or
for any cause cease to function properly, Lessor shall use reasonable diligence
to repair the same promptly, but Lessee shall have no claim for rebate of rent
on account of any interruption in service occasioned from the repairs. Lessor
reserves the right from time to time to make changes in the utilities and
services provided by Lessor to the building. [See Rider, Paragraph 4.]
4.02 THEFT OR BURGLARY. Lessor shall not be liable to Lessee for losses to
lessee's property or personal injury caused by criminal acts or entry by
unauthorized persons into the Leased Premises or the building.
4.03 JANITORIAL SERVICE. Lessor shall furnish janitorial services to the
Leased Premises and public areas of the building five times per week during the
term of this Lease, excluding holidays. Lessor shall not provide janitorial
service to kitchens.
4.04 EXCESSIVE UTILITY CONSUMPTION. Lessee shall pay all utility costs
occasioned by electrodata processing machines, telephone equipment, computers
and other equipment of high electrical consumption, including without
limitation, the cost of installing, servicing and maintaining any special or
additional inside or outside wiring or lines, meters or submeters, transformers,
poles, air conditioning costs, or the cost of any other equipment necessary to
increase the amount or type of electricity or power available to the Leased
Premises. Lessor may at Lessee's expense submeter the Leased Premises and Lessee
shall pay for such utility costs used therein.
4.05 WINDOW COVERINGS. Lessor shall furnish and install window coverings on
all exterior windows to maintain a uniform exterior appearance. Lessee shall not
remove or replace these window coverings or install any other window covering
which would affect the exterior appearance of the building. Lessee may install
lined or unlined over draperies on the interior sides of the Lessor furnished
window coverings for interior appearance or to reduce light transmission,
provided such over draperies do not affect the exterior appearance of the
building or affect the operation of the building's heating, ventilating and air
conditioning systems.
4.06 CHARGE FOR SERVICE. Unless otherwise excluded in Section 2.02 hereof,
all costs of Lessor for providing the services set forth in Article 4.00 (except
those charges paid by Lessee pursuant to Section 4.04) shall be subject to the
additional rent provisions in Section 2.02.
ARTICLE 5.00 REPAIRS AND MAINTENANCE
5.01 LESSOR REPAIRS. Unless otherwise excluded in Section 2.02 hereof,
Lessor shall not be required to make any improvements, replacements or repairs
of any kind or character to the Leased Premises or the project during the term
of this Lease except as are set forth in this section. Lessor shall maintain
only the roof, foundation, parking and common areas, the structural soundness of
the exterior walls, doors, corridors, windows and other standard structures or
standard equipment serving the Leased Premises, expressly excluding equipment
installed by or for the Lessee. Lessor's cost of maintaining and repairing the
items set forth in this section are subject to the additional rent provisions in
Section 2.02. Lessor shall not be liable to Lessee, except as expressly provided
in this Lease, for any damage or inconvenience, and Lessee shall not be entitled
to any abatement or reduction of rent, except as stated in the Lease, by reason
of any repairs, alterations or additions made by Lessor under this Lease.
5.02 LESSEE REPAIRS. Lessee shall, at its own cost and expense, repair or
replace any damage or injury to all or any part of the Leased Premises caused by
any act or omission of Lessee or Lessee's agents, employees, invitees, licensees
or
5
28
visitors; provided, however, if Lessee fails to make the repairs or replacements
promptly, Lessor may, at its option, make the repairs or replacements, and the
costs of such repairs or replacements shall be charged to Lessee as additional
rent and shall become payable by Lessee with the payment of the rent next due
hereunder.
5.03 REQUEST FOR REPAIRS. All requests for repairs or maintenance that are
the responsibility of Lessor pursuant to any provision of this Lease must be
made in writing to Lessor at the address in Section 1.05.
ARTICLE 6.00 ALTERATIONS AND IMPROVEMENTS
6.01 LESSOR IMPROVEMENTS. If construction to the Leased Premises is to be
performed by Lessor prior to or during Lessee's occupancy, Lessor will complete
the construction of the improvements to the Leased Premises in accordance with
Exhibit C.
6.02 LESSEE IMPROVEMENTS. Lessee shall not make or allow to be made any
alterations or physical additions in or to the Leased Premises without first
obtaining the written consent of Lessor, the consent for which may in the
reasonable discretion of Lessor be denied. Any alterations, physical additions
or improvements to the Leased Premises made by Lessee shall at once become the
property of Lessor and shall be surrendered to Lessor upon the termination of
this Lease; provided, however, Lessor, at its option, may require Lessee to
remove any physical additions and/or repair any alterations in order to restore
the Leased Premises to the condition existing at the time Lessee took
possession, all costs of removal and/or alterations to be borne by Lessee. This
clause shall not apply to moveable equipment or furniture owned by Lessee, which
may be removed by Lessee at the end of the term of this Lease if Lessee is not
then in default and if such equipment and furniture are not then subject to any
other rights, liens and interests of Lessor. [See Rider, Paragraph 5.]
6.03 MECHANICS LIEN. Lessee will not permit any mechanic's or materialman's
lien(s) or other lien to be placed upon the Leased Premises or the building and
nothing in this Lease shall be deemed or construed in any way as constituting
the consent or request of Lessor, express or implied, by inference or otherwise,
to any person for the performance of any labor or the furnishing of any
materials to the Leased Premises, or any part thereof, nor as giving Lessee any
right, power, or authority to contract for or permit the rendering of any
services or the furnishing of any materials that would give rise to any
mechanic's, materialman's or other lien against the Leased Premises. In the
event any such lien is attached to the Leased Premises, then, in addition to any
other right or remedy of Lessor, Lessor may, but shall not be obligated to,
obtain the release of or otherwise discharge the same. Any amount paid by Lessor
for any of the aforesaid purposes shall be paid by Lessee to Lessor on demand as
additional rent. [See Rider, Paragraph 6.]
ARTICLE 7.00 CASUALTY
7.01 SUBSTANTIAL DESTRUCTION. If the Leased Premises should be totally
destroyed by fire or other casualty, or if the Leased Premises should be damaged
so that rebuilding cannot reasonably be completed within ninety (90) working
days after the date of written notification by Lessee to Lessor of the
destruction, this Lease shall at Lessor's option terminate and the rent shall be
abated for the unexpired portion of the Lease, effective as of the date of the
written notification. Notwithstanding the foregoing, if the casualty occurs
during the last year of the Lease Term, Lessee, at its option, may terminate
this Lease upon thirty (30) days written notice to Lessor.
7.02 PARTIAL DESTRUCTION. If the Leased Premises should be partially
damaged by fire or other casualty, and rebuilding or repairs can reasonably be
completed within ninety working days from the date of written notification by
Lessee to Lessor of the destruction, or Lessor does not elect to terminate this
Lease then Lessor shall, to the extent of insurance proceeds received by Lessor,
proceed with reasonable diligence to rebuild or repair the building or other
improvements to substantially the same condition in which they existed prior to
the damage. If the Leased Premises are to be rebuilt or repaired and are
untenantable in whole or in part following the damage, and
6
29
the damage or destruction was not caused or contributed to by act or negligence
of Lessee, its agents, employees, invitees or those for whom Lessee is
responsible, the rent payable under this Lease during the period for which the
Leased Premises are untenantable shall be equitably abated to such an extent as
may be fair and reasonable under the circumstances based upon the area of the
Leased Premises which are untenantable.
7.03 HOLD HARMLESS. Lessor shall not be liable to Lessee's employees,
agents, invitees, licensees or visitors, or to any other person, for an injury
to person or damage to property on or about the Leased Premises caused by an act
or omission of Lessee, its agents, servants or employees, or of any other person
entering upon the Leased Premises under express or implied invitation by
Lessee, or caused by the improvements located on the Leased Premises becoming
out of repair, to the extent the improvements are not attributed to Lessor's
maintenance obligations as set forth in Section 5, the failure or cessation of
any service provided by Lessor (including security service and devices), or
caused by leakage of gas, oil, water or steam or by electricity emanating from
the Leased Premises. Lessee agrees to indemnify and hold harmless Lessor of and
from any loss, attorney's fees, expenses or claims arising out of any such
damage or injury.
ARTICLE 8.00 CONDEMNATION
8.01 SUBSTANTIAL TAKING. If all or a substantial part of the Leased
Premises are taken for any public or quasi-public use under any governmental
law, ordinance or regulation, or by right of eminent domain or by purchase in
lieu thereof, and the taking would prevent or materially interfere with the use
of the Leased Premises for the purpose for which it is then being used (as
reasonably determined by Tenant to the extent that the actual square footage of
the Leased Premises is rendered untenantable), this Lease shall terminate and
the rent shall be abated during the unexpired portion of this Lease effective on
the date physical possession is taken by the condemning authority. With respect
to a partial taking of any portion of the Building or Building Complex other
than Suite 200, the election to terminate this Lease shall be in Lessor's
discretion. Lessee shall have no claim to the condemnation award or proceeds in
lieu thereof. Lessee may, in a separate legal action, make any separate claims
against the condemning authority permitted by Colorado law for trade fixtures
and moving expenses, but in no event shall any award to Lessee reduce the award
to Lessor.
8.02 PARTIAL TAKING. If a portion of the Leased Premises shall be taken for
any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain or by purchase in lieu thereof, and
this Lease is not terminated as provided in Section 8.01 above, Lessor shall at
Lessor's sole risk and expense, restore and reconstruct the building and other
improvements on the Leased Premises to the extent necessary to make it
reasonably tenantable. The rent payable under this Lease during the unexpired
portion of the term shall be equitably abated to such an extent as may be fair
and reasonable under the circumstances based upon the area of the Leased
Premises which are untenantable. Lessee shall have no claim to the condemnation
award or proceeds in lieu thereof. Lessee may, in a separate legal action, make
any claims against the condemning authority permitted by Colorado law, but in no
event shall any award to Lessee reduce the award to Lessor.
ARTICLE 9.00 ASSIGNMENT OR SUBLEASE
9.01 LESSOR ASSIGNMENT. Lessor shall have the right to sell, transfer or
assign, in whole or in part, its rights and obligations under this Lease and in
the building. Any such sale, transfer or assignment shall operate to release
Lessor from any and all liabilities under this Lease arising after the date of
such sale, assignment or transfer.
9.02 LESSEE ASSIGNMENT. Lessee shall not assign, in whole or in part, this
Lease, or allow it to be assigned, in whole or in part, by operation of law or
otherwise or mortgage or pledge the same, or sublet the Leased Premises, in
whole or in part, without the prior written consent of Lessor, and Lessor may
consider the intended
7
30
use, parking requirements, and financial condition of the prospective assignee
or subtenant in deciding whether to consent, and in no event shall any such
assignment or sublease ever release Lessee or any guarantor from any obligation
or liability hereunder. No assignee or sublessee of the Leased Premises or any
portion thereof may assign or sublet the Leased Premises or any portion thereof.
Any assignment or subletting in violation hereof is void at Lessor's option.
[See Rider, Paragraph 7.]
9.03 CONDITIONS OF ASSIGNMENT. If Lessee desires to assign or sublet all or
any part of the Leased Premises, it shall so notify Lessor at least thirty (30)
days in advance of the date on which Lessee desires to make such assignment or
sublease. Lessee shall provide Lessor with a copy of the proposed assignment or
sublease and such information as Lessor might request concerning the proposed
sublessee or assignee to allow Lessor to make informed judgments as to the
financial condition, reputation, operations and general desirability of the
proposed sublessee or assignee. Within fifteen days after Lessor's receipt of
Lessee's proposed assignment or sublease and all required information concerning
the proposed sublessee or assignee, Lessor shall have the following options: (1)
cancel this Lease as to the Leased Premises or portion thereof proposed to be
assigned or sublet; (2) consent to the proposed assignment or sublease, and, if
the rent due and payable by any assignee or sublessee under any such permitted
assignment or sublease (or a combination of the rent payable under such
assignment or sublease plus any bonus or any other consideration or any payment
incident thereto) exceeds the rent payable under this Lease for such space,
Lessee shall pay to Lessor all such excess rent and other excess consideration,
less any reasonable expenses incurred in obtaining the assignment or sublease,
within ten days following receipt thereof by Lessee; or (3) refuse, in its sole
discretion and judgment, to consent to the proposed assignment or sublease. Upon
the occurrence of an event of default, if all or any part of the Leased Premises
are then assigned or sublet, Lessor, in addition to any other remedies provided
by this Lease or provided by law, may, at its option, collect directly from the
assignee or sublessee all rents becoming due to Lessee by reason of the
assignment or sublease, and Lessor shall have a security interest in all
properties on the Leased Premises to secure payment of such sums. Any collection
directly by Lessor from the assignee or sublessee shall not be construed to
constitute a novation or a release of Lessee or any guarantor from the further
performance of its obligations under this Lease.
