SECOND AMENDMENT TO OFFICE LEASE
THIS SECOND AMENDMENT TO OFFICE LEASE (this "Agreement") is made the 30
day of August, 1998, by and between XXXXXX OREGON EQUITIES, L.L.C. , an Oregon
limited liability company (the "Lessor") and CORILLIAN CORPORATION, an Oregon
corporation (the "Lessee").
RECITALS.
A. Lessor entered that certain Office Lease dated March 20, 1996,
with CheckFree Corporation, an Ohio corporation (the "Initial Lease"), the
lessee's interest of which was assigned by Assignment of and Consent to
Assignment of Lease, dated May 15, 1997, to Lessee. The Initial Lease has been
amended by that certain First Amendment to Office Lease between Lessor and
Lessee of even date herewith (the "First Amendment"). As used in this
Agreement the term "Lease" means the Initial Lease as amended by the First
Amendment. The Lease pertains to office space in a project known as the Xxxxxx
Business Center (the "Project"), which space is more particularly described in
the Lease. Terms with initial capitals used in this Agreement, unless
otherwise defined, shall have the meanings given them in the Lease.
B. Lessee has advised Lessor that it desires to lease certain
expansion space in Building 3 of the Project consisting of approximately 8,801
useable square feet and 9,522 rentable square feet, as outlined in Exhibit A to
this Agreement (the "Expansion Space") provided that Lessee can occupy the
Expansion Space not later than February 1, 2000. Lessor is willing to lease
the Expansion Space to Lessee on the terms and subject to the conditions set
forth in the Lease, and on the further terms and subject to the further
conditions set forth in this Agreement.
AGREEMENT.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties agree:
1. TERM. Commencing on the date determined pursuant to this Section
1, and continuing for the remaining term of the Lease, Lessor shall lease to
Lessee and Lessee shall lease from Lessor the Expansion Space. The foregoing
lease of the Expansion Space shall commence, if at all, between the period of
July 1, 1999 and February 1, 2000, on the date (the "Expansion Space
Commencement Date") that is the thirtieth (30th) day following Lessor's written
notice (the "Expansion Space Notice") to Lessee stating that the Expansion
Space will be ready for occupancy by the thirtieth (30th) day following the
date of such notice (which notice shall not be given before June 1, 1999, or
after January 1, 2000); provided, that the Expansion Space Commencement Date
shall be extended, but not beyond February 1, 1999, one day for each day after
the thirtieth (30th) day following the Expansion Space Notice
PAGE 1
that Nike, Inc., the existing tenant in the Expansion Space, actually vacates
the same. Lessor shall use commercially reasonable efforts to keep Lessee
advised, from time to time after execution of this Agreement, concerning the
date on which Lessor anticipates that the Expansion Space will be available.
If Lessor anticipates that the Expansion Space will be available for occupancy
before July 1, 1999, Lessor shall so advise Lessee, and upon the parties'
written agreement, the lease of the Expansion Space hereunder may commence
before July 1, 1999. If for any reason Lessor has not given Lessee the
Expansion Space Notice on or before January 1, 2000, or the Expansion Space
Commencement Date does not occur by February 1, 1999, then this Agreement shall
terminate automatically and be of no further force and effect.
2. RENT. Effective upon the Expansion Space Commencement Date,
Section 3 of the Lease shall be amended to substitute the following for the
corresponding portion of the table appearing therein:
Months Additional Minimum Aggregate Monthly
------ ------------------ -----------------
Monthly Rent - Minimum
--------------- --------
Expansion Space Rent
--------------- ----
Month in which Expansion Space
Commencement Date occurs -48 $11,001.00 $25,345.00
49-60 $11,331.00 $26,105.00
61-72 $11,671.00 $26,889.00
73-84 $12,021.00 $27,695.00
85-96 $12,382.00 $28,526.00
97-108 $12,753.00 $29,381.00
The minimum monthly rent due in respect of the Expansion Space for the month in
which the Expansion Space Commencement Date occurs shall be prorated (at the
rate of $366.70 per day) if the Expansion Space Commencement Date occurs other
than on the first day of such month.
3. PREPAID RENT AND SECURITY DEPOSIT. Within ten (10) days
following Lessee's receipt of the Expansion Space Notice, Lessee shall deliver
to Lessor the sum of $22,002.00, consisting of prepayment of the first month's
minimum rent for the Expansion Space, and a further security deposit of
$11,001.00. Upon delivery of such sum, the term "Security Deposit" used in the
Lease shall mean such $11,001.00 PLUS the $14,344.00 already held by Lessor as
a security deposit thereunder, and Lessee's obligation, if any, to replenish
the Security Deposit shall extend to the full $25,345.00 thereof.
4. PARKING. Effective upon the Expansion Space Commencement Date,
Section 4 of the First Amendment shall be amended to substitute the number
fifty-one (51) for the number thirty-four (34) each instance that it appears
therein.
PAGE 2
5. WORK LETTER AGREEMENT. Not later than the Expansion Space
Commencement Date, Lessor shall complete certain improvements to the Expansion
Space consisting of the following:
A. Lessor shall construct a doorway on the ground floor of
the Project, giving access from the Expansion Space to the elevator lobby.
X. Xxxxxx shall paint the stairwell giving access to the
Expansion Space in Lessee's choice of a standard color established for use in
the Project.
Except for the improvements described in this Section 5, the Expansion Space
shall be delivered to Lessee "As Is," in its condition existing on the date
that Nike, Inc., vacates the same.
6. PREMISES. Effective upon the Expansion Space Commencement Date,
the term "Premises" as used in the Lease shall mean the original "Premises" as
defined at Section 1 of the Lease, and the Expansion Space.
7. RATIFICATION. Except to the extent expressly amended hereby, the
Lease, and each of its terms and provisions, is hereby ratified and confirmed
in all respects and shall remain in full force and effect and unmodified.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
XXXXXX OREGON EQUITIES, L.L.C.,
an Oregon limited liability company
By: /s/
---------------------------
Title: Member
Date: 8/31/98
CORILLIAN CORPORATION,
an Oregon corporation
By: /s/ Xxx X. Xxxxxxx
---------------------------
Title: CEO
Date: 8/12/98
PAGE 3
STATE OF OREGON )
) ss.
COUNTY OF WASHINGTON )
On Aug. 12th, 1998, before me, Xxxx X. Xxxx, a Notary Public in and for
said state, personally appeared --------------- and Xxx X. Xxxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the persons whose names are subscribed to the within instrument and
acknowledged to me that they executed the same in their authorized capacities,
and that by their signatures on the instrument the persons, or the entity upon
behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxx X. Xxxx
---------------------------
Notary Public in and for said State
---------------------------------------
OFFICIAL SEAL
XXXX X. XXXX
NOTARY PUBLIC - OREGON
COMMISSION NO. 051372
MY COMMISSION EXPIRES FEB. 21, 2000
---------------------------------------
STATE OF )
) ss.
COUNTY OF )
On ____________________, 19__, before me, ____________________, a Notary
Public in and for said state, personally appeared ____________________ and
____________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the
persons, or the entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
------------------------------------
Notary Public in and for said State
PAGE 4
FIRST AMENDMENT TO OFFICE LEASE
THIS FIRST AMENDMENT TO OFFICE LEASE (this "Agreement") is made the 23
day of June, 1998, by and between XXXXXX OREGON EQUITIES, L.L.C., an Oregon
limited liability company (the "Lessor") and CORILLIAN CORPORATION, an Oregon
corporation (thc "Lessee").
RECITALS.
A. Commercial Real Estate Company, LLC, a Washington limited
liability company and CheckFree Corporation, an Ohio corporation entered that
certain Office Lease dated March 20, 1996 (the "Lease"), the lessee's interest
of which was assigned by Assignment of and Consent to Assignment of Lease, dated
May 15, 1997, to Lessee, and the lessor's interest of which has been assigned
and transferred to Lessor. The Lease pertains to 11,350 square feet of useable,
and 12,280 square feet of rentable, office space, in a project known as the
Xxxxxx Business Center (the "Project"), which space is more particularly
described in the Lease. Terms with initial capitals used in this Agreement,
unless otherwise defined, shall have the meanings given them in the Lease.
B. Lessee has advised Lessor that it desires to extend the term of
the Lease, which currently expires February 28, 1999, for an additional period
of six years. Lessor is willing to grant such extension on the terms and
subject to the conditions set forth in this Agreement.
AGREEMENT.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties agree:
1. TERM. Section 2 of the Lease is hereby amended to substitute the
date, February 28, 2005, for the date February 28, 1999, appearing therein.
2. MONTHLY MINIMUM RENT. Section 3 of the Lease is hereby amended to
add, to the table appearing therein, the following:
Months Monthly Minimum Rent
------ --------------------
37-48 $14,344.00
49-60 $14,774.00
61-72 $15,218.00
73-84 $15,674.00
85-96 $16,144.00
97-108 $16,628.00
PAGE 1
3. PREPAID RENT AND SECURITY DEPOSIT. Section 4 of the Lease is
hereby deleted in its entirety and the following is substituted therefor:
"Lessee has delivered to Lessor, and Lessor currently
holds, $14,344.00 which amount shall be held by Lessor under such
section shall no longer be applied in payment of the last month's
rent under this Lease but shall be held by Lessor as a security
deposit for Lessee's due and prompt performance of each of its
obligations under the Lease (the "Security Deposit"). If Lessee
fails to perform any of its obligations under this Lease, then
Lessor shall be entitled, without terminating this Lease and
without limiting any other right it may have under this Lease or
under applicable law, to apply all or any part of the Security
Deposit to cure such failure or to compensate Lessor for any loss
caused by Lessee's failure to perform. Following Lessor's
application of the Security Deposit in accordance with the
preceding sentence, Lessee shall be obligated, upon receipt of
Lessor's demand therefore, to restore the Security Deposit to
$14,344.00 unless such application has occurred following
expiration of the term of the Lease. Upon expiration of the term
of the Lease, after applying the Security Deposit in the manner
permitted by this Section 4, Lessor shall refund to Lessee the
Security Deposit net of such amounts that have been applied.