9.04 SUBORDINATION. Lessee accepts this Lease subject and subordinate to
any recorded mortgage or deed of trust lien presently existing or hereafter
created upon the building or project and to all existing recorded restrictions,
covenants, easements and agreements with respect to the building or project.
Lessor is hereby irrevocably vested with full power and authority to subordinate
Lessee's interest under this Lease to any first mortgage or deed of trust lien
hereafter place on the Leased Premises, and Lessee agrees upon demand to execute
additional instruments subordinating this Lease as Lessor may require. If the
interests of Lessor under this Lease shall be transferred by reason of
foreclosure or other proceedings for enforcement of any first mortgage or deed
of trust lien on the Leased Premises, Lessee shall be bound to the transferee
(sometimes called the "Purchaser") under the terms, covenants and conditions of
this Lease for the balance of the term remaining, including any extensions or
renewals, with the same force and effect as if the Purchaser were Lessor under
this Lease, and, if requested by the Purchaser, Lessee agrees to attorn to the
Purchaser, including the first mortgagee under any such mortgage if it be the
Purchaser, as its Lessor. [See Rider, Paragraph 8].
9.05 ESTOPPEL CERTIFICATES. Lessee agrees to furnish, from time to time,
within fifteen (15) days after receipt of a request from Lessor or Lessor's
mortgagee, a statement certifying, if applicable, the following: Lessee is in
possession of the Leased Premises; the Leased Premises are acceptable except for
defects which Lessor is obligated to repair, if any, specifying same; the Lease
is in full force and effect; the Lease is unmodified; Lessee claims no present
charge, lien, or claim of offset against rent; the rent is paid for the current
month, but is not prepaid for more than one month and will not be prepaid for
more than one month in advance; there is no existing default by reason of some
act or omission by Lessor; and such other matters as may be reasonably required
by Lessor or Lessor's mortgagee. Lessee's failure to deliver such statement, in
addition to being a default under this Lease, shall be
8
31
deemed to establish conclusively that this Lease is in full force and effect
except as declared by Lessor, that Lessor is not in default of any of its
obligations under this Lease, that Lessor has not received more than one month's
rent in advance, and such other matters as set forth in the estoppel.
ARTICLE 10.00 LIENS
Intentionally Deleted.
ARTICLE 11.00 DEFAULT AND REMEDIES
11.01 DEFAULT BY LESSEE. The following shall be deemed to be events of
default by Lessee under this Lease: (1) Lessee shall fail to pay when due any
installment of rent or other payment required pursuant to this Lease and the
failure is not cured within ten (10) days after receipt of written notice;
provided, however, Lessee shall not be entitled to more than two (2) notices of
a delinquency in payment during any calendar year; (2) Lessee shall abandon any
substantial portion of the Leased Premises; (3) Lessee shall fail to comply with
any term, provision or covenant of this Lease, other than the payment of rent,
and the failure is not cured within twenty (20) days after receipt of written
notice by Lessee or if such default cannot reasonably be cured within twenty
(20) days, then Lessee has failed to commence to cure within such twenty (20)
day period and/or fails to diligently prosecute same to completion, or to the
extent that such default does not interfere with or disturb any other lessee or
violate law, then such cure period shall be thirty (30) days; (4) Lessee shall
file a petition or be adjudged bankrupt or insolvent under any applicable
federal or state bankruptcy or insolvency law or admit that it cannot meet its
financial obligations as they become due; or a receiver or trustee shall be
appointed for all or substantially all of the assets of Lessee; or Lessee shall
make a transfer in fraud of creditors or shall make an assignment for the
benefit of creditors; (5) Lessee shall vacate or abandon the Leased Premises
except as permitted by the Rider, Paragraph 9; or (6) Lessee shall do or permit
to be done any act which results in a lien being filed against the Leased
Premises or the building and/or project of which the Leased Premises are a part
and Lessee has not removed such lien within thirty (30) days after receipt of
notice of such filing.
11.02 Remedies for Lessee's Default. Upon the occurrence of any event of
default set forth in this Lease, Lessor shall have the option to pursue any one
or more of the remedies set forth herein without any notice or demand. (1)
Lessor may enter upon and take possession of the Leased Premises, by picking or
changing locks if necessary, and lock out, expel or remove Lessee and any other
person who may be occupying all or any part of the Leased Premises without being
liable for any claim for damages, and relet the Leased Premises on behalf of
Lessee and receive the rent directly by reason of the reletting. Lessee agrees
to pay Lessor on demand any deficiency that may arise by reason of any reletting
of the Leased Premises; further, Lessee agrees to reimburse Lessor for any
expenditures made by it in order to relet the Leased Premises, including, but
not limited to, commissions, remodeling and repair costs. (2) Lessor may enter
upon the Leased Premises, by picking or changing locks if necessary, without
being liable for any claim for damages, and do whatever Lessee is obligated to
do under the terms of this Lease. Lessee agrees to reimburse Lessor on demand
for any expenses which Lessor may incur in effecting compliance with Lessee's
obligations under this Lease; further, Lessee agrees that Lessor shall not be
liable for any damages resulting to Lessee from effecting compliance with
Lessee's obligations under this Lease caused by the negligence of Lessor or
otherwise. (3) Lessor may terminate this Lease, in which event Lessee shall
immediately surrender the Leased Premises to Lessor, and if Lessee fails to
surrender the Leased Premises, Lessor may, without prejudice to any other remedy
which it may have for possession or arrearages in rent, enter upon and take
possession of the Leased Premises, by picking or changing locks if necessary,
and lock out, expel or remove Lessee and any other person who may be occupying
all or any part of the Leased Premises without being liable for any claim for
damages. (4) Lessor may, in addition to any other damages and sums due Lessor
including past due rents and attorneys' fees, elect to terminate the Lease, and
recover in addition to the above a sum equal to all Base Rent and additional
sums due for the remaining term of the Lease, as reasonably determined
9
32
by Lessor using existing estimates of Operating Expenses, less the reasonable
rental value of the Leased Premises over the remaining term. Lessee agrees to
pay on demand the amount of all loss and damage which Lessor may suffer by
reason of the default by Lessee including arising from the termination of this
Lease under this section, whether through inability to relet the Leased Premises
on satisfactory terms or otherwise. Notwithstanding any other remedy set forth
in this Lease, in the event Lessor has made rent concessions of any type or
character, or waived any Base Rent, and Lessee defaults at any time during the
terms of this Lease, the rent concessions, including any waived Base Rent, shall
be cancelled and the amount of the Base Rent or other rent concessions shall be
due and payable immediately as if no rent concessions or waiver of any Base Rent
had ever been granted. A rent concession or waiver of the Base Rent shall not
relieve Lessee of any obligation to pay any other charge due and payable under
this Lease including without limitation any sum due under Section 2.02.
Notwithstanding anything contained in this Lease to the contrary, this Lease may
be terminated by Lessor only by mailing or delivering written notice of such
termination to Lessee, and no other act or omission of Lessor shall be construed
as a termination of this Lease. All sums not paid when due shall accrue interest
at the Default Rate.
ARTICLE 12.00 RELOCATION
Intentionally Deleted.
ARTICLE 13.00 INSURANCE
13.01 GENERAL REQUIREMENTS. Lessee shall, during its occupancy of the
Leased Premises and during the entire term hereof and any extended term, at its
sole cost and expense, obtain, maintain and keep in full force and effect the
following types and kinds of insurance:
(a) Property Insurance upon property of every description and kind owned by
the Lessee and located in the building or on the project or for which the
Lessee is legally liable or installed by or on behalf of the Lessee,
including, without limitation furniture, fixtures, fittings, installations,
alterations, additions, partitions, fixtures and anything in the nature of
a leasehold improvement in an amount of not less than the full replacement
cost thereof on an all risk basis. In the event that there is a dispute as
to the amount which comprises full replacement cost, the decision of the
Lessor or the mortgagees of the Lessor shall be conclusive. Evidence of
this insurance shall be provided on XXXXX Form 27.
(b) Commercial General Liability Insurance which shall include but not be
limited to bodily injury, property damage, personal injury and broad form
contractual liability and non-owned automobile liability in an amount of
not less than $1,000,000 per occurrence and $2,000,000 in the aggregate
combined single limit. The Lessor, the Lessor's agent, the Lessor's
mortgagee and any other parties which the Lessor shall deem necessary shall
be named as an additional insured therein as their respective interests may
appear. This insurance shall be considered to be primary and
noncontributory to any other insurance carried by the Lessor.
(c) Automobile Liability Insurance (if applicable) in an amount of not less
than $1,000,000 combined single limit for bodily injury and property damage
providing coverage for all owned, non-owned and hired automobiles.
(d) Workers' Compensation Insurance in the statutory form and amounts
required by the State of Colorado and Employer's Liability Insurance in an
amount of not less than:
$500,000 bodily injury by accident, each accident
$500,000 bodily injury by disease, policy limit
$500,000 bodily injury by disease, each employee
10
33
(e) Any other form or forms of insurance as the Lessor or the Lessor's
mortgagees may reasonably require from time to time in form, in amounts and
for insurance risks against which a prudent tenant would protect itself.
(f) If Lessee or any contractor of Lessee performs any work on the Leased
Premises, prior to the commencement of any such work, Lessee shall deliver
to Lessor certificates issued by insurance companies licensed to do
business in the State of Colorado, evidencing commercial general liability,
workers' compensation, employer's liability, automobile liability and other
insurance as required by Lessor and its mortgagees, in amounts and with
companies reasonably satisfactory to Lessor, are in force and effect and
maintained by all contractors and subcontractors engaged by Lessee to
perform such work, and name where requested Lessor, Lessor's agent and
Lessor's mortgagee as additional insureds.
All policies shall be written with insurers licensed to do
business in the State of Colorado and shall carry an A. M. Best rating of
not less than AX (A Ten). The Lessee agrees that certificates of insurance
evidencing the required insurance will be delivered to the Lessor no less
than ten (10) days prior to each policy's annual renewal date. Such
certificates will evidence that thirty (30) days written shall be sent to
the Lessor prior to cancellation or nonrenewal of any policy, and shall
evidence the Lessor, Lessor's agent and Lessor's mortgagee as additional
insureds as required under subparagraph 13.01(b).
The Lessee covenants and agrees that in the event of damage or
destruction to the leasehold improvements in the Leased Premises covered by
insurance as required to be taken out by the Lessee herein, and if the
Lessor or Lessee do not terminate this Lease as specifically set forth in
this Lease, the Lessee will use the proceeds of such insurance for the
purpose of repairing or restoring such leasehold improvements at least up
to and including the amounts of the unamortized Allowance. In the event
that Lessor or Lessee are entitled to terminate the Lease, then if the
premises have been damaged, Lessee shall pay to Lessor all of its insurance
proceeds relative to Lessee's cabling costs, but in no event greater than
the amount of Seventy-Two Thousand Dollars ($72,000).
13.02 LESSOR'S INSURANCE. Lessor agrees to carry or cause to be carried
during the term hereof commercial general liability insurance covering bodily
injury, property damage and personal injury in an amount carried by prudent
owners of comparable properties and deemed prudent by the Lessor. Lessor may,
but shall not be obligated to, take out and carry any other form or forms of
insurance as it or the mortgagees of Lessor may reasonably determine to be
advisable. Notwithstanding any contribution by Lessee to the cost of insurance
premiums, Lessee acknowledges that it has no right to receive any proceeds from
any such insurance policies carried by Lessor, and that such insurance will be
for the sole benefit of Lessor, with no coverage for Lessee for any risk insured
against.
13.03 SUBROGATION. The parties hereto agree that any and all fire, extended
coverage and/or property damage insurance which is required to be carried by
either shall be endorsed with a subrogation clause, substantially as follows:
"This insurance shall not be invalidated should the insured waive, in writing
prior to a loss, any and all right of recovery against any party for loss
occurring to the property described therein"; and each party hereto waives all
claims for recovery from the other party, its officers, agents or employees for
any loss or damage (whether or not such loss or damage is caused by negligence
of the other party), and notwithstanding any provisions contained in this Lease
to the contrary, as a result of damage to any of its real or personal property
insured under valid and collectible insurance policies to the extent of the
collectible recovery under such insurance or which would have been collectible
had the party carried the insurance required to be maintained hereunder.
11
34
ARTICLE 14.00 OBSERVANCE OF LAW
14.01 LAW AND COVENANTS. Lessee shall comply with all provisions of any
applicable covenants, rules or restrictions and all provisions of law, including
without limitation, federal, state, county and city laws, ordinances and
regulations and any other governmental, quasi-governmental or municipal
regulations, which shall impose any duty upon Lessor or Lessee, including,
without limitation, the partitioning, equipment operation, alteration, occupancy
and use of the Leased Premises, and to the making of any repairs, replacements,
alterations, additions, changes, substitutions or improvements of or to the
Leased Premises. Moreover, Lessee shall comply with all police, fire and
sanitary regulations imposed by any federal, state, county or municipal
authorities, or made by insurance underwriters, and to observe and obey all
governmental and municipal regulations and other requirements governing the
conduct of any business conducted in the Leased Premises or the use or occupancy
thereof.