Lessor may, upon transfer of its interest in the Lease, transfer
the Security Deposit to its assignee and upon any such transfer
Lessor shall be released and discharged from any further
obligation or liability to Lessee with respect to the Security
Deposit."
4. PARKING. From and after the date of this Agreement, Lessee shall
have the right to use up to thirty-four (34) parking spaces in the outside
parking lot that forms a part of the Project, which use shall be subject to and
shall comply in all respects with rules and regulations from time to time
established by Lessor for the use of such lot. Lessee shall have no right in
any particular parking space but rather shall the right to use up to thirty-four
(34) spaces, on a first-come-first-served basis, with others who enjoy parking
privileges in the lot.
5. WORK LETTER AGREEMENT. The Lease is hereby amended to provide
that not later than commencement of the thirty-seventh (37th) month of the Lease
term, Lessor shall complete certain improvements to the Premises consisting of
the following:
A. Lessor shall install one or more light fixtures in the
Project stairwell that leads to the Premises, as and to the extent appropriate,
in the exercise of Lessor's discretion, to reasonably enhance the lighting of
such stairwell and entry.
X. Xxxxxx shall install carpeting in the ground-floor entryway
to the Premises over the parquet flooring currently existing in that entryway.
X. Xxxxxx shall supply and install in the Premises an
ice-maker and dishwasher, which appliances shall, upon installation, be and
remain Lessor's sole property but shall be available for use by Lessee during
the term of this Lease.
PAGE 2
Lessor shall perform the work under this Section 5 during normal business hours
following reasonable advance notice to Lessee. Except as set forth in this
Section 5, the Premises shall be delivered to Lessee "As Is" at commencement of
the thirty-seventh month of the Lease term, in its condition existing at that
time.
6. ASSIGNMENT AND SUBLETTING. Section 13 of the Lease is hereby
amended as set forth in this Section 6. In connection with requesting Lessor's
consent to an assignment or subletting of all or any part of the Premises,
Lessee shall deliver to Lessor a statement setting forth the proposed terms of
the subletting or assignment, together with such background information
concerning the proposed assignee or subtenant as Lessor may reasonably request
(which information shall include, at a minimum, the name and state of
organization of the proposed subtenant or assignee, the name of the executive
officers or managers of the proposed subtenant or assignee, a description of the
business in which the proposed subtenant or assignee is engaged and will engage
in at the Premises, and financial statements for the proposed subtenant or
assignee for the prior two fiscal years consisting, at a minimum, of a balance
sheet and statements of profit and loss). Lessor's 20-day period under Section
13 of the Lease, to consent to such subletting or assignment, or to recapture
the portion of the Premises proposed to be sublet or assigned, shall commence
only when all of the foregoing information has been provided. If Lessor does
not elect to recapture the Premises (or applicable portion thereof) in
accordance with its rights under Section 13, as amended hereby, then Lessor
shall not unreasonably withhold its consent to the proposed subletting or
assignment. To the extent that any subletting or assignment permitted to be
made under Section 13, as amended hereby, results in the payment to Lessee of
any amount that exceeds Lessee's obligation of payment to Lessor under the
Lease, then Lessee shall pay one-half of such excess, upon receipt, to Lessor as
additional rent under the Lease. Notwithstanding any provision of Section 13
seemingly to the contrary, in no event shall Lessee (a) advertise the Premises
or any part thereof for subletting or assignment at a rental rate that is lower
than the rental rates then being charged in the Project for comparable space,
(b) assign the Lease or sublease the Premises, or any portion thereof, to
another tenant in the Project, or (c) assign the Lease or sublet the Premises,
or any portion thereof, to any third party with whom Lessor has, within the
twelve (12) months preceding such assignment or subletting, negotiated
concerning a lease in the Project. If Lessor exercises its right under Section
13, as amended hereby, to recapture the Premises, or the portion thereof that
Lessee proposes to sublease or assign, Lessee shall pay Lessor's managing agent,
at the effective date of such recapture by Lessor, a leasing commission for two
and one-half percent (2.5%) of the aggregate minimum annual rent payable in
respect of such space during the remaining Lease term.
7. RATIFICATION. Except to the extent expressly amended hereby, the
Lease, and each of its terms and provisions, is hereby ratified and confirmed in
all respects and shall remain in full force and effect and unmodified.
PAGE 3
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
XXXXXX OREGON EQUITIES, L.L.C.,
an Oregon limited liability company
By: /s/
---------------------------
Title: Member
------------------------
Date: June 23, 1998
------------------------
CORILLIAN CORPORATION,
an Oregon corporation
By: /s/ Xxx X. Xxxxxxx
---------------------------
Title: Chairman
------------------------
Date: June 11, 1998
------------------------
STATE OF OREGON )
) ss.
COUNTY OF WASHINGTON)
On June 11, 1998, before me, Xxxxxx Sea, a Notary Public in and for
said state, personally appeared Xxxxxxxx Xxxxxxx and ________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
persons whose names are subscribed to the within instrument and acknowledged to
me that they executed the same in their authorized capacities, and that by their
signatures on the instrument the persons, or the entity upon behalf of which the
persons acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxx Sea
------------------------------------
Notary Public in and for said State
------------------------------------
OFFICIAL SEAL
VEASNA SEA
NOTARY PUBLIC - OREGON
COMMISSION NO. 309008
MY COMMISSION EXPIRES FEB. 1, 2002
------------------------------------
PAGE 4
ASSIGNMENT OF AND CONSENT TO ASSIGNMENT OF LEASE
This Assignment of and Consent to Assignment of Lease is made on this 15 day
of May, 1997, between COMMERCIAL REAL ESTATE COMPANY, LLC, ("Lessor"), whose
address is 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000, and
CHECKFREE CORPORATION, whose address is 0000 XX Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000, ("Assignor") and CORILLIAN CORPORATION, whose address is
0000 XX Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("Assignee"), who
agree as follows:
1. RECITALS. This Assignment of Lease is made with reference to the
following facts and objectives:
a. Lessor and Assignor, as Lessee, entered into a written Lease dated
March 20, 1996, (the "Lease"), in which Lessor leased to Assignor
and Assignor leased from Lessor Premises located in the city of
Beaverton, County of Washington, Oregon, commonly known as 0000 XX
Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000.
b. Assignor desires to assign all of its right, title and interest in
the Lease to Assignee ("Assignment").
x. Xxxxxx shall consent to the proposed Assignment on the conditions
set forth in this Assignment.
2. EFFECTIVE DATE OF ASSIGNMENT. The Assignment in this Agreement shall
take effect on May 15, 1997, and Assignor shall give possession of
the Premises to Assignee on that date.
3. ASSIGNMENT AND ASSUMPTION. Assignor assigns and transfers to Assignee
all of its right, title and interest in the Lease, and Assignee accepts
the Assignment and assumes and agrees to perform, from the date the
Assignment becomes effective, as a direct obligation to Lessor, all of
the provisions of the Lease.
4. LESSOR'S CONSENT. Lessor consents to the Assignment without waiver of
the restrictions in the Lease concerning further assignment or
subleasing.
5. ASSIGNOR'S LIABILITY. Assignor shall remain primarily liable for the
performance of the provisions and obligations under the Lease, including
without limitation all obligations existing as of the date of this
Agreement. Anything in this agreement to the contrary notwithstanding,
Assignor's obligations under the Lease remain as a direct obligation of
Assignor to Lessor. Lessor's willingness to accept performance by
Assignee of Assignor's obligations does not affect the direct obligation
of Assignor
PAGE 1
to Lessor. Upon a default by Lessee, Lessor may file suit directly
against Assignor whether or not Lessor is enforcing its remedies
against Assignee.
6. ASSIGNEE TO HOLD ASSIGNOR HARMLESS. If Assignee defaults under the
Lease, Assignee shall indemnify and hold Assignor harmless from all
damages, including reasonable attorney's fees and costs of suit, at trial
and on appeal, resulting from the default. If Assignee defaults in its
obligations under the Lease and Assignor pays rent to Lessor or fulfills
any of Assignee's other obligations in order to prevent Assignee from
being in default, Assignee immediately shall reimburse Assignor for the
amount of rent or costs incurred by Assignor in fulfilling Assignee's
obligations under the Assignment of Lease, together with interest on
those sums at the rate provided for in the Lease for interest on late
payments.
7. DEFAULT OF LEASE: NOTICE TO ASSIGNOR. Lessor will send any notice of
default to both Assignor and Assignee.
8. PREPAID RENT: SECURITY DEPOSIT AND LAST MONTH'S RENT. The parties
acknowledge that Lessor now holds the sum of $14,344.00, of which $0 is a
security deposit and $14,344.00 is to be applied to last month's rent,
subject to the provisions of the Lease. Assignor releases all claims to
that sum, and the sum shall be held by Lessor for the benefit of
Assignee, subject to the provisions of the Lease.
9. AMENDMENT OF LEASE. Lessor and Assignee shall not enter into any
agreement that amends the material items and obligations pursuant to the
Lease without notice to Assignor. If Lessor and Assignee amend the Lease
and Lessor fails to give notice to Assignor, such failure shall not
release Assignor from its obligation on any unamended portions of the
Lease. In such event Assignor will remain liable under the Lease and
this Agreement as if such amendment had not been made.
10. MISCELLANEOUS.
a. ATTORNEYS' FEES. If any party commences an action against any of
the other parties arising out of or in connection with this
Assignment of Lease, the prevailing party or parties shall be
entitled to recover from the losing party or parties reasonable
attorney's fees and costs of suit, at trial or on appeal.
b. NOTICE. Any notice, demand, request, consent, approval or
communication that any party desires or is required to give to any
other party or any other person shall be given in the manner
provided for notices in the Lease at the address set forth in the
introductory paragraph of this Assignment. Either party may
change its address by notifying the other party of the change of
address in writing.
PAGE 2
c. SUCCESSORS. This Assignment shall be binding on and inure to the
benefit of the parties and their successors.
LESSOR:
/s/ Xxxxx Xxxxxxxx 7/9/97
---------------------------------- -----------------------------------
By: Xxxxx Xxxxxxxx Date
Its: Manager
ASSIGNOR:
CHECKFREE CORPORATION
/s/ Xxxxxxx X. Xxxxxxxxx 6/21/97
---------------------------------- -----------------------------------
By: Xxxxxxx X. Xxxxxxxxx Date
Its: Executive Vice President-Retail
Financial Services
ASSIGNEE:
CORILLIAN CORPORATION
/s/ Xxx X. Xxxxxxx 6/11/97
---------------------------------- -----------------------------------
By: Xxx X. Xxxxxxx Date
Its: President
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxxx X.
Xxxxxxxx is the person who appeared before me, a Notary Public in and for the
State of Washington duly commissioned and sworn, and acknowledged that he is
the President of Commercial Real Estate Company, LLC, a Washington limited
liability company, who executed the within and foregoing instrument, and
acknowledged the instrument to be the free and voluntary act and deed of said
company for the uses and purposes therein mentioned, and on oath stated that
affiant is authorized to execute said instrument on behalf of said company.
PAGE 3
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the
day and year first above written.
/s/ Xxxxxx Xxxxxxxx
[Notarial Seal] -----------------------------------
Notary Public in and for the
State of Washington
---------------------------
residing at Seattle
------------------------
Commission expires 3/1/99
-----------------
Print Name Xxxxxx X. Xxxxxxxx
-------------------------
STATE OF OHIO )
-------------------) ss.
COUNTY OF FRANKLIN )
------------------
I certify that I know or have satisfactory evidence that Xxxxxxx X.
Xxxxxxxxxx is the person who appeared before me, a Notary Public in and for the
State of Ohio duly commissioned and sworn, and acknowledged that he/she is the
Executive Vice President-Retail Financial Services of CheckFree Corporation, a
Delaware corporation, who executed the within and foregoing instrument, and
acknowledged the instrument to be the free and voluntary act and deed of said
company for the uses and purposes therein mentioned, and on oath stated that
affiant is authorized to execute said instrument on behalf of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the
day and year first above written.
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Notary Public in and for the
State of Ohio
---------------------------
residing at
------------------------
Commission expires My commission
-----------------
has no expiration date
-----------------------------------
Print Name Xxxxxx X. Xxxxxxx.
-------------------------
Attorney at Law
-----------------------------------
[Notarial Seal]
PAGE 4
STATE OF OREGON ) [Notarial Seal]
------------------) ss.
COUNTY OF WASHINGTON )
----------------
I certify that I know or have satisfactory evidence that Xxx X. Xxxxxxx
is the person who appeared before me, a Notary Public in and for the State of
Oregon duly commissioned and sworn, and acknowledged that he/she is the
President of Corillian, a corporation, who executed the within and foregoing
instrument, and acknowledged the instrument to be the free and voluntary act
and deed of said corporation for the uses and purposes therein mentioned, and
on oath stated that affiant is authorized to execute said instrument on behalf
of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the
day and year first above written.
/s/ Xxxxxx X. Xxxx
-----------------------------------------
Notary Public in and for the
State of Oregon
---------------------------------
residing at 20824 XX Xxxxx in Beaverton
------------------------------
Commission expires 6/19/98
-----------------------
Print Name Xxxxxx X. Xxxx
-------------------------------
PAGE 5
OFFICE LEASE
THIS LEASE AGREEMENT made this 20 day of March, 1996, by and between Commercial
Real Estate Company, L.L.C., a Washington limited liability company (the
"Lessor") and CheckFree Corporation, an Ohio corporation, (the "Lessee").
1. PREMISES. Lessor does hereby lease to Lessee those certain premises, to
wit: approximately 11,350 square feet of office space in Xxxxxxxx 0,
Xxxxx Xxxxx, as outlined on Exhibit A attached hereto (hereinafter called
"Premises") being situated within the Project known as the Xxxxxx
Business Center. See Legal Description attached as Exhibit B.
2. TERM. This Lease shall be for a term of three (3) years and zero (0)
months commencing March 1, 1996 (the "Commencement Date") and terminating
February 28, 1999.
3. MONTHLY MINIMUM RENT. Lessee covenants and agrees to pay Lessor at 0000
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, or to such other party or
at such other place as Lessor may hereafter designate, Monthly Minimum
Rent in the following amounts according to the schedule below and
Additional Rent, as provided in Section 10, in advance without offset or
deduction, on or before the first (1st) day of each month of the Lease
term:
Months Monthly Minimum Rent
------ --------------------
1-8 $ 7,458.00
9-12 $10,430.00
13-24 $12,117.00
25-36 $14,344.00
4. PRE PAID RENT DEPOSIT. Lessee has deposited with Lessor on the date
hereof Nineteen Thousand Six Hundred Seventy and No/100 Dollars
($19,670.00) of which $6,412.00 is to be applied to Monthly Minimum Rent
for the first month of the Lease and $13,258.00 is to be applied to
Monthly Minimum Rent for the last month of the Lease Term.
5. EXHIBITS: The following exhibits or riders are made a part of this
Lease:
Exhibit A - Floor Plan of Premises
Exhibit B - Legal Description
Exhibit C - Rules and Regulations
Exhibit D - Standards for Utilities and Services
Exhibit E - Riders to Lease
Exhibit F - Floor Plan of Right of First Offer Space
Exhibit G - Work Letter Agreement
Exhibit H - Space Plan of Premises
6. USE. Lessee shall use the Premises for the purposes of general office
and for no other purposes, without the prior written consent of Lessor,
and shall comply with all governmental laws, ordinances, regulations,
orders and directives and insurance requirements applicable to Lessee's
use of the Premises. Lessee shall not occupy or use or permit any portion
of the Premises to be occupied or used in such a manner or for any
purpose which would increase the cost of insurance coverage's upon the
Premises, the building or the contents thereof.
Page 1
7 RULES AND REGULATIONS. Lessee agrees to comply with the Rules and
Regulations attached hereto as Exhibit C, as well as such other
reasonable rules and regulations as may from time to time be adopted by
Lessor for the management, good order and safety of common areas, the
building and its Lessee(s). Lessee shall be responsible for the
compliance with such rules and regulations by its employees, agents and
invitees. Lessor's failure to enforce any of such rules and regulations
against Lessee or any other Lessee shall not be deemed to be a waiver of
same.
8. MAINTENANCE AND REPAIRS.
a. LESSEE OBLIGATIONS. By entry hereunder, Lessee accepts the
Premises as being in good and sanitary order, condition and repair.
Lessee shall, at its expense, keep, maintain and preserve the Premises in
first class condition and repair, and shall make all repairs to the
Premises and every part thereof. Lessee shall, upon the expiration or
sooner termination of the term hereof, surrender the Premises to Lessor
in the same condition as when received, usual and ordinary wear and tear
excepted. Lessee shall not alter, remodel, improve, repair, decorate or
paint the Premises or any part thereof without first obtaining the prior
written permission of Lessor.
x. XXXXXX OBLIGATIONS. Notwithstanding Section 8a, Lessor shall
repair and maintain the structural portions of the Building and the
plumbing, heating, ventilating, air conditioning, elevator and electrical
systems furnished by Lessor; the costs of the foregoing shall be
Operating Expenses, unless such maintenance and repairs are caused by the
act, neglect or omission of Lessee, its agents, servants, employees or
invitees, in which case Lessee shall pay to Lessor, as additional rent,
the cost of such maintenance and repairs. Lessor shall not be liable for
any failure to make any such repairs or to perform any maintenance unless
such failure shall persist for an unreasonable time after written notice
of the need of such repairs or maintenance is given to Lessor by Lessee.
There shall be no abatement of rent and no liability of Lessor by reason
of any injury to or interference with Lessee's business arising from the
making of any repairs, alterations or improvements in or to any portion
of the Building or the Premises or in or to fixtures, appurtenances and
equipment therein. Lessee waives the right, if any, to make repairs at
Lessor's expense under any law, statute or ordinance now or hereafter in
effect.
9. UTILITIES AND FEES. It is Lessor's policy that utilities and services be
furnished as set forth in Exhibit D hereto. Lessor's failure to furnish
any of such items shall not result in any liability to Lessor, Lessee
shall not be entitled to any abatement or reduction of rent by reason of
such failure, and no eviction of Lessee shall result from such failure.
If Lessee uses more water or electrical power than is considered
reasonable or normal by Lessor, Lessor may at its option require Lessee
to pay, as additional rent, the cost, as fairly determined by Lessor,
incurred by such extraordinary usage. In addition, Lessor may install
separate meter(s) for the Premises, at Lessee's sole expense, and Lessee
thereafter shall pay all charges so metered. Alternatively, Lessee may
utilize a portion of the Lessee Improvement Allowance to pay for the cost
of the installation of such separate meter(s).