14.02 TAXES. Lessee shall fully and timely pay all business and other
taxes, charges, rates, duties, assessments and license fees levied, rates
imposed, charged or assessed against or in respect of the Lessee's occupancy of
the Leased Premises or in respect of the personal property, trade fixtures,
furniture and facilities of the Lessee or the business or income of the Lessee
on and from the Leased Premises, if any, as and when the same shall become due,
and to indemnify and hold Lessor harmless from and against all payment of such
taxes, charges, rates, duties, assessments and license fees and against all
loss, costs, charges and expenses occasioned by or arising from any and all such
taxes, rates, duties, assessments and license fees, and to promptly deliver to
Lessor for inspection, upon written request of the Lessor, evidence satisfactory
to Lessor of any such payments.
ARTICLE 15.00 DEFINITIONS
15.01 ABANDON. Intentionally Deleted.
15.02 ACT OF GOD OR FORCE MAJEURE. An "act of God" or "force majeure" is
defined for purposes of this Lease as strikes, lockouts, sitdowns, material or
labor restrictions by any governmental authority, unusual transportation delays,
riots, floods, washouts, explosions, earthquakes, fire, storms, weather
(including wet grounds or inclement weather which prevents construction), acts
of the public enemy, wars, insurrections and any other cause not reasonably
within the control of Lessor and which by the exercise of due diligence Lessor
is unable, wholly or in part, to prevent or overcome.
15.03 BUILDING OR PROJECT. "Building" or "project" as used in this Lease
means the building and/or project described in Section 1.02, including the
Leased Premises and the land upon which the building or project is situated.
15.04 COMPLETION DATE. "Completion date" shall be the date on which the
improvements erected and to be erected upon the Leased Premises shall have been
completed in accordance with the Exhibit C. Subject to punch list items as set
forth in Exhibit C, the Lessee shall as of the Completion Date accept the Leased
Premises in their "as is" condition and shall be deemed an acknowledgement by
Lessee that the Leased Premises were completed in accordance with Exhibit C, are
suitable for the purposes for which the Leased Premises are let, and that the
Leased Premises are in good and satisfactory condition as of the date of
completion.
15.05 DEFAULT RATE. "Default Rate" shall mean two percent in excess of the
prime rate as announced by Norwest Bank, or its successor; if Norwest Bank
ceases to announce its prime rate then a similar rate or prime rate as
reasonably selected by Lessor or announced by another commercial bank in
Colorado Springs selected by Lessor.
15.06 SQUARE FEET. "Square feet" or "square foot" as used in this Lease
includes the area contained within the Leased Premises together with a common
area percentage factor of the Leased Premises proportionate to the total
building area, as reasonably determined by Lessor. Lessor may remeasure the
total building area or
12
35
complex, in which event Lessee's rent and/or pro rata share may adjust and
Lessor shall upon request deliver copies of such calculations to Lessee.
15.07 SUPPLEMENTAL AGREEMENT. "Supplemental Agreement" shall refer to the
attached Exhibit E. The parties hereto agree that upon the request of Lessor,
Lessee shall execute the Agreement from time to time confirming Lessor's
compliance with the covenants, terms and conditions of this Lease.
ARTICLE 16.00 MISCELLANEOUS
16.01 WAIVER. Failure of Lessor to declare an event of default immediately
upon its occurrence, or delay in taking any action in connection with an event
of default, shall not constitute a waiver of the default, but Lessor shall have
the right to declare the default at any time and take such action as is lawful
or authorized under this Lease. Pursuit of any one or more of the remedies set
forth in Article 11.00 above shall not preclude pursuit of any one or more of
the other remedies provided elsewhere in this Lease or provided by law, nor
shall pursuit of any remedy constitute forfeiture or waiver of any rent or
damages accruing to Lessor by reason of the violation of any of the terms,
provisions or covenants of this Lease. Failure by Lessor to enforce one or more
of the remedies provided upon an event of default shall not be deemed or
construed to constitute a waiver of the default or of any other violation or
breach of any of the terms, provisions and covenants contained in this Lease.
16.02 ACT OF GOD. Neither Lessor nor Lessee shall be required to perform
any covenant or obligation in this Lease, or be liable in damages to the other
party, so long as the performance or non-performance of the covenant or
obligation is delayed, caused or prevented by an act of God, force majeure.
16.03 ATTORNEY'S FEES. In the event Lessee defaults in the performance of
any of the terms, covenants, agreements or conditions contained in this Lease
and Lessor places in the hands of an attorney the enforcement of all or any
part of this Lease, the collection of any rent due or to become due or recovery
of the possession of the Leased Premises, Lessee agrees to pay Lessor's costs of
collection, including reasonable attorney's fees for the services of the
attorney, whether suit is actually filed or not.
16.04 SUCCESSORS. This Lease shall be binding upon and inure to the benefit
of Lessor and Lessee and their respective heirs, personal representatives,
successors and assigns. It is hereby covenanted and agreed that should Lessor's
interest in the Leased Premises cease to exist for any reason during the term of
this Lease, then notwithstanding the happening of such event this Lease
nevertheless shall remain unimpaired and in full force and effect, and Lessee
hereunder agrees to attorn to the then owner of the Leased Premises.
16.05 RENT TAX. If applicable in the jurisdiction where the Leased Premises
are situated, Lessee shall pay and be liable for all rental, sales and use taxes
or other similar taxes, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Lessor by Lessee under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the rent,
additional rent, Operating Expenses or other charge upon which the tax is based
as set forth above.
16.06 CAPTIONS. The captions appearing in this Lease are inserted only as a
matter of convenience and in no way define, limit, construe or describe the
scope or intent of any section.
16.07 NOTICE. All rent and other payments required to be made by Lessee
shall be payable to Lessor c/o LPAML Colorado Limited Partnership, X.X. Xxx
00000, Xxxxxxx, Xxxxxxxx 00000-0000. All payments required to be made by Lessor
to Lessee shall be payable to Lessee at the address set forth in Section 1.05,
or at any other address within the United States as Lessee may specify from time
to time by written notice. Any notice or document required or permitted to be
delivered by the terms of this Lease shall be deemed to be delivered (whether or
not actually received) when
13
36
deposited in the United States Mail, postage prepaid, certified mail, return
receipt requested, or overnight, receipted, express mail service, addressed to
the parties at the respective addresses set forth in Section 1.05. [See Rider,
Paragraph 10.]
16.08 SUBMISSION OF LEASE. Submission of this Lease to lessee for signature
does not constitute a reservation of space or an option to lease. This Lease is
not effective until execution by and delivery to both Lessor and Lessee.
16.09 CORPORATE AUTHORITY. If Lessee executes this Lease as a corporation,
each of the persons executing this Lease on behalf of Lessee does hereby
personally represent and warrant that Lessee is a duly authorized and existing
corporation, that Lessee is qualified to do business in the state in which the
Leased Premises are located, that the corporation has full right and authority
to enter into this Lease, and that each person signing on behalf of the
corporation is authorized to do so. In the event any representation or warranty
is false, all persons who execute this Lease shall be liable, individually, as
Lessee.
16.10 SEVERABILITY. If any provision of this Lease or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application of such provisions to
other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
16.11 LESSOR'S LIABILITY. If Lessor shall be in default under this Lease
and, it as a consequence of such default, Lessee shall recover a money judgment
against Lessor, such judgment shall be satisfied only out of the right, title
and interest of Lessor in the buildings as the same may then be encumbered and
neither Lessor nor any person or entity comprising Lessor shall be liable for
any deficiency. In no event shall Lessee have the right to levy execution
against any property of Lessor nor any person or entity comprising Lessor other
than its interest in the building as herein expressly provided. In no event,
however, shall Lessor be deemed in default unless it fails to cure such default
within twenty (20) days of written notice or if such default cannot reasonably
be cured within twenty (20) days, then Lessor shall not be deemed in default if
it has commenced to cure and diligently prosecutes same to completion.
16.12 INDEMNITY. Lessor agrees to indemnify and hold harmless Lessee from
and against any liability or claim, whether meritorious or not, arising with
respect to any broker whose claim arises by, through or on behalf of Lessor.
Lessee agrees to indemnify and hold harmless Lessor from and against any
liability or claim, whether meritorious or not, arising with respect to any
broker whose claim arises by, through or on behalf of Lessee.
16.13 SURVIVAL. All indemnities to or for the benefit of either party as
set forth herein shall survive termination of this Lease.
16.14 BROKERS. Lessor and Lessee acknowledge that the Staubach Company has
acted as broker with regard to this transaction and Lessor shall be responsible
for paying said broker a real estate commission in accordance with an agreement
between Lessor and broker.
ARTICLE 17.00 AMENDMENT AND LIMITATION OF WARRANTIES
17.01 ENTIRE AGREEMENT. IT IS EXPRESSLY AGREED BY LESSEE, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE ENTIRE AGREEMENT OF
THE PARTIES; THAT THERE ARE, AND WERE, NO VERBAL REPRESENTATIONS, WARRANTIES,
UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR PROMISES PERTAINING TO THIS LEASE OR
TO THE EXPRESSLY MENTIONED WRITTEN EXTRINSIC DOCUMENTS NOT INCORPORATED IN
WRITING IN THIS LEASE.
14
37
17.02 AMENDMENT. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR EXTENDED
EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LESSOR AND LESSEE.
17.03 LIMITATIONS OF WARRANTIES. LESSOR AND LESSEE EXPRESSLY AGREE THAT
THERE ARE NO AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY,
HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT
OF THIS LEASE, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY
SET FORTH IN THIS LEASE.
ARTICLE 18.00 SIGNATURES
SIGNED AT Denver, Colorado this 30th day of June, 1997
LESSOR: LESSEE:
North Creek I-III L.P., MCI Systemhouse Corp.,
a Delaware limited partnership a Delaware corporation
By: LPAML Colorado Limited By: /s/ XXXXXX XXXXXX
Partnership, a Colorado limited ---------------------------------
partnership, as Agent for Lessor Its: Director, Real Estate Services
-------------------------------
By: /s/ XXXX X. XXXXXXX
----------------------------------
Its: General Partner
----------------------------------
15
38
LIST OF ATTACHMENTS
EXHIBIT A-1 LEASED PREMISES
EXHIBIT B LEGAL DESCRIPTION
EXHIBIT C WORK LETTER
EXHIBIT D PERMITTED USES
EXHIBIT E SUPPLEMENTAL AGREEMENT
EXHIBIT F RULES AND REGULATIONS
EXHIBIT G SATELLITE DISH LICENSE
1
39
EXHIBIT A-1
LEASED PREMISES
[SECOND FLOOR PLAN]
A-1
40
EXHIBIT B
LEGAL DESCRIPTION
PARCEL B:
Xxx 0, Xxxxx 0, XXXXX XXXXX SUBDIVISION, in the City of Colorado Springs,
El Paso County, Colorado, according to the plat thereof recorded in Plat
Book V-3 at Page 166
B
41
EXHIBIT C
LESSEE IMPROVEMENT WORK AGREEMENT
1. Lessee Finish Allowance
Lessor hereby grants to Lessee a Lessee Finish Allowance equal to $326,214
($9.00 per rentable square foot of the Leased Premises). The Lessee Finish
Allowance is to be used only for payment of the cost of preparing the space
plans and the final plans, including mechanical, electrical, plumbing,
engineering and structural drawings and of all other aspects necessary to
complete the final plans, and payment for carpet, paint and other improvements
set forth in the final plans; and any construction, management fee equal to 3%
of the total construction costs. Said Lessee Finish Allowance shall be credited
against the aggregate cost of Lessee Work, as hereinafter defined. Any unused
portion of the allowance, up to $1.00 per rentable square foot, may be used by
Lessee as (i) a rent credit against the first rent dollars owing under this
Lease, or (ii) up to $2.00 per rentable square foot may be applied towards
Lessee's cabling costs. If Lessee requires Lessee Work in excess of the Lessee
Finish Allowance, then Lessee agrees that it shall pay for said work in excess
of the Lessee Finish Allowance in accordance with the terms for payment of
Additional Work as more specifically set forth in Paragraph 2 hereof, including
provision for profit and overhead.
2. Lessee Work
Lessor agrees to complete the work depicted in the space plan attached
hereto as Exhibit C-1 (the "Lessee Work") in a good and workmanlike manner,
subject, however, to extensions equal to the delays suffered by Lessor and
caused by strikes, lockouts, fire or other casualty loss, acts of God,
unavailability of materials, hostile or war-like action, riot or other causes
beyond Lessor's reasonable control. If Lessee shall require any changes to the
attached plans and specifications or the Lessee Work depicted in such attached
plans and specifications ("Additional Work"), then, providing Lessor agrees to
such changes, Lessee shall pay, within thirty (30) days of the billing after
work has been completed. Lessor agrees to perform such Additional Work up to
$3.00 per rentable square foot. All costs and expenses associated with Lessor's
Additional Work shall bear interest at the rate of 2.9% per month.
3. Commencement of Rent
Lessee's obligation to pay Rent under the Lease shall not commence until
the date the Leased Premises are Ready for Occupancy; provided, however, that if
Lessor shall be delayed in rendering the Leased Premises Ready for Occupancy
beyond the Commencement Date set out in Section 1.03 of this Lease as a result
of one or more of the following:
(a) Lessee's failure to devote the time or furnish the information required
in connection with the space plan for the Lessee Work; or
(b) Lessee's failure to timely deposit the estimated costs for the
Additional Work within the time period specified in Paragraph 2 above; or
(c) Lessee's changes in the Lessee Work, in the space plan relating
thereto, or in the plans for the Additional Work (notwithstanding Lessor's
approval of any such changes); or
(d) Any other act or omission by Lessee or its agents;
then and in any such event, Lessee's obligation to commence the payment of Rent
under the Lease on the Commencement Date provided for in Section 1.03 shall not
be affected or deferred on account of such delay.
C-1
42
4. Alternate Commencement Date
If Lessor is unable to cause the Leased Premises to be Ready for Occupancy
by the Commencement Date for reasons other than those set out in subsection (a)
through (d) of Paragraph 3 above then the Commencement Date of the Lease shall
be on the first date the Leased Premises are Ready for Occupancy; provided,
however if the date the Leased Premises are Ready for Occupancy is not the first
day of a month, then the Commencement Date shall be the first day of the month
immediately following the date the Leased Premises are Ready for Occupancy. The
period between the date the Leased Premises are Ready for Occupancy and the
Commencement Date shall be deemed to be the Interim Lease Term and Lessee shall
be obligated to pay Rent for such Interim Lease Term on a pro rata basis based
on the Base Rent for the first full month of the Term and Lessee shall hold the
Leased Premises during the Interim Lease Term under all of the other terms and
conditions of this Lease. In the event the Commencement Date set out in Section
1.03 of the Lease is changed as provided for in this Paragraph 4 then (i) if the
Leased Premises are Ready for Occupancy after the Commencement Date set out in
Section 1.03 of the Lease then the Expiration Date of the Lease as provided for
in Section 1.03 of the Lease shall be extended such that beginning with the
adjusted Commencement Date the Term shall extend for the number of months set
out in Section 1.03 of the Lease, or (ii) if the Leased Premises are Ready for
Occupancy prior to the Commencement Date set out in Section 1.03 of the Lease
then the Commencement Date shall be adjusted as provided for in this Paragraph
4, however the Expiration Date shall remain as set out in Section 1.03 of the
Lease. In either such event, Lessee shall, at Lessor's request, execute a
Memorandum of Commencement Date in which the parties specify the Commencement
Date and Expiration Date of the Lease.
"Ready for Occupancy" as used herein shall mean the date on which Lessor
shall have substantially completed all its work outlined in this Work Letter.
The issuance of a Certificate of Occupancy (or its equivalent) for the Leased
Premises or a certificate from Lessor's architect or space planner certifying
substantial completion of the work shall conclusively control the date the
Leased Premises are substantially complete, the date on which the Leased
Premises are Ready for Occupancy and the date Lessee's obligation to pay Rent
commences. Lessor agrees to use its best efforts to provide Lessee with at least
fifteen (15) days prior notice of the date the Leased Premises are expected to
be Ready for Occupancy. Lessor's undertaking to provide fifteen (15) days prior
notice to Lessee shall not change, alter, or otherwise affect Lessee's
obligations under this Lease to take occupancy of the Leased Premises when the
same are Ready for Occupancy.
5. Miscellaneous
(a) Except to the extent otherwise indicated herein, the initially
capitalized terms used in this Lessee Improvement Work Agreement shall have the
meanings assigned to them in the Lease.
(b) The terms and provisions of this Lessee Improvement Work Agreement are
intended to supplement and are specifically subject to all the terms and
provisions of the Lease. In the event of conflict between the terms of this
Lessee Improvement Work Agreement and the Lease, then the provisions of the
Lease shall govern.
(c) Prior to the date the Leased Premises are Ready for Occupancy, Lessor's
contractor and Lessee shall inspect the Leased Premises and jointly complete a
"punch list" of incomplete or defective work and thereafter Lessor shall
exercise due diligence to cause such punch list items to be completed.
(d) This Lessee Improvement Work Agreement may not be amended or modified
other than by supplemental written agreement executed by authorized
representatives of the parties hereto.
(e) Lessee shall not be entitled to any credits, whether in the form of
materials or money, for unused work or materials.
C-2
43
(f) All standard Lessee Work shall be performed in accordance with Exhibit
C-1.
(g) Lessor's approval of Lessee's plans or the Lessee Work shall create no
responsibility or liability on the part of Lessor for their completeness, design
sufficiency, or compliance with all laws, rules and regulations of governmental
agencies or authorities, including but not limited to the Americans with
Disabilities Act.
LESSOR: LESSEE:
North Creek I-III L.P., MCI Systemhouse Corp.,
a Delaware limited partnership a Delaware corporation
By: LPAML Colorado Limited By: /s/ XXXXXX XXXXXX
Partnership, a Colorado limited -----------------------------
partnership, as Agent for Lessor Its: Director Real Estate Services
-----------------------------
Date:
-----------------------------
By: /s/ XXXX X. XXXXXXX
----------------------------
Its: General Partner
-----------------------------
Date: 6/30/97
-----------------------------
C-3
44
EXHIBIT D
PERMITTED USES
Lessee shall use and occupy the Leased Premises for the operation of a
telecommunications facility, engineering, education and training of Lessee's
customers and employees and in general administration functions and all
incidental and related uses thereto and all other purposes permitted under the
Building rules and regulations.
D
45
EXHIBIT E
SUPPLEMENTAL AGREEMENT
THIS SUPPLEMENTAL AGREEMENT is attached to and made a part of the Lease
dated as of the __ day of _________, ____, by and between ____________________
_____________________, a ____________ and ______________, a ______________, as
Lessee. By this Supplemental Agreement dated as of the ____ day of
_______________, ____, the parties to the lease dated _______________ (the
"Lease") agree as follows:
1. All defined terms in the Lease are incorporated herein by reference.
2. Any Lessee Work required to be constructed and finished by Lessor in
accordance with the terms of the Lease for the Leased Premises were completed by
Lessor on ___________, 19__, subject to the completion of Punch List Items
identified on the attachment hereto, if any.
3. Any work to be performed by Lessor has been completed. The temporary or
permanent certificate of occupancy for the Leased Premises was issued on
___________________.
4. The Expiration Date pursuant to the terms of the Lease is ___________.
5. In accordance with the provisions of the Lease, Lessee's obligation to
pay Base Rent and Additional Rent shall commence on the date set forth in
Paragraph 1.03 of the Lease (which payment shall be prorated as set forth in
the Lease if the date set forth in Paragraph 1.03 is any day other than the
first day of a month).
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Agreement to be executed the day and year first above written.
---------------------------, ----------------------------------,
a a
-------------------------- ---------------------------------
By: By:
------------------------- --------------------------------
Title:
---------------------- ----------------------------------,
("Lessee") a
---------------------------------
E
46
EXHIBIT F
RULES AND REGULATIONS
1. Lessor agrees to furnish Lessee their required number of keys without
charge upon occupancy. Additional keys will be furnished at a nominal
charge. Lessee shall not change locks or install additional locks on doors
without prior written consent of Lessor. Lessee shall not make or cause to
be made duplicates of keys procured from Lessor. All keys to Leased
Premises shall be surrendered to Lessor upon termination of this Lease.
2. Lessee will refer all contractors, contractor's representatives and
installation technicians rendering any service on or to the Leased Premises
for Lessee to Lessor for Lessor's approval (which shall not be unreasonably
withheld) before performance of any contractual service. Lessee's
contractors and installation technicians shall comply with Lessor's rules
and regulations pertaining to construction and installation. This provision
shall apply to all work performed on or about the Leased Premises or
project, including installation of telephones, telegraph equipment,
electrical devices and attachments and installations of any nature
affecting floors, walls, woodwork, trim, windows, ceilings and equipment or
any other physical portion of the Leased Premises or project.
3. Lessee shall not at any time occupy any part of the Leased Premises or
project as sleeping or lodging quarters.
4. Lessee shall not place, install or operate on the Leased Premises or in any
part of the building any engine, stove or machinery, or conduct mechanical
operations or xxxx thereon or therein, or place or use in or about the
Leased Premises or project any explosives, gasoline, kerosene, oil, acids,
caustics, or any flammable, explosive or hazardous material without written
consent of Lessor. Nothing herein shall prohibit the use of a microwave
oven.
5. Lessor will not be responsible for lost or stolen personal property,
equipment, money or jewelry from the Leased Premises or the project
regardless of whether such loss occurs when the area is locked against
entry or not.
6. No dogs, cats, fowl, or other animals shall be brought into or kept in or
about the Leased Premises or project, unless necessary to accompany a
handicapped or disabled individual into and throughout the premises or
project.
7. Employees of Lessor shall not receive or carry messages for or to any
Lessee or other person or contract with or render free or paid services to
any Lessee or to any of Lessee's agents, employees or invitees.
8. None of the parking, plaza, recreation or lawn areas, entries, passages,
doors, elevators, hallways or stairways, shall be blocked or obstructed or
any rubbish, litter, trash, or material of any nature placed, emptied or
thrown into these areas or such area used by Lessee's agents, employees, or
invitees at any time for purposes inconsistent with their designation by
Lessor.
9. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed, and any damage
resulting to them from misuse or by the defacing or injury of any part of
the building shall be borne by the person who shall occasion it. No person
shall waste water by interfering with the faucets or otherwise.
10. No person shall disturb occupants of the building by the use of any radios,
record players, tape recorders, musical instruments, the making of unseemly
noises or any unreasonable use.
11. Nothing shall be thrown out of the windows of the building or down the
stairways or other passages.
F-1
47
12. Lessee and its employees, agents and invitees shall park their vehicles
only in those parking areas designated by Lessor. Lessee, if requested by
Lessor, shall furnish Lessor with state automobile license numbers of
Lessee's vehicles and its employees' vehicles within five days after such
request. Lessee shall not leave any vehicle in a state of disrepair
(including without limitation, flat tires) on the Leased Premises or
project. If Lessee or its employees, agents or invitees park their vehicles
in area other than the designated parking areas or leave any vehicle in a
state of disrepair, Lessor, after giving written notice to Lessee of such
violation, shall have the right to remove such vehicles at Lessee's
expense.
13. Parking in a parking garage or area shall be in compliance with all parking
rules and regulations including any sticker or other identification system
established by Lessor. Failure to observe the rules and regulations shall
terminate Lessee's right to use the parking garage or area and subject the
vehicle in violation of the parking rules and regulations to removal and
impoundment. No termination of parking privileges or removal of impoundment
of a vehicle shall create any liability on Lessor or be deemed to interfere
with Lessee's right to possession of its Leased Premises. Vehicles must be
parked entirely within the stall lines and all directional signs, arrows
and posted speed limits must be observed. Parking is prohibited in areas
not striped for parking, in aisles, where "No Parking" signs are posted, on
ramps, in cross hatched areas, and in other areas as may be designated by
Lessor. Parking stickers or other forms of identification supplied by
Lessor shall remain the property of Lessor and not the property of Lessee
and are not transferable. Every person is required to park and lock his
vehicle. All responsibility for damage to vehicles or persons is assumed by
the owner of the vehicle or its driver.
14. Lessee shall be responsible for obtaining, installing and maintaining fire
extinguishers in the Leased Premises in order to comply with Colorado
Building Code (one each for every 3,000 square feet of leased space).
15. Movement in or out of the building of furniture or office supplies and
equipment, or dispatch or receipt by Lessee of any merchandise or materials
which requires use of elevators or stairways, or movement through the
building entrances or lobby, shall be restricted to hours designated by
Lessor. All such movement shall be under supervision of Lessor and carried
out in the manner agreed between Lessee and Lessor by prearrangement before
performance. Such prearrangement will include determination by Lessor of
time, method, and routing of movement and limitations imposed by safety or
other concerns which may prohibit any article, equipment or any other item
from being brought into the building. Lessee assumes, and shall indemnify
Lessor against, all risks and claims of damage to persons and properties
arising in connection with any said movement.
16. Lessor shall not be liable for any damages from the stoppage of elevators
for necessary or desirable repairs or improvements or delays of any sort or
duration in connection with the elevator service.
17. Lessee shall not lay floor covering within the Leased Premises without
written approval of the Lessor, which shall not be unreasonably withheld.
The use of cement or other similar adhesive materials not easily removed
with water is expressly prohibited.
18. Lessee agrees to cooperate and assist Lessor in the prevention of
canvassing, soliciting and peddling within the building or project.