10. ADDITIONAL RENT AND MONTHLY OPERATING EXPENSE ADJUSTMENTS. For each
calendar year during this Lease, or portion thereof, Lessee shall pay as
Additional Rent its pro rata share of the amount by which Operating
Expenses for each year exceed $4.30 per square foot. Lessor shall
estimate, from time to time, Lessee's payment amount. This estimated
amount shall be divided into equal monthly installments, one payable with
each installment of the Monthly Minimum Rent. As soon as practical
following each calendar year, Lessor shall prepare
Page 2
an accounting of actual Operating Expenses incurred during the prior
calendar year and such accounting shall reflect Lessee's Percentage. If
the Additional Rent paid by Lessee under this Section 10 during the
preceding calendar year was less than the actual amount of Lessee's
Percentage of Operating Expenses, Lessor shall notify Lessee and Lessee
shall pay such amount to Lessor within fifteen (15) days of receipt of
such notice. Lessee shall have fifteen (15) days from receipt of such
notice to contest the amount due; failure to so notify Lessor shall
represent final determination of Lessee's share of Operating Expenses.
If Lessee's payments were greater than the actual amount due, then such
overpayment shall be credited to Lessor to all present rent next due
under this Section 10.
For the purposes of this Paragraph 10, "Operating Expenses" shall
include, but not be limited to:
a) Real Estate taxes and assessments, all costs of management,
operation and maintenance of the Premises, the building and the
Land, including without limitation the following: wages and
salaries of employees; janitorial, cleaning, maintenance, and
other services; electricity, water, waste disposal and other
utilities; heating, ventilating and air conditioning; materials
and supplies; painting, repairs and other maintenance; insurance;
all real and personal property taxes, assessments, and charges
levied upon or with respect to the Land, the Building or Lessor's
interest in the same; and depreciation on personal property,
Management fees; expenses incurred to operate an on site
management office; association dues directly attributable to the
management of the property. Expenses shall not include
depreciation on the Building; costs of tenants' improvements; real
estate brokers' commissions; or capital items except that Expenses
shall include the cost of any capital improvements made after
completion of the Building as a labor-saving device or to effect
other economies in the operation or maintenance of the building or
made after the date of this Lease that are required under any
governmental law or regulation, such costs to be amortized over
such reasonable period as Lessor shall determine, together with
interest at a rate equal to the rate of interest publicly
announced from time to time by Seattle First National Bank of
Washington, Seattle, Washington, as its "prime interest rate" plus
two percent (2%) per annum or such higher rate as may be paid by
Lessor on funds borrowed for the purpose of constructing such
capital improvements.
Even after this Lease has expired or been terminated, when final
determination is made of Lessee's Percentage of Operating Expenses for
the year in which this Lease expires or terminates, Lessee shall
immediately pay any shortfall due. Conversely, any overpayment made
shall be rebated by Lessor to Lessee, unless Lessee at that time is
indebted to Lessor.
11. LESSOR'S RESERVATIONS. Lessor reserves the right without liability to
Lessee: (a) to inspect the Premises, to show them to prospective
Lessees, and if they are vacated, to prepare them for reoccupancy; (b) to
retain at all times and to use in appropriate instances keys to doors
within and into the Premises; (c) to make repairs, alterations, additions
or improvements, whether structural or otherwise, in or about the
building, and for such purposes to enter upon the Premises and during the
continuance of any work, to close common areas and to interrupt or
temporarily suspend building services and facilities, all without
affecting any of Lessee's obligations hereunder, so long as the Premises
are reasonably accessible; and (d) generally to perform any act relating
to the safety, protection and preservation of the Premises or building.
12. POSSESSION. If Lessor does not deliver possession of the Premises at the
Commencement Date of the term of this Lease, Lessee may give Lessor
written notice of its intention to cancel
Page 3
this Lease if possession is not delivered within ninety (90) days after
receipt of such notice by Lessor. Lessor shall not be liable for any
damages caused by failure to deliver possession of the Premises and
Lessee shall not be liable for any rent until such time as Lessor
delivers possession. A delay of possession shall not extend the
termination date. If Lessor offers possession of the Premises or any
portion thereof prior to the Commencement Date of the term of this
Lease, and if Lessee accepts such early possession, then both parties
shall be bound by all of the covenants and terms contained herein during
such period of early possession including the payment of rent which
shall be pro-rated accordingly and for the number of days of such early
possession.
13. ASSIGNMENT AND SUBLETTING. Lessee shall not either voluntarily or by
operation of law assign, transfer, convey or encumber this Lease or any
interest under it, or sublet to occupy or use the Premises without
Lessor's prior written consent. Lessor reserves the right to recapture
the Premises or applicable portion thereof in lieu of giving its consent
by notice given to Lessee within twenty (20) days after receipt of
Lessee's written request for assignment or subletting. Such recapture
shall terminate this Lease as to the applicable space effective on the
prospective date of assignment or subletting, which shall be the last day
of a calendar month and not earlier than sixty (60) days after receipt of
Lessee's request hereunder. In the event that Lessor shall not elect to
recapture and shall thereafter give its consent, Lessee shall pay Lessor
a reasonable fee, not to exceed One Thousand and No/100 Dollars
($1,000.00) to reimburse Lessor for processing costs incurred in
connection with such consent. Lessor's consent shall not release or
discharge Lessee from future liability under this Lease and shall not
waive Lessor's right to consent to any future assignment or sublease.
Any assignment or subletting without Lessor's consent shall be void and
shall, at Lessor's option, constitute a default under this Lease. A
transfer by the present majority shareholders of ownership or control of
a majority of the voting stock of a corporate Lessee shall be deemed an
assignment.
14. ALTERATIONS. After obtaining the prior written consent of Lessor, Lessee
may make minor alterations, additions and improvements in said Premises
(so long as such alterations, additions or improvements are not visible
from the exterior of the Premises) at its sole cost and expense. Lessee
agrees to save Lessor harmless from any damage, loss, or expense arising
therefrom and to comply with all laws, ordinances, rules and regulations.
Upon termination of this Lease, all alterations, additions and
improvements made in, to or on the Premises (including without limitation
all electrical, lighting, plumbing, heating, air conditioning, and
communications equipment and systems, doors, windows, partitions,
drapery, carpeting, shelving, counters, and physically attached fixtures
unless excluded by written agreement annexed hereto), shall remain upon
and be surrendered as a part of the Premises; provided however, upon
Lessor's request, Lessee shall promptly remove those additions,
alterations, or improvements as may be specified by Lessor, and repair
and restore the Premises to its original condition at Lessee's sole cost
and expense.
15. LIENS. Lessee shall keep the Premises free from any liens arising out of
any work performed, materials furnished, equipment supplied, or
obligations incurred by or on behalf of Lessee. No work performed,
material furnished, equipment supplied or obligations incurred by or on
behalf of Lessee shall be deemed to be for the immediate use and benefit
of Lessor so that no mechanic's lien or other lien shall be allowed
against Lessor's estate in the Premises. Lessee shall provide, at
Lessee's own cost, a waiver of lien signed by any party (including the
Lessee) who commences to perform work, furnish materials, or supply
equipment to the Premises. Lessor does not authorize or consent to the
performance of any work, furnishing of material or supply of equipment
incurred by or on behalf of Lessee prior to Lessee providing Lessor with
the signed
Page 4
waiver of lien referred to above. Lessor may require, at Lessee's sole
cost and expense, a lien release and completion bond in an amount equal
to either the actual contract price or one and one-half times the
estimated cost of any improvements, additions or alterations in the
Premises which Lessee desires to make, to insure Lessor against any
liability for lien and to insure completion of the work.
16. SIGNS. All signs or symbols placed by Lessee in the windows and doors of
the Premises, or upon any exterior part of the building, shall be subject
to Lessor's prior written approval. Prior to termination of this Lease,
Lessee will remove all signs placed by it upon the Premises, and will
repair any damages caused by such removal.
17. INSURANCE.
A. Lessee shall pay for and maintain, during the entire Lease Term,
the following policies of insurance:
(i) Commercial general liability insurance,
including products, completed operations coverage and auto
liability insurance covering Lessee's operations and the
Premises including but not limited to coverage for personal
injuries with limits of not less than $1,000,000 combined
single limit for death, personal injury, and property
damage, per occurrence, including Lessor as an additional
insured. Such policies shall be endorsed to provide
contractual liability insurance covering all liability
assumed by Lessee under the provisions of this Lease and a
copy of said endorsement will be delivered to Lessor prior
to commencement of the Term.
(ii) Special cause of loss or "all risk" perils
and sprinkler leakage property insurance upon all
alterations on the Premises and upon Lessee's property,
including but not limited to Fire and Extended Coverage,
Vandalism and Malicious Mischief, in the amount of one
hundred percent (100%) full replacement cost, including
Lessor as an additional insured, as its interests may
appear, with a loss payable clause in favor of Lessor to
the extent of Lessor's interest in property damaged, except
to the extent proceeds are required to be paid to holders
of mortgages or trust deeds.
B. Each policy provided by Lessee shall expressly provide that it
shall not be subject to cancellation or material change without at
least thirty (30) days prior written notice to Lessor. Lessee
shall furnish Lessor, prior to commencement of the Term, with
insurance certificates and, upon request, copies of such policies
required to be maintained hereunder.
18. INDEMNITY AGAINST LIABILITY FOR LOSS OR DAMAGE BY LESSEE.
A. Lessee assumes all liability for and shall indemnify, hold
harmless and defend Lessor from and against all loss, damage or
expense which the Lessor may sustain or incur, and against any and
all claims, demands, suits and actions whatsoever, including
expense of investigation and litigation, on account of injury to
or death of persons, including without limitation employees of
Lessor, employees of Lessee or its affiliated companies or on
account of damage to or destruction of property, including without
limitation property
Page 5
owned by and property in the care, custody or control of Lessor
during the Term, due to or arising in any manner from:
(i) The acts or negligence of Lessee or
any contractor, subcontractor, or agent of Lessee or
their respective employees;
(ii) The condition, use or operation of the
Premises and/or materials or substances used by
Lessee or any of its contractors, subcontractors or
agents of Lessee or by their respective employees,
regardless of whether or not furnished by Lessor
under this Lease or otherwise;
(iii) Any damage or injury to persons or
property arising out of Lessee's breach or this
Lease, including, but not limited to, obligations of
Lessee under Section 8, Maintenance and Repairs.
X. Xxxxxx shall have no liability to Lessee as a result of loss or
damage to Lessee's property or for death or bodily injury caused
by the acts or omissions of other tenants in the project or by
third parties (including criminal acts).
C. It is mutually understood and agreed that the assumption of
liabilities and indemnification provided for in this Section 18
shall survive any termination of this Lease.
D. Notwithstanding the preceding provisions of this Section 18,
Lessor and Lessee each herewith and hereby release and relieve the
other and waive its entire right of recovery against the other for
loss or damage arising out of or incident to perils insured
against, whether due to the negligence of either party, their
agents, employees, contractors, invitees or otherwise.
19. DAMAGE OR DESTRUCTION. If the Premises or the building in which the
Premises are located shall be damaged or destroyed by fire or other
casualty, Lessor shall have the Option either (a) to repair or rebuild
within one hundred twenty (120) days, or (b) not to repair or rebuild,
and to cancel this Lease on thirty (30) days notice. If Lessor fails to
give Lessee written notice of its election within thirty (30) days from
the date of damage, or if the restoration of the Premises cannot be
completed within one hundred twenty (120) days from date of notice,
Lessee may cancel this Lease at its option on thirty (30) days notice.
During the period of untenantability, rent shall xxxxx in the same ratio
as the portion of the Premises rendered untenantable bears to the whole
of the Premises; provided that if the damage is due to the fault or
neglect of Lessee, there shall be no abatement of rent.
20. EMINENT DOMAIN. If the whole of the Premises shall be taken by any public
authority under the power of eminent domain, or purchased by the
condemnor in lieu thereof, then the term of this Lease shall cease as of
the date possession is taken by such public authority. If only part of
the Premises shall be so taken, the Lease shall terminate only as to the
portion taken, and shall continue in full force and effect as to the
remainder of said Premises, and the monthly rent shall be reduced
proportionately; provided, however, if the remainder of the Premises
cannot be made tenantable for the purposes for which Lessee has been
using the Premises or if more than twenty-five percent (25%) of the
rentable square footage of the Premises shall be so taken, then
Page 6
either party, by written notice to the other, given at least thirty (30)
days prior to the date that possession must be surrendered to the public
authority, may terminate this Lease effective as of such surrender of
possession. If any part of the building other than the Premises shall be
so taken so as to render in Lessor's opinion the termination of this
Lease beneficial to the remaining portion of the building, Lessor shall
have the right within sixty (60) days of said taking to terminate this
Lease upon thirty (30) days written notice to Lessee. In the event of any
taking, whether whole or partial, Lessor shall be entitled to all awards,
settlements, or compensation which may be given for the land and
buildings. Lessee shall have no claim against Lessor for the value of any
unexpired term of this Lease.
21. INSOLVENCY. If Lessee shall be declared insolvent or bankrupt, or if
Lessee's leasehold interest herein shall be levied upon or seized under
writ of any court of law, or if a trustee, receiver or assignee be
appointed for the property of Lessee, whether under operation of State or
Federal statutes, then Lessor may, at its option, immediately, without
notice (notice being expressly waived), terminate this Lease and take
possession of said Premises, without, however, terminating Lessee's
obligations under this Lease.
22. DEFAULT AND RE-ENTRY. If Lessee fails to keep or perform any of the
covenants and agreements herein contained, then the same shall constitute
a breach hereof, and if Lessee has not remedied such breach within three
(3) days after written notice thereof from Lessor if the breach is
non-payment of rent or other charges, or within ten (10) days after
written notice thereof from Lessor in the event of the breach of any
other covenant, then Lessor may, at its option, without further notice or
demand:
(a) Cure such breach for the account and at the expense of Lessee and
such expense shall be deemed additional rent due on the first of
the following month; or
(b) Re-enter the Premises, remove all persons therefrom, take
possession of the Premises and remove all personal property
therein at Lessee's risk and expense and (1) terminate this Lease,
or (2) without terminating the Lease or in any way affecting the
rights and remedies of Lessor or the obligations of Lessee, re-let
the whole or any part of the Premises as agent for Lessee, upon
such terms and conditions as Lessor may deem advisable. In either
event, any moneys received from Lessee and any deposit or other
amounts held by Lessor may first be applied by Lessor to any
damages suffered by Lessor as a result of such default, including
without limitation, costs and expenses incurred on re-entry and
re-letting, any unamortized tenant improvements and commissions,
cleaning, necessary repairs, restoration and alteration, and any
commissions incurred on re-letting, and the balance of such
amounts may be applied toward payment of other sums due to Lessor
hereunder. In the event the Premises are re-let for Lessee's
account, Lessee shall pay to Lessor monthly any deficiency;
however, Lessor shall not be required to pay any excess to Lessee.
Upon termination of this Lease or of Lessee's right to possession,
Lessor has the right to recover from Lessee: (1) The worth of the
unpaid rent that had been earned at the time of such termination;
(2) The worth of the amount of the unpaid rent that would have
been earned after the date of such termination; and (3) Any other
amount, including court, attorney and collection costs, necessary
to compensate Lessor. "The Worth," as used in Section (1) of this
paragraph 22(b) is to be allowing interest at 18% per year. "The
Worth" as used for Section2) of this paragraph 22(b) is to be
computed by discounting the amount at the discount rate of the
Federal Reserve Bank of San Francisco at the time of termination.
The above
Page 7
remedies of Lessor are cumulative and in addition to any other
remedies now or hereafter allowed by law or elsewhere provided
for in this Lease.
23. REMOVAL OF PROPERTY. Any property of Lessee removed by Lessor in
accordance with Section 22 above may be stored by Lessor or may be
deposited on any area adjacent to the building at the sole risk and
expense of Lessee and without any further responsibility of Lessor, and
Lessor may at its sole discretion without removing said property or after
removing said property, without obligation to do so and without notice to
Lessee, sell or dispose of the same at public or private sale for the
account of Lessee, in which event the proceeds therefrom may be applied
by Lessor upon any indebtedness due from Lessee to Lessor. Lessee waives
all claims for damages that may be caused by Lessor re-entering the
Premises and removing or disposing of said property as herein provided.
24. COSTS AND ATTORNEYS' FEES. In the event either party shall commence legal
action to enforce any provision of this Lease, the court shall award to
the prevailing party all reasonable attorneys' fees and all costs
incurred in connection therewith, including fees and costs on appeal. Any
action relating to this Lease shall be brought in the County in which the
Premises are located or, at Lessor's election, in King County,
Washington.
25. SUBROGATION WAIVER. Lessor and Lessee each herewith and hereby release
and relieve the other and waive its entire right of recovery against the
other for loss or damage arising out of or incident to the perils of
fire, explosion or any other perils described in the "all risk" insurance
endorsement approved for use in the state in which the Premises are
situated which occurs in, on or about the Premises, whether due to the
negligence of either party, their agents, employees or otherwise.
26. HOLDING OVER. If Lessee, with the express consent of Lessor, shall hold
over after the expiration of the term of this Lease, Lessee shall remain
bound by all the covenants and agreements herein, except that (a) the
tenancy shall be from month-to-month and (b) the monthly rent to be paid
by Lessee shall be determined by multiplying the monthly rent in effect
preceding such expiration times 150%.
27. SUBORDINATION AND ATTORNMENT; MORTGAGEE PROTECTION.
A. SUBORDINATION NOTICE TO MORTGAGEE. At the request of Lessor,
Lessee shall promptly execute, acknowledge and deliver, all
instruments which may be required to subordinate this Lease to any
existing or future mortgages, deeds of trust and/or other security
documents on or encumbering the Premises or on the leasehold
interest held by Lessor, and to any extensions, renewals, or
replacements thereof, provided that the mortgagee or beneficiary,
as the case may be, shall agree to recognize this Lease in the
event of foreclosure if Lessee is not in default at such time.
B. LESSEE'S CERTIFICATE. Lessee shall at any time and from time to
time upon not less than three (3) days prior written notice from
Lessor execute, acknowledge and deliver to Lessor a statement in
writing (a) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease as so modified is in
full force and effect), and the date to which the rental and other
charges are paid in advance, if any; and (b) acknowledging that
there are not, to Lessee's knowledge, any uncured defaults on the
part of the Lessor or Lessee hereunder,
Page 8
or specifying such defaults if any are claimed; and (c) setting
forth the date of commencement of rents and expiration of the
Lease Term hereof. Any such statement may be relied upon by any
prospective purchaser or encumbrancer of all or any portion of
the Premises of which the Premises are a part.