19. Lessor reserves the right to exclude from the building or project, between
the hours of 6:00 p.m. and 7:00 a.m. on weekdays and at all hours on
Saturday, Sunday and legal holidays, all persons who are not known to the
building or project security personnel and who do not present a pass to the
building signed by the Lessee. Each Lessee shall be responsible for all
persons for whom he supplies a pass.
F-2
48
20. It is Lessor's desire to maintain in the building or project the highest
standard of dignity and good taste consistent with comfort and convenience
for Lessees. Any action or condition not meeting this high standard should
be reported directly to Lessor. Your cooperation will be mutually
beneficial and sincerely appreciated. Lessor reserves the right to make
such other and further reasonable rules and regulations as in its judgment
may from time to time be necessary, for the safety, care and cleanliness of
the Leased Premises and for the preservation of good order therein.
F-3
49
EXHIBIT G
SATELLITE DISH LICENSE
(FOR RECEIVING ONLY)
THIS SATELLITE DISH LICENSE is made and entered into this _______, day of
_______, 1997 by and between North Creek I-III L.P., a Delaware limited
partnership ("Lessor") and MCI Systemhouse Corp., a Delaware corporation
("Lessee").
W I T N E S S E T H:
WHEREAS, Lessor and Lessee have entered into a Lease dated _______________
(the "Lease") for premises located in that certain building known as North Creek
II located in Colorado Springs, State of Colorado (the "Building"); and
WHEREAS, Lessee is desirous of locating a satellite dish on the roof of the
Building; and
WHEREAS, Lessor is willing to permit same only upon the following terms and
conditions.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto agree as follows:
1. Grant of License. Provided Lessee provides Lessor with detailed
information regarding the satellite dish for Lessor's prior review and approval
(which may be given or withheld by Lessor in its sole discretion), Lessor grants
to Lessee a non-exclusive license for the term of the Lease, said term being
more specifically described in Section 3 below, for the purpose of installing,
maintaining and operating a satellite dish not to exceed two (2) meters (the
"Satellite") on a portion of the roof located on the Building as shown on
Appendix __ attached hereto (the "Roof Space"). The actual location of the Roof
Space shall be in Lessor's reasonable discretion. The grant of this license is
for the sole benefit of and use by Lessee and the Satellite's use shall be
personal to and may not be assigned, sublet or transferred in whole or in part
except pursuant to an assignment or sublease according to the Lease to be used
solely by such sublessee or assignee for its own purposes. No third party may
use the Satellite nor may Lessee receive any fees or other payment for the use
of such Satellite. Lessor makes no representation or warranty as to the fitness
for any purpose of the Roof Space and shall have no liability of any kind or
nature directly or indirectly arising from or related to the Satellite and
Related Equipment as hereinafter defined.
2. Installation. Lessee shall be permitted to install the one (1)
Satellite. All installation expenses shall be at Lessee's sole cost and expense.
Installation expenses shall include, but not be limited to, all of the
incremental costs related to repairing or replacing the roof of the Building in
conjunction with such installation and the cost of installation of a walkway
providing access to the Satellite (the "Walkway"). Prior to commencing the
installation of the Satellite and any related equipment, conduits, cables and
materials located on the Roof Space or in other parts of the Building
(collectively, the "Related Equipment"), Lessee shall submit plans and
specifications regarding installation of the Satellite and any Related Equipment
to Lessor for review and reasonable approval, which approval shall not be
unreasonably withheld. Lessee shall have a reasonable right of access to the
chases, telephone and electrical closets located in the Building for purposes of
installing, repairing and maintaining the Related Equipment, provided, however,
such access shall be subject to the reasonable approval of Lessor, which
approval shall not be unreasonably withheld. The Related Equipment to be
installed in the telephone and electrical closets shall consist of
_________________________ and shall not occupy more than ___________ cubic
inches, provided that such space is available within the Building prior to the
execution of this License. The plans and specifications shall include load
factors, electrical platforms leading to the Satellite and any other
specifications as Lessor may require. Lessee agrees that Lessor may require
certain aesthetic specifications concerning the
G-1
50
appearance of the Satellite and any Related Equipment, which specifications
shall be in the reasonable discretion of Lessor.
3. Term. Lessee's right to use the Roof Space shall commence on the date on
which Lessee commences installation of the Satellite or any of the Related
Equipment, and shall terminate upon the termination of the Lease (the "Term") as
such Lease may be extended. Upon the termination hereof, the Satellite, the
Walkway and the Related Equipment shall be removed by Lessee at Lessee's
expense, and Lessee shall repair any damage to the building and roof caused by
the removal and restore the roof.
4. License Fee.
Intentionally Deleted
5. Reroofing and Repair. Lessee acknowledges that Lessor may be repairing
or installing a new roof on the Building during the term of this License.
Lessor, the roofing contractor or consultant and Lessee shall coordinate the
repair and/or reroofing of the Roof and Lessee shall pay in advance on demand
all increases in costs of repair or reroofing arising from or related to the
Satellite, the Walkways and the Related Equipment. Furthermore, to the extent
that the Satellite, Walkways or any Related Equipment need to be dismantled,
relocated, repaired or replaced in conjunction with such reroofing or repair,
all costs and expenses shall be borne by Lessee, and Lessor shall have no
liability in connection therewith, including, without limitation, any
interruption in service.
6. Permits. Prior to commencing the installation of the Satellite, Walkways
and/or Related Equipment, Lessee shall, at its own cost and expense, obtain each
and every permit including building permits and approvals of any applicable
architectural control committee for same and deliver same to Lessor. Lessor
makes no representations or warranties with respect to zoning or any other
approvals. If Lessee cannot obtain such necessary permits or such permits affect
the Building or the Roof Space in any way by means of additional requirements,
then this License shall be deemed null and void and of no further force and
effect, unless Lessor in writing waives the conditions set forth herein.
7. Repair and Maintenance of Satellite and Related Equipment. Lessee agrees
that it shall keep and maintain the Satellite, Walkways and the Related
Equipment in good condition and repair, at Lessee's sole cost and expense, in
such a manner so as not to conflict or interfere with the use of other
facilities installed in the Building and consistent with first-class office
buildings in Colorado Springs, Colorado. Furthermore, Lessee agrees that it
shall not damage nor shall it permit any damage to the roof or the Roof Space or
the Building in conjunction with the Satellite and the Related Equipment. Lessee
agrees that the Satellite and the Related Equipment shall be of such types and
frequencies that will not cause interference with other antennas or dishes in
the North Creek Complex in operation at the time of Lessee's installation. In
the event the Satellite or the Related Equipment cause such interference, Lessee
shall immediately take all steps necessary to correct and eliminate the
interference. If Lessee cannot eliminate the interference within a reasonable
time of notification thereof, it shall remove the Satellite and Related
Equipment causing the interference. Lessee shall use its best efforts to notify
any telephone and/or electrical service persons of the location of the Related
Equipment in the Building in order to minimize any interference with such
equipment.
8. Repair and Maintenance of the Roof. Lessee hereby acknowledges and
agrees that Lessor, its agents, employees, contractors or anyone else permitted
by Lessor to be on the roof of the Building may from time to time inspect,
repair, replace or maintain the roof or any part or parts thereof, or install
additional improvements or fixtures on the said roof. Lessee shall maintain the
Walkway at it sole expense, except Lessor shall be liable for the cost of
repairs or maintenance to the Satellite, Walkway and Related Equipment caused by
Lessor's misconduct or gross negligence.
G-2
51
9. Compliance with Law and Warranties. Lessee, at Lessee's sole cost and
expense, agrees to install, keep, maintain, operate and remove the Satellite,
Walkways and the Related Equipment in accordance with all applicable laws,
rules, regulations, statutes, ordinances or other requirements of any kind or
nature of any governmental or quasi-governmental authority or the requirements
of Lessor's insurance underwriters and in compliance with any roofing
warranties.
10. Alterations and Mechanic's Liens. Lessee shall not without the prior
written consent of Lessor, which consent shall not be unreasonably withheld,
make any alterations, improvements or additions to the Satellite, the Related
Equipment or any other materials related thereto. Lessee agrees that it shall
not alter, add to or move the Satellite, the Walkway or Related Equipment
without Lessor's consent, which consent shall not be unreasonably withheld by
Lessor. In the event that Lessee desires to perform any alterations,
improvements, additions, repairs or other work on the Satellite, Walkways or the
Related Equipment, Lessee shall first submit to Lessor a written request
therefor outlining the repairs, alterations, or other matters which Lessee is
requesting Lessor's consent. The work necessary to perform any of the repairs or
alterations under this section shall be done by employees or contractors
approved in advance by Lessee subject to written contracts containing all
conditions Lessor may reasonably impose, including insurance provisions. Lessee
agrees that it shall defend and hold Lessor and the Building harmless from all
costs, damages, liens, for labor, services or materials related to any work done
on the additions by Lessee.
11. Damage by Lessee. Subject to the waiver of subrogation as set forth in
Section 13.03 of the Lease, which is incorporated herein by reference, if the
Building, Building Complex, elevators, boilers, engines, pipes, electrical
apparatus, or any other elements of the Building or the Building roof or any
portion thereof, become damaged or destroyed through any act of Lessee, its
servants, agents, employees, contractors or anyone permitted by Lessee to be
working in the Building or on the Satellite, Walkways or the Related Equipment,
whether or not such act was a result of the negligence or willful misconduct of
Lessee or any such party, then the cost of any repairs, replacements,
alterations and all damages incurred by Lessor shall be borne by Lessee who
shall, within thirty (30) days of demand, pay the same to Lessor.
12. Lessee's Insurance. Lessee shall with respect solely to the Satellite,
during the entire term of this License, at its sole cost and expense, obtain,
maintain, and keep in full force and effect insurance with coverages, amounts,
with companies and in form reasonably acceptable to Lessor naming Lessor and
Mortgagees of Lessor as insureds thereunder. If the cost of Lessor's insurance
increases as a result directly or indirectly of this License, the Satellite or
the Related Equipment then Lessee shall pay the costs of such increases directly
to Lessor upon demand.
13. Attorneys' Fees. In the event of any litigation or arbitration between
Lessor and Lessee to enforce any provision of this License or any right of
either party hereto, the unsuccessful party to such litigation or arbitration
shall pay to the successful party all costs and expenses, including reasonable
attorneys' fees, incurred therein.
14. Indemnification; Release. From and after the Effective Date, Lessee
hereby agrees to indemnify, defend, and save Lessor harmless from and against
all claims, demands, liability, loss, cost, damage, or expense, including
attorneys' fees, incurred by or asserted against Lessor as a result of or
arising out of this License including the installation, use or existence of the
Satellite, Walkways and Related Equipment by Lessee. This indemnity shall
survive expiration or termination of this License and/or the Lease for a period
of time not to exceed one (1) year. Lessee hereby irrevocably releases Lessor,
its agents, employees, invitees or contractors, from any claims, damages,
expenses or costs of any kind or nature, whether known or unknown, arising from
or related to this License or any act or the negligence of Lessor, its
employees, agents, invitees or contractors, excepting, however, any costs,
claims or damages relating to the gross negligence or willful acts of Lessor, it
being understood and agreed that the Satellite and Related Equipment are at the
sole risk, cost and expense of Lessee.
G-3
52
15. Default by Lessee. Each one of the following events is herein referred
to as an "event of default":
(1) Lessee shall fail to make due and punctual payment of any amounts
payable hereunder, and such failure shall continue for thirty (30) days after
receipt of written notice from Lessor;
(2) Lessee shall default on any term or condition to be performed by it
under the Lease and such default is not cured within the applicable cure period,
if any;
(3) This License or the estate of Lessee hereunder shall be transferred
to or shall pass to or devolve upon any other person or party except in the
manner set forth in Section 12;
(4) Lessee shall fail to perform any of the other agreements, terms,
covenants or conditions hereof on Lessee's part to be performed, and such
non-performance shall continue for a period of thirty (30) days after written
notice thereof by Lessor to Lessee, or if such performance cannot be reasonably
had within such thirty (30) day period, Lessee shall not in good faith have
commenced such performance within such thirty (30) day period and shall not
thereafter diligently proceed to completion;
16. Remedies of Lessor. If any one or more events of default shall happen,
then Lessor shall have the right, at Lessor's election, to terminate this
License by written notice to Lessee, and to pursue any other remedy provided in
law or in equity for damages incurred by Lessor.
17. Notice. Any notice from Lessor to Lessee or from Lessee to Lessor shall
be in writing and shall be delivered in accordance with the terms of the Lease.
18. Satellite. Lessee hereby agrees that its Satellite may not interfere
with any antenna or dish now or hereafter placed upon the roof by Landlord or
another tenant, nor may such antenna or dish cause any interference with any
tenant's use of their Premises and equipment therein nor may the antenna or dish
cause or pose any possible health risk of any kind or nature.
IN WITNESS WHEREOF, ____________________ and ________________ have executed
this License the day and year first above written.