C. MORTGAGEE PROTECTION CLAUSE. Lessee agrees to notify any mortgagee
and/or trust deed holders, by registered mail, with a copy of any
notice of default served upon the Lessor, provided that prior to
such notice Lessee has been notified in writing (by way of Notice
of Assignment of Rents and Lease, or otherwise) of the addresses
of such mortgagees and/or trust deed holders. Lessee further
agrees that if Lessor shall have failed to cure such default, then
the mortgagees and/or trust deed holders have thirty (30) days
within which to cure such default or if such default cannot be
cured within that time, then such additional times as may be
necessary if within such thirty (30) days any mortgagee and/or
trust deed holder has commenced and is diligently pursuing the
remedies necessary to cure such default (including but not limited
to commencement of foreclosure proceedings if necessary to affect
such cure), in which event this Lease shall not be terminated if
such remedies are being so diligently pursued.
28. SURRENDER OF POSSESSION. Lessee shall, prior to the termination of this
Lease or of Lessee's right to possession, remove from the Premises all
personal property which Lessee is entitled to remove and those
alterations, additions, improvements or signs which may be required by
Lessor to be removed, pursuant to Sections 12 and 14 above, and shall
repair or pay for all damage to the Premises caused by such removal. All
such property remaining and every interest of Lessee in the same shall be
conclusively presumed to have been conveyed by Lessee to Lessor under
this Lease as a xxxx of sale, without compensation, allowance or credit
to Lessee. Lessee shall upon termination of this Lease or of Lessee's
right of possession, deliver all keys to Lessor and peacefully quit and
surrender the Premises without notice, neat and clean, and in as good
condition as when Lessee took possession, except for reasonable wear and
tear as determined by Lessor.
29. LATE PAYMENT AND INTEREST. If any amount due from Lessee is not received
in the office of Lessor on or before the third (3rd) day following the
date upon which such amount is due and payable, a late charge of five
percent (5%) of said amount shall become immediately due and payable,
which late charge Lessor and Lessee agree represents a fair and
reasonable estimate of the processing and accounting costs that Lessor
will incur by reason of such late payment. All past due amounts owing to
Lessor under this Lease, including rent, shall be assessed interest at an
annual percentage rate of eighteen percent (18%) from the date due or
date of invoice, whichever is earlier, until paid.
30. NOTICE. Any notice required to be given by either party to the other
pursuant to the provisions of this Lease or any law, present or future,
shall be in writing, and shall be deemed to have been dully given or sent
if either delivered personally or deposited in the United States Mail,
postage prepaid, registered or certified, addressed to the Lessor at the
address specified for the payment of rent under paragraph 3 of this Lease
or to Lessee at the Premises or to such other address as either party may
designate to the other in writing from time to time:
CheckFree Corporation Commercial Real Estate Company, L.L.C.
0000 X. Xxxx Xx. 0000 0xx Xxxxxx, Xxxxx 0000
Page 9
Xxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxx, Gen. Counsel (000) 000-0000
31. NO WAIVER OR COVENANTS. Time is of the essence of this Lease. Any waiver
by either party of any breach hereof by the other shall not be considered
a waiver of any future similar or other breach.
32. BINDING ON HEIRS, SUCCESSORS AND ASSIGNS. The covenants and agreements
of this Lease shall be binding upon the heirs, executors, administrators,
successors and assigns of both parties hereto, except as hereinabove
provided.
33. LESSOR'S ASSIGNMENT. Lessor shall have the full right to assign this
Lease, without any notice to Lessee, thereby relieving Lessor from all
and any liabilities; provided however, that the assignee assumes all
Lessor's responsibilities as set forth in this Lease.
34. ENVIRONMENTAL, EMISSIONS; STORAGE, USE AND DISPOSAL OF WASTE:
a. EMISSIONS. Lessee shall not (i) discharge, emit or permit to be
discharged or emitted, any liquid, solid or gaseous matter, or any
combination thereof, into the atmosphere, the ground or any body
of water, which does or may pollute or contaminate the same, or
does or may adversely affect the health or safety of persons, or
the use or enjoyment of the Premises; nor (ii) transmit, receive
or permit to be transmitted or received, any electromagnetic,
microwave or other radiation in, on or about the Premises.
b. STORAGE. If, with or without violation of this Lease, Lessee
possesses at the Premises any matter described in Section A above
or any Hazardous Substances (as defined below), Lessee shall store
the same in appropriate leak proof containers and/or areas which
comply with all laws and all prudent practices.
c. DISPOSAL OF WASTE. Lessee shall not keep any trash, garbage,
waste or other refuse on the Premises except in sanitary
containers and shall regularly and frequently remove same from the
Premises. Lessee shall keep all such containers in a clean and
sanitary condition. Lessee shall properly dispose of all sanitary
sewage and shall not use the sewage system for the disposal of
anything except sanitary sewage, nor in excess of capacity.
Lessee shall not cause any obstruction in the sewage disposal
system.
d. COMPLIANCE OF LAW. Notwithstanding any other provision in the
Lease to the contrary, Lessee shall comply with all Laws in
complying with its obligations under this Lease, and in
particular, laws relating to the storage, use and disposal of
Hazardous Substances (as defined below).
e. INDEMNIFICATION FOR BREACH. Lessee shall defend, indemnify and
hold Lessor, the Project and the holder of a trust deed or
mortgage on the Project harmless from any loss, claim, liability
or expense, including, without limitation, attorneys fees and
costs, at trial and/or on appeal and review, arising out of or in
connection with its failure to observe or comply with the
provisions of this Section. This indemnity shall survive the
expiration or earlier termination of the term of the Lease or the
termination of Lessee's right of possession and be fully
enforceable thereafter.
Page 10
f. INDEMNIFICATION REGARDING HAZARDOUS SUBSTANCES. In addition to the
indemnity obligations contained elsewhere herein, Lessee shall
indemnify, defend and hold harmless Lessor, the Premises, the
Project, and the holder of a trust deed or mortgage on the
Project, from and against all claims, losses, damages, monitoring
costs, response costs, liabilities, and other costs expenses
caused by, arising out of, or in connection with, the generation,
release, handling, storage, discharge, transportation, deposit or
disposal in, on, under or about the Premises by Lessee or any of
Lessee's agents of the following (collectively referred to as
"Hazardous Substances"): hazardous materials, hazardous
substances, toxic wastes, toxic substances, pollutants, petroleum
products, underground tanks, oils, pollution, asbestos, PCB's,
radioactive materials, or contaminants, as those terms are
commonly used or as defined by federal, state, and/or local law or
regulation related to protection of health or the environment as
any of same may be amended from time to time, and/or by any rules
and regulations promulgated thereunder. Such damages, costs,
liability and expenses shall include such as are claimed by any
regulating and/or administering agency, any ground lessor or
master lessor of the Project, the holder of any Mortgage or Deed
of Trust on the Project, and/or any successor of the Lessor named
herein. This indemnity shall include (i) claims of third parties,
including governmental agencies, for damages, fines, penalties,
response costs, monitoring costs, injunctive or other relief;
(ii) the costs, expenses or losses resulting from any injunctive
relief, including preliminary or temporary injunctive relief;
(iii) the expenses, including fees of attorneys and experts, of
reporting the existence of Hazardous Substances to an agency of
the State of which the Premises is located or of the United States
as required by applicable laws and regulations; and (iv) any and
all expenses or obligations, including attorney's fees, incurred
at, before and after any administrational proceeding, trial,
appeal and review. This indemnity shall survive the expiration or
earlier termination of the term of the Lease or the termination of
Lessee's right of possession and shall remain fully enforceable
thereafter.
g. INFORMATION. Lessee shall give prior written notice to Lessor of
any use, whether incidental or otherwise, of Hazardous Substances
on the Premises, and shall immediately deliver to Lessor a copy of
any notice of any violation of any Law with respect to such use.
Lessee shall also provide to Lessor, upon request, with any and
all information regarding Hazardous Substances in the Premises,
including contemporaneous copies of all filings and reports to
governmental entities, and any other information requested by
Lessor. In the event of any accident, spill or other incident
involving Hazardous Substances, Lessee shall immediately report
the same to Lessor and supply Lessor with all information and
reports with respect to the same. All information described herein
shall be provided to Lessor regardless of any claim by Lessee that
it is confidential or privileged.
35. ENTIRE AGREEMENT. It is expressly understood and agreed by Lessor
and Lessee that there are no promises, agreements, conditions,
understandings, inducements, warranties, or representations, oral
or written, express or implied, between them, other than as herein
set forth and that this Lease shall not be modified in any manner
except by an instrument in writing executed by the parties.
LESSOR:
COMMERCIAL REAL ESTATE COMPANY, L.L.C.
Page 11
By:__________________________
Xxxxx X. Xxxxxxxx
Its: Manager
Date:________________________
LESSEE:
CHECKFREE CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Its: CFO
Date: 3-20-96
Page 12
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxxx X.
Xxxxxxxx is the person who appeared before me, a Notary Public in and for the
State of Washington duly commissioned and sworn, and acknowledged that he is
the Manager of COMMERCIAL REAL ESTATE COMPANY, L.L.C., a Washington limited
liability company, who executed the within and foregoing instrument, and
acknowledged the instrument to be the free and voluntary act and deed of said
company for the uses and purposes therein mentioned, and on oath stated that
affiant is authorized to execute said instrument on behalf of said company.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the
day and year first above written.
______________________________________________
Notary Public in and for the
State of _____________________________________
residing at __________________________________
Commission expires ___________________________
Print Name ___________________________________
STATE OF GEORGIA )
) ss.
COUNTY OF GWINNETT )
I certify that I know or have satisfactory evidence that Xxxxxx X.
Xxxxxx is the person who appeared before me, a Notary Public in and for the
State of Georgia duly commissioned and sworn, and acknowledged that he/she is
the Vice President of CHECKFREE CORPORATION, an Ohio corporation, who executed
the within and foregoing instrument, and acknowledged the instrument to be the
free and voluntary act and deed of said corporation for the uses and purposes
therein mentioned, and on oath stated that affiant is authorized to execute
said instrument on behalf of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal the
day and year first above written.