LESSOR: LESSEE:
North Creek I-III L.P., MCI Systemhouse Corp.,
a Delaware limited partnership a Delaware corporation
By: LPAML Colorado Limited By:
Partnership, a Colorado limited -------------------------------
partnership, as Agent for Lessor Its:
------------------------------
Date:
By: -----------------------------
-------------------------------
Its:
------------------------------
Date:
-----------------------------
G-4
53
RIDER TO LEASE DATED AS OF , 0000
XXXXXXX XXXXX XXXXX I-III L.P., AS LESSOR
AND MCI SYSTEMHOUSE CORP., AS LESSEE
IN THE EVENT OF ANY INCONSISTENCY BETWEEN THE PRINTED PORTIONS OF THE LEASE
AND THIS RIDER, THE LANGUAGE IN THIS RIDER SHALL PREVAIL.
Notwithstanding anything contained in this Lease to the contrary, whenever
Lessor's consent or approval is required hereunder, it shall not be unreasonably
withheld, conditioned or delayed.
1. RIDER TO SECTION 2.02 - OPERATING EXPENSE STATEMENT
Notwithstanding any provision contained in this Lease to the contrary,
after the end of each calendar year, including the year in which the Term
expires, Lessor shall give Lessee a detailed statement, prepared in accordance
with generally accepted accounting principles (the "STATEMENT"), setting forth
the actual taxes and actual Operating Expenses for that calendar year, the
estimated Operating Expenses actually paid by Lessee for that calendar year, and
the amount, if any, due to Lessor from Lessee for that calendar year. If the
Lessee's actual pro rata share of the Operating Expenses exceeds the Lessee's
pro rata share of the estimated Operating Expenses for that year, Lessee shall
pay to Lessor the excess amount due within thirty (30) days after receiving such
Statement. If the Lessee's pro rata share of the actual Operating Expenses is
less than the Lessee's estimated Operating Expenses paid for that year, Lessor
shall pay to Lessee the difference within thirty (30) days after furnishing
Lessee with such Statement. Lessor shall use its reasonable efforts to deliver
to Lessee notice of any actual Operating Expense adjustment within one hundred
eighty (180) days after the closing of any calendar year.
2. RIDER TO SECTION 2.03 - EXCLUSIONS FROM OPERATING EXPENSES
Notwithstanding any provision contained in this Lease to the contrary,
Operating Expenses shall not include the following items: (i) any cost
associated with asbestos containing materials in the Building, including, but
not limited to, the cost of monitoring, encapsulating, or abating of any
asbestos containing materials from the Building; (ii) the cost of correcting
structural defects in the Building or Leased Premises; (iii) the cost of the
initial balancing of the HVAC system in the Leased Premises; (iv) the cost of
any items for which Lessor is actually reimbursed by insurance, or any lessee;
(v) corporate taxes, capital gains taxes, taxes on rents or gross receipts, and
income or estate taxes personally owed by Lessor; and (vi) any charge for
depreciation of the building or equipment.
In no event shall Lessor recover from Lessee more than an amount equal to
Lessee's proportionate share of 100% of Operating Expenses.
3. RIDER TO SECTION 3.03 - RULES & REGULATIONS
Lessor shall use reasonable efforts to enforce the rules and regulations
against Lessee in a manner which is not materially adverse and inconsistent (as
compared to other lessees which violate rules and regulations).
4. RIDER TO SECTION 4.01 - BUILDING SERVICES
To the extent Lessee installs supplemental HVAC (which installation shall
be at Lessee's sole cost and expense and subject to the provisions of this
Lease, including all exhibits hereto), Lessee shall keep and maintain such
supplemental HVAC at Lessee's sole cost and expense and shall pay all costs
associated therewith. Lessor may at Lessee's cost submeter the supplemental HVAC
and Lessee shall pay the actual costs of the utilities within thirty (30) days
of receipt of a demand therefor. Upon termination or earlier expiration of the
Lease term, Lessee shall at Lessor's option either surrender the supplemental
HVAC, in good condition and repair, or at Lessee's cost remove the supplemental
HVAC and repair any damage caused by the removal.
54
or assignment which violates this provision or purports directly or indirectly
to change the terms of this Lease shall be void.
8. RIDER TO 9.04 - NON-DISTURBANCE
At Lessee's request and expense, Lessor agrees to use its reasonable
efforts to obtain a non-disturbance agreement from any future mortgagee of the
Real Property and/or the Building, however, such efforts shall not require
Lessor to expend any costs or expenses, including attorneys' fees, in doing so
unless such costs and expenses are paid by Lessee.
9. RIDER TO 11.01 - DEFAULT BY LESSEE
Lessee shall be deemed in default of this Lease if it (i) vacates or
abandons the Leased Premises in whole or in material part thereof, (ii) fails to
give thirty (30) days prior notice to Lessor of its intention to vacate or
abandon all or any material part thereof, or (iii) fails to keep and/or perform
all other covenants under the Lease including payment of rent or maintenance of
insurance.
10. RIDER TO SECTION 16.07 - NOTICES
Notwithstanding any provision contained in this Lease to the contrary,
until further notice is sent in accordance with the terms of this Lease, all
statements, notices or communications to be given under the terms of this Lease
shall be in writing and delivered by hand against receipt or sent by certified
mail, registered mail or Express Mail Service, with postage prepaid and return
receipt requested, or other nationally utilized overnight delivery service, and
addressed as follows:
IF TO LESSOR:
North Creek I-III, X.X.
XxXxxxx Advisors Limited
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
WITH A COPY TO:
LPAML Colorado Limited Partnership
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: General Partner
Facsimile: (000) 000-0000
IF TO LESSEE:
MCI Telecommunications Corporation
c/o MCI Systemhouse Corp.
000 X. 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Manager, Dept. 0950/081
Facsimile: 000-000-0000
WITH A COPY TO:
MCI Telecommunications Corporation
Law and Public Policy
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Real Estate Administrator
Facsimile: (000) 000-0000
3
55
ADDITIONAL PROVISIONS TO THE LEASE:
14. EXTENSION OPTIONS
Notwithstanding any provisions contained in this Lease to the contrary, in
addition to the initial term hereof, Lessee shall have the right to extend the
term of this Lease for an additional term of five (5) years (the "EXTENSION
PERIOD") commencing on the date immediately following the expiration date and
ending on the date immediately preceding the sixth (6) anniversary of the
commencement date of the Extension Period. If Lessee elects to exercise such
option, it shall do so by giving notice of such election to Lessor no sooner
than one (1) year and no later than six (6) months before the beginning of
the Extension Period. Such Extension Period shall be on the same terms and
conditions as are set forth herein except for rent which shall be 100% of the
then current Fair Market Rent ("FMR") as hereinafter defined. The word "TERM" as
used in this Lease and this Rider shall include the above mentioned Extension
Period.
If Lessee gives notice in accordance with the provisions of this Paragraph,
and the parties are unable to agree to the Fair Market Rent within thirty (30)
days after receipt of the notice from Lessor setting forth the Base Rent then
Lessee at its sole option and as its sole right or remedy may either (i)
initiate the appraisal process provided for herein by giving notice to that
effect to the Lessor, or (ii) revoke its exercise of its option to extend. If
Lessee initiates an appraisal then the Lessee shall specify in such notice the
name and address of the Appraiser designated on its behalf. Lessor shall have
ten (10) business days from receipt of such notice of appraisal to appoint its
own Appraiser and notify Lessee thereof. All Appraisers designated shall be real
estate brokers licensed in the State of Colorado with at least ten (10) years
experience in office building leasing in Colorado Springs, Colorado. The third
appraiser must be impartial and must not have been directly engaged by Lessor or
Lessee for two and one half years preceding the appraisal process. If the Lessor
fails to notify the Lessee of the appointment of its Appraiser within the time
above specified, then the appointment of the second Appraiser shall be made in
the same manner as hereinafter provided for the appointment of a third Appraiser
in a case where the two Appraisers appointed hereunder and the parties are
unable to agree upon such appointment. The two Appraisers so chosen shall meet
within ten (10) days after the second Appraiser is appointed, and if the two
Appraisers shall not agree, they shall together appoint a third Appraiser. If
the two Appraisers are unable to agree upon such appointment within thirty (30)
days after the appointment of the second Appraiser, then either party, on behalf
of both and no notice to the other, may apply for the appointment of a third
Appraiser to the District Court Judge for El Paso County.
The majority of the Appraisers shall determine the Fair Market Rent for the
Leased Premises and render a written report of their determination to both
Lessor and Lessee within thirty (30) days of the appointment of the second
Appraiser or thirty (30) days of the appointment of the third Appraiser, if such
third Appraiser is appointed pursuant to the provisions hereof, and
determination of the Fair Market Rent by the majority of the Appraisers shall be
binding and conclusive on both Lessor and Lessee.
Each party shall pay the fees and expenses of the one of the two original
Appraisers appointed by or for such party, and the fees and expenses of the
third Appraiser and all other expenses (not including the attorneys' fees,
witness fees and similar expenses of the parties, which shall be borne
separately by each of the parties) of the appraisal process shall be borne by
the parties equally.
In the event Lessor or Lessee initiates the appraisal process and as of the
commencement date of the Extension Period the amount of the Fair Market Rent has
not been determined, Lessee shall pay the base rent payable by Lessee hereunder
as of the Expiration Date of the Initial Term and when such determination has
been made, it shall be retroactive as of the commencement date of the Extension
Period and any deficiency or overpayment shall be paid by Lessee to Lessor, or
if applicable Lessor to Lessee, within thirty (30) days after the date of such
determination.
4
56
Lessee's occupancy of the Leased Premises during the Extension Period shall
be on the same terms and conditions as are in effect immediately prior to the
expiration date of the initial term of this Lease, provided, however, (i) base
rent shall be as determined herein; (ii) Lessee shall have no further right to
any allowances, tenant finish, renewals or monetary concessions, if any,
included in Base Rent.
If Lessee does not send notice pursuant to the provisions hereof, the
option to extend shall be of no further force or effect and shall be deemed
deleted from this Lease. Time shall be of the essence as to Lessee's delivery of
notice.
If this Lease is extended, then Lessor or Lessee can request the other
party hereto to execute a supplemental agreement setting forth the exercise of
Lessee's right to extend the term of this Lease, the last day of the Extension
Period, and the base rent for the respective Extension Period.
For purposes hereof, Fair Market Rent shall mean the base rent for a
reasonably comparable renewal term of a comparable size lease in El Paso County,
Colorado, for a building of similar size, age, condition and amenities.
15. QUIET ENJOYMENT
Notwithstanding any provision contained in this Lease to the contrary,
Lessor covenants and agrees with Lessee that upon Lessee's paying the rent and
any additional rent and observing and performing all of the terms, covenants and
conditions on Lessee's part to be observed and performed, Lessee may peaceably
and quietly enjoy from claims of parties claiming by or through Lessor (1) the
Leased Premises hereby demised, and (2) such other rights as Lessee is granted
under this Lease subject to the terms of the Lease.
16. AUTHORITY TO EXECUTE
Notwithstanding any provision contained in this Lease to the contrary, the
parties hereto represent and warrant that each has the authority to enter into
this Lease and that the signatories hereto are authorized representatives of
Lessor and Lessee respectively.
17. PARKING
Provided Lessee is not in default and subject to casualty, condemnation and
applicable laws, Lessee shall at all times during the term of this Lease, at no
additional cost to Lessee, including any extensions or renewals thereof, have up
to 3 parking spaces for each 1000 square feet of the Leased Premises.
18. CONNECTIVITY
Lessor hereby grants to Lessee the right, at its sole cost and expense, to
install two (2) six (6) inch conduits between the North Creek II Building and
the North Creek III Building for the placement of fiber optic risers and cables
between the respective Leased Premises of Lessee, along with accompanying access
to existing chases and other building facilities in order to install cables
measuring 2-2 1/2 inches in diameter. Lessee shall submit all plans and
specifications for installation of its conduits to Lessor for Lessor approval
prior to beginning any construction, which approval shall not be unreasonably
withheld or delayed. Lessee shall at its sole cost and expense keep, maintain
and repair the conduits in good condition and repair. The conduit is subject to
existing easements, and any applicable laws.
In addition, upon the execution of the attached Satellite Dish License
Agreement (Exhibit G), Lessor hereby grants to Lessee the right to install one
(1) receiving only satellite dish on the roof of the Building, along with
accompanying access to existing chases and other building facilities in order to
install cables measuring approximately 2-2 1/2 inches in diameter to the
satellite dish. Lessee shall submit all plans and specifications for
installation of the satellite dish and accompanying cables to Lessor for Lessor
approval prior to beginning any construction, which approval shall not be
5
57
unreasonably withheld or delayed. Upon termination of Lessee's right to use such
conduit, Lessee shall remove any of its cabling and fiber optics, clean the
conduit and surrender the conduit to Lessor, which shall remain the property of
Lessor.
19. COLLOCATION OF EQUIPMENT
Lessor hereby grants to Lessee the right to locate equipment owned by
Lessee's customers upon the Leased Premises; provided, however, that:
(i) the placement of such equipment upon the Leased Premises will not
create in the third party customer a possessory interest in the Leased
Premises;
(ii) all equipment placed upon the Leased Premises by a third party customer
shall remain the personal property of the third party customer;
provided prior written notice thereof is given to Lessor, the third
party customer releases Lessor from any and all claims arising from the
presence of the equipment in on or about the Leased Premises, and the
third party customer agrees to remove the equipment within one (1) day
of receipt of notice, and repair any damage if the Lessee's rights to
possession have been terminated.
(iii) Lessee shall indemnify and hold Lessor harmless from any and all
damages, liabilities and other claims arising from the existence of the
third party customer's equipment upon the Leased Premises in accordance
with Section 7.03 of this Lease during the term of this Lease and any
extensions thereof.
(iv) in the event Lessor deems the Lessee's placement of such equipment upon
the Leased Premises does create in the third party customer a
possessory right in the Leased Premises, Lessee agrees to execute a
sublease agreement with Lessor covering the space utilized by Lessee's
customer's equipment within the Leased Premises.
(v) all costs and expenses by Lessor arising from or relating to such
equipment shall be borne by Lessee and payable upon demand including
reasonable attorneys fees and costs.
(vi) the existence or placement of the equipment in on or about the Leased
Premises shall not violate this Lease including the rules and
regulations, and any insurance requirements.
LESSOR: LESSEE:
North Creek I-III L.P., MCI Systemhouse Corp.,
a Delaware limited partnership a Delaware corporation
By: LPAML Colorado Limited By: /s/ XXXXXX XXXXXX
Partnership, a Colorado limited ----------------------------------
partnership, as Agent for Lessor Its: Director, Real Estate Services
-----------------------------------
Date:
----------------------------------
By: /s/ XXXX X. XXXXXXX
----------------------------------
Its: General Partner
-----------------------------------
Date: 6/30/97
----------------------------------
6
58
EXHIBIT B
[SECOND FLOOR PLAN]
A-1
59
5. RIDER TO SECTION 6.02 - LESSEE IMPROVEMENTS
Notwithstanding the provisions of Section 6.02, Lessor agrees to not
unreasonably withhold consent to alterations within the Leased Premises which do
not affect either the structure of the building (including the roof) or the
building systems, which systems include without limitation electrical, plumbing
and HVAC. Lessee may install vending machines in the Leased Premises for
exclusive use of Lessee's employees and Lessee shall be responsible for the cost
of any additional maintenance or utilities required for such machines. Upon the
prior written approval of Lessor, Lessee may retain its own licensed contractor
for all work within the Leased Premises, provided that such contractor meets all
reasonable insurance requirements of Lessor and such contractor would not
violate or invalidate any outstanding warranties for work.
6. RIDER TO SECTION 6.03 - MECHANICS LIEN
Notwithstanding any provision contained in this Lease to the contrary,
Lessee shall have a period of thirty (30) days from and after Lessee's receipt
of notice of the filing of any such mechanic's or materialmen's lien within
which to post a bond or to cause such lien to be released of record before
Lessor may exercise its rights under this section.
7. RIDER TO SECTION 9.02 - ASSIGNMENT
Notwithstanding anything to the contrary contained hereinabove, Lessee
shall have the right, without obtaining Lessor's prior written consent, to
assign or sublease all or any portion of the Leased Premises to the following
parties on the following conditions:
a. Any subsidiary or affiliate of Lessee, provided Lessee owns a
substantial interest in such affiliate or subsidiary;
b. Any parent corporation of Lessee;
c. Any subsidiary or affiliate of Lessee's parent corporation if such
parent owns a substantial interest in such subsidiary or affiliate; or
d. Any corporation into which Lessee may be merged or consolidated or
which purchases all or substantially all of the assets or stock of Lessee;
provided that the resulting corporation has as net worth at least equal to
Lessee's net worth as of the date hereof;
and provided that:
(1) Lessee continues to remain primarily liable on its obligations set
forth herein;
(2) Any such subtenant and/or assignee shall assume and be bound by
all obligations of Lessee for payment of all amounts of rental and other
sums and the performance of all covenants required by Lessee pursuant to
this Lease; and
(3) Any such subtenant and/or assignee intends to operate the Leased
Premises in accordance with the usage restrictions of this Lease and under
the same name as Lessee.
Not less than thirty (30) days subsequent to the effective date of such
transaction, Lessee shall provide Lessor with copies of the documents evidencing
such transaction and such evidence as Lessor may reasonably require to establish
that such transaction falls within the terms and provisions of this
subparagraph. All subletting and assignments shall be on forms approved by
Lessor in advance. If Lessor's then standard subletting or assignment form is
not utilized then Lessee shall pay Lessor's reasonable costs to have such
sublease or assignment forms reviewed. Any subletting
2
60
CMD REALTY INVESTMENT FUND III, L.P.
c/o CMD REALTY INVESTORS, INC.
000 XXXX XXXXXX XXXXXX, XXXXX 0000
XXXXXXX, XXXXXXXX 00000
07/16/98
VIA AIRBORNE EXPRESS
MCI Telecommunications Corporation
Law and Public Policy
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Re: Sublease Agreement dated June 30, 1998
("Sublease") between MCI SYSTEMHOUSE CORP.,
a Delaware corporation ("SUBLESSOR") and
CHANNELPOINT, INC., a Delaware corporation
("SUBLESSEE") concerning certain premises
("PREMISES") commonly known as Suite 200 in
North Creek II, 0000 Xxxx Xxxxxxx Xxxxxxxxx,
Xxxxxxxx Xxxxxxx, Xxxxxxxx
Ladies and Gentlemen:
Reference is hereby made to your request for consent to the subletting
contemplated by the Sublease.
We hereby consent to such subletting, subject to the following
understandings, agreements and conditions, notwithstanding anything contained in
the Sublease to the contrary:
1. Neither this consent nor the terms of the Sublease modifies,
amends, waives or affects any of the terms, covenants,
conditions, provisions or agreements of the lease from the
undersigned to Sublessor dated on or about June 30, 1997, as
may have been amended ("LEASE"), nor affects Sublessor's
obligations thereunder, which Lease shall continue to apply to
all the space covered by the Lease and the use and occupancy
thereof. The Sublease is subject and subordinate at all times
to this consent and to the Lease and all of its terms,
covenants, conditions, provisions and agreements.
2. This consent shall not be construed to create a
landlord-tenant relationship or privity of contract or estate
between the undersigned and Sublessee.
61
MCI SYSTEMHOUSE CORP.
07/16/98
Page 2
3. Nothing contained herein shall be construed as a consent to,
approval of, or ratification by the undersigned of any of the
particular provisions of the Sublease or as a representation
or warranty by the undersigned in respect thereof. The
undersigned is not passing on the terms, covenants and
conditions of the Sublease and is not assuming any obligations
under the Sublease.
4. Neither the Sublease, nor this consent thereof shall be
construed as a consent by the undersigned to any further
subletting either by Sublessor or by Sublessee.
5. This consent is not assignable, nor shall this consent be a
consent to any amendment, modification, extension or renewal
of the Sublease, without the undersigned's prior written
consent.
6. Intentionally omitted.
7. Sublessor and Sublessee covenant and agree that under no
circumstances shall the undersigned be liable for any
brokerage commission or other charge or expense in connection
with the Sublease and both Sublessor and Sublessee agree to
indemnify the undersigned, its directors, officers, agents,
shareholders and employees against same and against any cost
or expense (including, without limitation, attorney's fees and
disbursements) incurred by the undersigned, its directors,
officers, agents, shareholders and employees in resisting any
claim for any such brokerage commission.
8. If for any reason the term of the Lease shall terminate, the
Sublease shall automatically be terminated, and on or prior to
the date of such termination of the Sublease, Sublessee shall
quit and surrender the Premises to the undersigned in
accordance with all applicable provisions of the Lease.
9. The execution of this consent by Sublessor and by Sublessee
shall indicate their joint and several confirmation of the
foregoing conditions and their agreement to be bound thereby.
The failure of Sublessor and Sublessee to execute this consent
and deliver it to the undersigned within 30 days of the date
hereof shall render this consent void ab initio and of no
force or effect, without any further action of the
undersigned.
10. The parties hereby acknowledge that any special rights under
the Lease that, by their terms are personal or non-assignable,
including, but not limited to, extension, expansion,
relocation, early termination, signage, or rights that by
their terms are personal or non-assignable, are not being
assigned by the Sublease (notwithstanding anything to the
contrary contained therein), and, to the extent that such
rights by their terms no longer apply after a sublease, then
such rights shall be of no further force or effect.
62
MCI SYSTEMHOUSE CORP.
07/16/98
Page 3
11. This Consent to Sublease is expressly conditioned upon and
subject to the following:
(a) execution and delivery of a lease amendment between
the undersigned and Sublessee in the form attached
hereto as Exhibit A wherein Sublessee agrees to
delete Section 3 of the Rider to that certain lease
dated March 25, 1997 between Sublessee, as Tenant and
the undersigned, as Landlord, for certain other
premises at North Creek II;
(b) execution of a Tenant Estoppel Certificate by
Sublessor with respect to the Lease in the form
attached hereto as Exhibit B;
(c) execution of a Tenant Estoppel Certificate by
Sublessee with respect to its lease with the
undersigned for certain other premises at the
Building in the form attached hereto as Exhibit C;
and
(d) execution of a Tenant Estoppel Certificate by MCI
Telecommunications Corporation with respect to
certain premises leased by MCI Telecommunications
Corporation at North Creek III in the form attached
hereto as Exhibit D.
In the event that Sublessor fails or refuses to execute and deliver to
the undersigned any or all of the foregoing documents (executed by the
appropriate party) together with the fully executed copy of this Consent to
Sublease, then this Consent to Sublease shall, at the sole option of the
undersigned, be null and void.
Very truly yours,
CMD REALTY INVESTMENT FUND III, L.P.,
an Illinois limited partnership
By: CMD/Fund III GP Investments, L.P.,
an Illinois limited partnership,
its general partner
By: CMD XXXX III, Inc., an Illinois corporation,
its general partner
By: /s/ [ILLEGIBLE]
-----------------------------------------
Name:
---------------------------------------
Its:
----------------------------------------
63
MCI SYSTEMHOUSE CORP.
07/16/98
Page 4
CONFIRMED AND AGREED:
MCI Systemhouse Corp.
By: /s/ XXXXXX XXXXXX
-------------------------
Xxxxxx Xxxxxx
Authorized Signatory
ChannelPoint Inc.
By: /s/ XXXXXXX X. XXXXXX
-------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------
Its: President & CEO
------------------------
cc: MCI Telecommunications Corporation
000 X. 00xx Xxxxxx
Xxxxxxxxx, XX 00000
64
EXHIBIT A
LEASE AMENDMENT TWO
THIS LEASE AMENDMENT TWO ("Amendment") is made and entered into as of the 30th
day of June, 1998, by and between CMD Realty Investment Fund III, L.P., an
Illinois limited partnership ("Landlord") and ChannelPoint, Inc., a Delaware
corporation ("Tenant").
A. Landlord and Tenant are the current parties to that certain lease
("Original Lease") dated March 25, 1997, for premises (the "Premises") in the
building (the "Building") known as North Creek II, located at 0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 (the "Property," as may be further
described below), which lease has heretofore been amended or assigned by a
document described and dated as follows First Amendment to Lease dated May 23,
1997 (collectively, and as amended herein, the "Lease").
B. The parties mutually desire to amend the Lease on and subject to the
terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual terms and conditions
herein contained, the parties hereby agree as follows:
1. AMENDMENT. The parties agree that the Lease shall be amended in
accordance with the following terms and conditions:
Section 3 of the Rider to the Lease ("Right to Terminate") is
hereby deleted from the Lease.
2. EFFECTIVE DATE. This Amendment shall become effective as an
amendment to the Lease as of, on and after July 1, 1998 (herein referred to as
the "Effective Date"), and shall continue in effect until amended by the parties
in writing or until expiration or sooner termination of the Lease.
3. BROKERS. Tenant hereby represents and warrants that Tenant has not
dealt with any broker, salesman, agent or finder in connection with this
Amendment, and agrees to defend, indemnify and hold Landlord, and its employees,
agents and affiliates harmless from all damages, losses, judgments, liabilities
and expenses (including reasonable attorneys' fees) arising from any claims or
demands of any broker, salesman, agent or finder with whom Tenant has dealt for
any commission or fee alleged to be due in connection with this Amendment.