[notarial seal]
/s/ Xxxxxxxx Xxxxxxxxx
----------------------------------------------
Notary Public in and for the
State of Georgia
residing at 000 Xxxxxx Xx. Xxxxx Xxx. XX 00000
Commission expires May 25, 199[?]
Print Name Xxxxxxxx Xxxxxxxxx
Page 13
EXHIBIT A
FLOOR PLAN OF PREMISES
To Lease made on this 20 day of March, 1996, between Commercial Real Estate
Company, L.L.C., a Washington limited liability company (the "Lessor") and
CheckFree Corporation, an Ohio corporation (the "Lessee").
The Premises of approximately 11,350 Square Feet as outlined below. Lessee and
Lessor acknowledge the approximate nature of this Square Foot Calculation.
[FLOOR PLAN GRAPHIC]
XXXXXX BUSINESS CENTER - Third Floor Plan
Page 14
EXHIBIT B
LEGAL DESCRIPTION
Description of the Property
Xxxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxx 00000
To Lease made on this 20 day of March, 1996, between Commercial Real Estate
Company, L.L.C., a Washington limited liability company (the "Lessor") and
CheckFree Corporation, an Ohio corporation, (the "Lessee").
LEGAL DESCRIPTION:
A portion of the Southeast one-quarter of Section 8, Township 1 South, Range 1
West of the Willamette Meridian, in the City of Beaverton, County of Washington
and State of Oregon, said portion being more particularly described as follows:
Beginning at a point in the South right of way line of X.X. Xxxxxxxx Way
which point bears South 03DEG. 40'01" East 12.94 feet from the Washington
County Surveyor's Monument at the Southwest corner of the Xxxxxx X. Xxxxxx
Donation Land Claim No. 42, and running thence South 69DEG. 42'36" East,
along said right of way line, 1055.83 feet to the intersection with the West
right of way line of X.X. Xxxxxx Blvd., (County road No. 2065); thence 34.19
feet along the arc of a 1864.86 foot radius non-tangent curve to the right
(the long chord of which bears South 08DEG. 13'43" East 34.19 feet): thence
continuing along said West right of way line along a 45.00 foot Westerly
offset to a 500.00 foot center line spiral curve to the right (center line
data - S = 7DEG. 30'00" o= 0.06) the offset chord bears South 02DEG. 42'30"
East 493.71 feet; thence South 00DEG. 12'12" East 132.15 feet; thence North
85DEG. 41'39" West 555.91 feet; thence North 04DEG. 12'38" East 56.73 feet;
thence North 68DEG. 45'17" West 241.94 feet; thence North 65DEG. 55'12" West
88.76 feet: thence North 68DEG. 45'30" West 13.88 feet; thence North 68DEG.
45'12" West 161.51 feet; thence North 73DEG. 25' 54" West 21.94 feet; thence
North 74DEG. 47'12" West 22.07 feet; thence South 89DEG. 41'24" West 129.96
feet; thence South 89DEG. 30'48" West 78.83 feet, more or less, to the most
Easterly Southeast corner of that tract conveyed to the Oregon Railway
Company by Deed recorded in Book 540, Page 617, Deed Records of said County;
thence North 19DEG. 03'26" East, along the East line of said railway tract,
782.94 feet to the point of beginning.
TOGETHER WITH an easement for sanitary sewer specifically set out on Page 909
and water lines specifically set out on Pages 907 and 908 in that certain
Memorandum of Lease recorded December 6, 1971 in Book 845, Pages 895 through
912, Deed Records of Washington County Oregon.
ALSO TOGETHER WITH an easement for sewer lines as set forth in that certain
easement recorded February 17, 1981 as Recorder's Fee Xx. 00000000, Xxxx Xxxxxxx
xx Xxxxxxxxxx Xxxxxx.
Page 15
EXHIBIT C
RULES AND REGULATIONS
To Lease made on this 20 day of March, 1996, between Commercial Real Estate
Company, L.L.C., a Washington limited liability company (the "Lessor") and
CheckFree Corporation, an Ohio corporation, (the "Lessee").
1. Any directory provided by Lessor for the building will be for the display
of the name and location of tenants, and Lessor reserves the right to
exclude any other names.
2. Lessee shall not place any new or re-key any existing locks on any doors
of the Premises, or change any plumbing or wiring without the prior
written consent of Lessor. All keys shall be obtained from Lessor and
Lessee shall not, from any other source, duplicate keys. Lessee, upon
termination of the tenancy, shall deliver to Lessor all keys which have
been furnished, or shall pay Lessor the cost of changing the lock(s)
opened by any lost key(s) if Lessor deems it necessary to make such
change. Lessor, its employees and agents may retain a passkey to the
Premises.
3. The common area sidewalks, halls, passages, exits, entrances, elevators
and stairways shall not be obstructed by Lessee or used for any purpose,
including storage or placement of trash, other than for ingress to and
egress from the Premises. The halls, passages, exits, entrances,
elevators, stairways, balconies and roof are not for the use of the
general public and Lessor shall in all cases retain the right to control
and prevent access thereto by all persons whose presence, in the judgment
of Lessor, shall be prejudicial to the safety, character, reputation and
interests of the Building and its tenants, provided that nothing herein
contained shall be construed to prevent such access to persons with whom
Lessee normally deals in the ordinary course of Lessee's business, unless
such persons are engaged in illegal activities, intoxicated or violate
any of these Rules and Regulations. Lessee, Lessee's employees or
invitees shall not go upon the roof of the Building.
4. Lessee shall not make or permit any use of the Premises which may emit
noise, odor or vibrations from the Premises which are objectionable to
Lessor or other occupants of the Building. Lessee shall not use or permit
any part of its Premises to be used for lodging or sleeping.
5. The toilet rooms, urinals, washbowls and other apparatus shall not be
used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein and
the expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Lessee who, or whose
employees or invitees, shall have caused it.
6. Lessee shall not use or keep in the Premises or the building, any
kerosene, gasoline or flammable or combustible fluid or materials, or use
any method of heating or air conditioning other than supplied by Lessor.
7. Lessee shall not do or permit to be done within the Premises anything
which would unreasonably annoy or disturb or interfere with the rights of
other tenants of the Building. Lessee shall not solicit or canvass any
occupant of the building.
Page 16
8. Lessee shall not commit or permit to be committed any waste, damage or
injury to the Premises or other Premises within the Building, or common
areas within and adjoining the Building. Such waste, damage or injury
shall be repaired at Lessee's sole cost and expense.
9. Lessee shall not waste electricity or water and agrees to cooperate fully
with Lessor to assure the most effective and economical use of utility
services provided to the Building by Lessor.
10. Lessee shall keep Lessor advised of the current telephone numbers of
Lessee's employees who may be contacted in emergency, i.e., fire,
break-in, vandalism, etc. If Lessor shall deem it necessary to respond to
such emergency in Lessee's behalf, Lessee shall pay all costs incurred
for services ordered by Lessor to secure or otherwise protect the
Premises and the contents thereof, including a premium charge for any
time spent by Lessor's employees in responding to such emergency.
11. Lessee shall see that the doors of the Premises are closed and securely
locked before leaving the Building and must observe strict care and
caution that all water faucets or water apparatus are entirely shut off
before Lessee's employees leave the Premises, and that all electricity
shall be shut off, so as to prevent waste or damage, and for any default
or carelessness Lessee shall make good all injuries sustained by Lessor,
other tenants, or occupants of the Building.
12. Lessee shall not place upon or install on, or beside, the windows, walls
or exterior doors of the Premises or any part of the Premises visible
from the exterior of the Premises any object including without limitation
signs, symbols, canopies, awnings, window coverings or other advertising
or decorative material, without obtaining the prior written consent of
Lessor.
13. Lessee shall not overload the floor of the Premises or xxxx, drive nails,
screw, or drill into the partitions, woodwork or plaster, or in any way
deface the Premises or any part thereof. Lessee shall not bore holes, cut
or string wires, or lay floor tile, carpet or other floor covering in or
around the Premises in any manner except as approved in writing by
Lessor. The expense of repairing any damage resulting from a violation of
this rule or removal of any floor covering shall be borne by the Lessee
by whom, or by whose contractors, employees, or invitees, the damage
shall have been caused.
14. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of
Lessor.
15. Lessee agrees that is shall comply with all fire, life safety, security
and other regulatory policies and procedures that may be issued from time
to time by Lessor.
16. Without the written consent of Lessor, Lessee shall not use the name of
the building in connection with or in promoting or advertising the
business of Lessee, except as Lessee's address.
17. No furniture, freight, or equipment of any kind shall be brought into the
Building without the consent of Lessor and all moving of the same into or
out of the Building shall be done at such time and in such manner as
Lessor shall designate. Lessor shall have the right to prescribe the
right, size and position of all safes and other heavy equipment brought
into the Building. Flooring under safes or other heavy objects must be
reinforced or a means of proper weight distribution provided, at Lessee's
sole expense, if, in the opinion of the Lessor, such precautions are
necessary. Any damage done to the Building by moving or maintaining any
such safe or other
Page 17
property shall be repaired at the sole expense of Lessee. There shall
not be used in any space, or in the public halls of the Building,
either by Lessee or others, any pallet jacks or hand trucks, except
those equipped with rubber tires and side guards.