65
4. CONFIDENTIALITY. Tenant shall keep the content and all copies of
this document and the Lease, all related documents or amendments now or
hereafter entered, and all proposals, materials, information and matters
relating thereto strictly confidential, and shall not disclose, disseminate or
distribute any of the same, or permit the same to occur, with respect to any
party other than Tenant's financial or legal advisors to the extent that they
need such information to advise Tenant (and Tenant shall obligate any such other
parties to whom disclosure is permitted to honor the confidentiality provisions
hereof), except as may be required by Law or court proceedings.
5. WHOLE AMENDMENT; FULL FORCE AND EFFECT; CONFLICTS. This Amendment
sets forth the entire agreement between the parties with respect to the matters
set forth herein. There have been no additional oral or written representations
or agreements. As amended herein, the Lease between the parties shall remain in
full force and effect. As an inducement for Landlord to enter into this
Amendment, Tenant hereby represents that Landlord is not in violation of the
Lease, and that Landlord has fully performed all of its obligations under the
Lease as of the date on which Tenant signs this Amendment. In case of any
inconsistency between the provisions of the Lease and this Amendment, the latter
provisions shall govern and control.
6. NOT AN OFFER. The submission and negotiation of this Amendment shall
not be deemed an offer to enter into the same by Landlord. Tenant's execution of
this Amendment constitutes a firm offer to enter into the same which may not be
withdrawn for a period of thirty (30) days after delivery to Landlord. During
such period, Landlord may proceed in reliance thereon, but such acts shall not
be deemed an acceptance. Such acceptance shall be evidenced only by Landlord
signing and delivering this Amendment to Tenant.
66
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
WITNESSES; ATTESTATION
(Two for each signatory
required if Building
is in Florida or Ohio):
LANDLORD:
CMD REALTY INVESTMENT FUND III, L.P.,
an Illinois limited partnership
By: CMD/Fund III GP Investments, L.P.,
an Illinois limited partnership,
its general partner
By: CMD XXXX III, Inc.,
an Illinois corporation,
its general partner
By:
-------------------- --------------------------
Name:
------------------------
Its:
-------------------- -------------------------
TENANT:
CHANNELPOINT, INC.
a Delaware corporation
By:
--------------------- -------------------------------
Name:
-----------------------------
Its:
--------------------- ------------------------------
67
EXHIBIT B
TENANT ESTOPPEL CERTIFICATE
MCI Systemhouse Corp., a Delaware corporation ("TENANT"), is a tenant
in the building commonly known as North Creek II and located at 0000 Xxxx
Xxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 ("BUILDING"). CMD Realty
Investment Fund III, L.P., an Illinois limited partnership ("LANDLORD"), has
requested Tenant to execute and deliver this Tenant Estoppel Certificate to
Landlord. Tenant understands that Landlord intends to rely upon information
contained in this Tenant Estoppel Certificate in connection with its consent to
the sublease of Tenant's interest in the Lease (as defined below) to
ChannelPoint, Inc., a Delaware corporation, and in connection with the sale and
purchase of the Building. Accordingly, Tenant hereby certifies as follows:
(a) LEASE DOCUMENTS. Attached hereto as EXHIBIT A is a description of
the lease, all amendments thereto and all other related agreements ("LEASE
DOCUMENTS") between Tenant and Landlord regarding its lease and occupancy in the
Building (collectively, the "LEASE"). The Lease Documents are valid and in full
force and effect.
(b) TERM. The term of the Lease expires on June 30, 2000 (without
regard to any rights of Tenant to terminate or extend the term).
(c) BASE RENT. The monthly base or fixed rent payable by Tenant under
the Lease Documents is $41,984.95 per month.
(d) PREPAID RENT. No rent under the Lease has been paid more than one
month in advance of its due date under the Lease.
(e) SECURITY DEPOSIT. The balance of the security deposit made by
Tenant under the Lease Documents is $ -0-.
(f) CONCESSIONS. Tenant is not entitled to any tenant improvements or
allowances, free rent for any period after the date hereof or any other
concessions with respect to the Lease, except as set forth in the Lease
Documents.
(g) OPTIONS. Tenant has no rights to extend, expand or terminate the
Lease, or purchase the Building, except as set forth in the Lease Documents.
(h) DEFAULTS. To Tenant's actual knowledge, without any independent
investigation, (i) there are no uncured defaults by Tenant or landlord under the
Lease Documents, and no event has occurred and no condition exists which, with
the giving of notice or the lapse of time, or both, would constitute a default
by Tenant or landlord under the Lease Documents, and (ii) Tenant neither has nor
claims any charge, lien, claim, counterclaim, defense or offset against Landlord
under the Lease Documents or otherwise against rents or other charges due or to
become due under the Lease Documents.
68
(i) ADDITIONAL CERTIFICATE. Tenant agrees that it shall, within fifteen
(15) days after its receipt of Landlord's request therefor, furnish Landlord
with an additional Tenant Estoppel Certificate which shall be substantially the
same in form and substance as this Tenant Estoppel Certificate, and which
additional Tenant Estoppel Certificate shall state that it can be relied on and
will run to both Landlord and a purchaser of the Building.
Dated: ________________,1998.
MCI SYSTEMHOUSE CORP.
-----------------------------------
(Tenant)
By:
--------------------------------
Title:
-----------------------------
69
EXHIBIT A
Lease Documents
1. Standard Commercial Lease dated on or about June 30, 1997 by and between
North Creek I-III L.P., a Delaware limited partnership and MCI Systemhouse
Corp.
2. Notice of assignment of lease dated November 19, 1997 from North Creek,
L.P. and CMD Realty Investment Fund III, L.P., an Illinois limited
partnership
70
EXHIBIT C
TENANT ESTOPPEL CERTIFICATE
ChannelPoint, Inc., a Delaware corporation ("TENANT"), is a tenant in
the building commonly known as North Creek II and located at 0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 ("BUILDING"). CMD Realty Investment
Fund III, L.P., an Illinois limited partnership ("LANDLORD"), has requested
Tenant to execute and deliver this Tenant Estoppel Certificate to Landlord.
Tenant understands that Landlord intends to rely upon information contained in
this Tenant Estoppel Certificate in connection with its consent to the sublease
to Tenant of certain premises in the Building currently leased to MCI
Systemhouse Corp., and in connection with the sale and purchase of the Building.
Accordingly, Tenant hereby certifies as follows:
(a) LEASE DOCUMENTS. Attached hereto as EXHIBIT A is a description of
the lease, all amendments thereto and all other related agreements ("LEASE
DOCUMENTS") between Tenant and Landlord regarding its lease and occupancy in the
Building (collectively, the "LEASE"). The Lease Documents are valid and in full
force and effect.
(b) TERM. The term of the Lease expires on July 31, 2002 (without
regard to any rights of Tenant to terminate or extend the term).
(c) BASE RENT. The monthly base or fixed rent payable by Tenant under
the Lease Documents is $23,650.15 per month for the period beginning on August
1, 1998 and ending on July 31, 2001 and $24,096.38 per month for the period
beginning on August 1, 2001 and ending on July 31, 2002.
(d) PREPAID RENT. No rent under the Lease has been paid more than one
month in advance of its due date under the Lease.
(e) SECURITY DEPOSIT. The balance of the security deposit made by
Tenant under the Lease Documents is $300,000 in the form of a transferable
letter of credit.
(f) CONCESSIONS. Tenant is not entitled to any tenant improvements or
allowances, free rent for any period after the date hereof or any other
concessions with respect to the Lease, except as set forth in the Lease
Documents.
(g) OPTIONS. Tenant has no rights to extend, expand or terminate the
Lease, or purchase the Building, except as set forth in the Lease Documents.
(h) DEFAULTS. To Tenant's actual knowledge, without any independent
investigation, (i) there are no uncured defaults by Tenant or landlord under the
Lease Documents, and no event has occurred and no condition exists which, with
the giving of notice or the lapse of time, or both, would constitute a default
by Tenant or landlord under the Lease Documents, and (ii) Tenant neither has nor
claims any charge, lien, claim, counterclaim, defense or offset against Landlord
under the Lease Documents or otherwise against rents or other charges due or to
become due under the Lease Documents.
71
(i) ADDITIONAL CERTIFICATE. Tenant agrees that it shall, within fifteen
(15) days after its receipt of Landlord's request therefor, furnish Landlord
with an additional Tenant Estoppel Certificate which shall be substantially the
same in form and substance as this Tenant Estoppel Certificate, and which
additional Tenant Estoppel Certificate shall state that it can be relied on and
will run to both Landlord and a purchaser of the Building.
Dated: _________________, 1998.
CHANNELPOINT, INC.
-------------------------------------
(Tenant)
By:
----------------------------------
Title:
-------------------------------
72
EXHIBIT A
Lease Documents
1. Standard Commercial Lease dated on or about March 25, 1997 by and
between North Creek I-III L.P., a Delaware limited partnership and
Channelworks, Inc.
2. First Amendment to lease dated May 23, 1997
3. Notice of assignment of lease dated November 19, 1997 from North Creek,
L.P. and CMD Realty Investment Fund III, L.P., an Illinois limited
partnership
73
EXHIBIT D
TENANT ESTOPPEL CERTIFICATE
MCI Telecommunications Corporation, a Delaware corporation ("TENANT"),
is a tenant in the building known as North Creek III and located at 0000 Xxxx
Xxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 ("BUILDING"). CMD Realty
Investment Fund III, L.P., an Illinois limited partnership ("LANDLORD"), has
requested Tenant to execute and deliver this Tenant Estoppel Certificate to
Landlord. Tenant understands that Landlord intends to rely upon information
contained in this Tenant Estoppel Certificate in connection with the sale and
purchase of the Building. Accordingly, Tenant hereby certifies as follows:
(a) LEASE DOCUMENTS. Attached hereto as EXHIBIT A is a description of
the lease, all amendments thereto and all other related agreements ("LEASE
DOCUMENTS") between Tenant and landlord regarding its lease and occupancy in the
Building (collectively, the "LEASE"). The Lease Documents are valid and in full
force and effect.
(b) TERM. The term of the Lease expires on February 29, 2004 (without
regard to any rights of Tenant to terminate or extend the term).
c) BASE RENT. The monthly base or fixed rent payable by Tenant under
the Lease Documents is as follows:
-----------------------------------------------------------------------
Period Monthly Base Rent
-----------------------------------------------------------------------
JULY 1, 1998 THROUGH FEBRUARY 28, 1999 $109,333.24
-----------------------------------------------------------------------
MARCH 1, 1999 THROUGH FEBRUARY 29, 2000 $116,220.38
-----------------------------------------------------------------------
MARCH 1, 2000 THROUGH FEBRUARY 28, 2001 $118,803.05
-----------------------------------------------------------------------
MARCH 1, 2001 THROUGH FEBRUARY 28, 2002 $122,246.62
-----------------------------------------------------------------------
MARCH 1, 2002 THROUGH FEBRUARY 28, 2003 $125,690.18
-----------------------------------------------------------------------
MARCH 1, 2003 THROUGH FEBRUARY 29, 2004 $129,133.75
-----------------------------------------------------------------------
(d) PREPAID RENT. No rent under the Lease has been paid more than one
month in advance of its due date under the Lease.
(e) SECURITY DEPOSIT. The balance of the security deposit made by
Tenant under the Lease Documents is $-0-.
(f) CONCESSIONS. Tenant is not entitled to any tenant improvements or
allowances, free rent for any period after the date hereof or any other
concessions with respect to the Lease, except as set forth in the Lease
Documents.
74
(g) OPTIONS. Tenant has no rights to extend, expand or terminate the
Lease, or purchase the Building, except as set forth in the Lease Documents.
(h) DEFAULTS. To Tenant's actual knowledge, without any independent
investigation, (i) there are no uncured defaults by Tenant or landlord under the
Lease Documents, and no event has occurred and no condition exists which, with
the giving of notice or the lapse of time, or both, would constitute a default
by Tenant or landlord under the Lease Documents, and (ii) Tenant neither has nor
claims any charge, lien, claim, counterclaim, defense or offset against Landlord
under the Lease Documents or otherwise against rents or other charges due or to
become due under the Lease Documents.
(i) ADDITIONAL CERTIFICATE. Tenant agrees that it shall, within fifteen
(15) days after its receipt of Landlord's request therefor, furnish Landlord
with an additional Tenant Estoppel Certificate which shall be substantially the
same in form and substance as this Tenant Estoppel Certificate, and which
additional Tenant Estoppel Certificate shall state that it can be relied on and
will run to both Landlord and a purchaser of the Building.
Dated: __________________,1998.
MCI Telecommunications Corporation
-----------------------------------
(Tenant)
By:
--------------------------------
Title:
-----------------------------
75
EXHIBIT A
LEASE DOCUMENTS
1. Lease dated December 6, 1993 by and between The Equitable Life Assurance
Society of the United States and MCI Telecommunications Corporation
2. First Amendment to Lease dated February 15, 1994
3. Second Amendment to Lease dated May 29, 1998
4. Notice of assignment of lease dated November 19, 1997 from North Creek, L.P.
and CMD Realty Investment Fund III, L.P., an Illinois limited partnership