18. Lessee shall not employ or permit access to any person(s) for the purpose
of cleaning the Premises unless otherwise agreed to by Lessor. Lessee
shall not cause any unnecessary labor by reason of Lessee's carelessness
or indifference in the preservation of good order and cleanliness. Lessor
shall in no way be responsible to Lessee for any loss of property on the
Premises, however occurring, or for any damage done to the effects of
Lessee by the janitor or any other employee or any other person.
19. Lessor reserves the right, by written notice to Lessee, to rescind,
substitute, alter or waive any rule or regulation at any time prescribed
for the building when, in Lessor's judgment, it is necessary, desirable
or proper for the best interest of the Building and its tenants.
Page 18
EXHIBIT D
STANDARDS FOR UTILITIES AND SERVICES
To Lease made on this 20 day of March, 1996, between Commercial Real Estate
Company, L.L.C., a Washington limited liability company (the "Lessor") and
CheckFree Corporation, an Ohio corporation, (the "Lessee").
The following Standards for Utilities and Services are in effect. Lessor
reserves the right to adopt nondiscriminatory modifications and additions
hereto.
1. Non-attended automatic elevator facilities.
2. Monday through Friday, except holidays, from 8 a.m. to 6 p.m (and other
times for the sum of $20.00 per hour), ventilate the Premises and furnish air
conditioning or heating on such days and hours, when in the reasonable judgment
of Lessor it may be required for the comfortable occupancy of the Premises.
Lessee agrees to cooperate fully at all times with Lessor, and to abide by all
reasonable regulations and requirements which Lessor may prescribe for the
proper function and protection of said air conditioning system. Lessee agrees
not to connect any apparatus, device, conduit or pipe to the building chilled
and hot water air conditioning supply lines. Lessee further agrees that neither
Lessee nor its, employees, agents, visitors, licensees or contractors shall at
any time enter mechanical installations or facilities of the Building or adjust,
tamper with, touch or otherwise in any manner affect said installations or
facilities. The cost of maintenance and service calls to adjust and regulate the
air conditioning system shall be charged to Lessee if the need for maintenance
work results from either Lessee's adjustment of room thermostats or Lessee's
failure to comply with its obligations under this section. Such work shall be
charged at hourly rates equal to then-current journeymen's wages to air
conditioning mechanics.
3. During the usual business hours on business days, electric current as
required by the building standard office lighting and fractional horsepower
office business machines in an amount not to exceed 3.5 xxxxx per square foot.
Lessee agrees, should its electrical installation or electrical consumption be
in excess of the aforesaid quantity or extend beyond normal business hours, to
reimburse Lessor monthly for the measured consumption at the average cost per
kilowatt hour charged to the building during the period. If a separate meter is
not installed at Lessee's cost, such excess costs will be established by an
estimate agreed upon by Lessor and Lessee, and if the parties fail to agree, as
established by an independent licensed engineer. Lessee agrees not to use any
apparatus or device in, or upon, or about the Premises which may in any way
increase the amount of such services usually furnished or supplied to said
Premises, and Lessee further agrees not to connect any apparatus or devise with
wires, conduits or pipes, or the other means by which such services are
supplied, for the purpose of using additional or unusual amounts of such
services without the prior written consent of Lessor. Should Lessee use the same
to excess, the refusal on the part of Lessee to pay upon demand of Lessor the
amount established by Lessor for such excess charge shall constitute a breach of
the obligation to pay rent under this Lease and shall entitle Lessor to the
rights therein granted for such breach. At all times Lessee's use of electric
current shall never exceed the capacity of the feeders to the building or the
risers or wiring installation and Lessee shall not install or use or permit the
installation or use of any unusually high weight or high electrical consumption
computer or electronic data processing equipment in the Premises without the
prior written consent of Lessor.
4. Provide janitor service to the Premises, provided the same are used
exclusively as offices, and are kept reasonably in order by Lessee, and if to be
kept clean by Lessee, no one other than persons approved
Page 19
by Lessor shall be permitted to enter the Premises for such purposes. If the
Premises are not used exclusively as offices, they shall be kept clean and in
order by Lessee, at Lessee's expense, and to the satisfaction of Lessor, and
by persons approved by Lessor. Lessee shall pay to Lessor the cost of removal
of any of Lessee's refuse and rubbish to the extent that the same exceeds the
refuse and rubbish usually attendant upon the use of the Premises as offices.
Lessor reserves the right to stop service of the elevator, plumbing,
ventilation, air conditioning and electric systems, when necessary, by reason of
accident or emergency or for repairs, alterations or improvements, in the
judgment of Lessor desirable or necessary to be made, until said repairs,
alterations or improvements, shall have been completed, and shall further have
no responsibility or liability for failure to supply elevator facilities,
plumbing, ventilation, air conditioning or electric service. It is expressly
understood and agreed that any covenants, express or implied, for Lessor to
furnish any service for the benefit of Lessee shall not be deemed breached if
Lessor is unable to furnish or perform the same by virtue of a strike or labor
trouble or any other cause whatsoever beyond Lessor's reasonable control.
5. Lessee shall not use or install in the Premises any hear generating
equipment, except as specifically authorized herein, or installed pursuant to
the Work Letter Agreement, without Lessor's prior written consent. The inclusion
of this restriction is to ensure that the HVAC system is adequate to service the
Building and the various uses of tenants that occupy the Building.
Page 20
EXHIBIT E
RIDERS TO LEASE
To Lease made on this 20 day of March, 1996, between Commercial Real Estate
Company, L.L.C., a Washington limited liability company (the "Lessor") and
CheckFree Corporation, an Ohio corporation, (the "Lessee").
1. RIGHT OF FIRST OFFER
Provided Lessee has not been in default of any term or condition of the
Lease, Lessee shall have the Right of First Offer to lease approximately
32,000 square feet of space located in Building 1, of Xxxxxx Business
Center, (outlined on Exhibit F, Floor Plan of Right of First Offer Space)
subject to any rights existing prior to the execution of this Lease.
Lessee shall have the Right of First Offer for the term of the Lease.
Prior to entering into negotiations on the space that Lessee has a Right
of First Offer, Lessor shall provide Lessee with written notification
specifying when the space shall be available for occupancy and the terms
and conditions under which Lessor will lease the space. Lessee shall
respond within five (5) business days of written notification by Lessor
if Lessee wishes to lease the space. If Lessee shall not respond within
five (5) business days, Lessee shall be deemed to have passed on the
offer to lease the space. Should Lessee accept such offer to lease,
Lessee shall enter into a Lease for the space.
2. LESSEE IMPROVEMENT ALLOWANCE
Lessor shall provide Lessee with a Lessee Improvement Allowance of up
to $5.00 per square foot ($56,750.00) to improve the Premises. This
Lessee Improvement Allowance shall be used by Lessee to recarpet,
repaint and/or remodel the Premises. Such Lessee Improvements will be
based upon a space plan mutually acceptable to Lessor and Lessee.
Lessee Improvement costs to the Premises in excess of this Lessee
Improvement Allowance will be at Lessee's sole cost and expense. All
improvements to the Premises shall conform to the provisions of
Exhibit G, Work Letter Agreement. In addition to this Lessee
Improvement Allowance, Lessor shall be responsible for the cost of
demolishing the Premises as provided in the Construction Drawings and
providing American with Disabilities Act improvements to the Premises
as reasonably required by the City of Beaverton, Oregon.
Page 21
EXHIBIT F
FLOOR PLAN OF RIGHT OF FIRST OFFER SPACE
To Lease made on this 20 day of March, 1996, between Commercial Real Estate
Company, L.L.C., a Washington limited liability company (the "Lessor") and
CheckFree Corporation, an Oregon corporation, (the "Lessee").
The Premises of approximately 32,000 Square Feet as outlined below. Lessee and
Lessor acknowledge the approximate nature of this Square Foot Calculation.
[XXXXXX BUSINESS CENTER - First Floor Plan Graphic]
Page 22
EXHIBIT G
WORK LETTER AGREEMENT
To Lease made on this 20 day of March , 1996, between Commercial Real Estate
Company, L.L.C., a Washington limited liability company (the "Lessor") and
CheckFree Corporation, an Ohio corporation (the "Lessee").
1. Lessor shall, at its expense, at a total cost not to exceed Fifty-six
Thousand Seven Hundred Fifty and No/100 Dollars ($56,750.00), complete
the construction of the improvements to the Premises as described and
delineated in a space plan mutually acceptable to Lessor and Lessee, as
provided by Lessee. Lessee Improvement Costs to the Premises in excess
of this Lessee Improvement Allowance of $56,750.00 shall be Lessee's
responsibility. Lessor shall cause to be prepared final drawings
("Construction Drawings") for the Lessee Improvements that are consistent
with and are logical evolutions of the space plans. As soon as such
Construction Drawings are completed, Lessor shall deliver the same to
Lessee for approval. Lessee shall promptly review and approve the
Construction Drawings within two (2) days after the date of receipt
thereof and shall initial two (2) copies of the Construction Drawings as
indication of its approval thereof. Lessee's approval of the
Construction Drawings shall constitute Lessor's authorization to complete
the Lease Improvements in accordance with such Construction Drawings. If
Lessee shall request any change in the Construction Drawings, Lessor
shall promptly notify Lessee in writing of the additional costs of
construction of the Lessee Improvements required by such change, and
Lessee shall accompany its approval of the Construction Drawings with a
check made payable to Lessor in the amount of the authorized excess
costs. If Lessor does not receive written authorization, and Lessee's
check for any additional costs incurred as a result of Lessee's request
for changes in the Construction Drawings, within three (3) business days
after the date of receipt of notice from Lessor of the additional cost of
construction required by such change, then Lessor may, at its option,
terminate the Lease by giving written notice of such termination to
Lessee. If Lessor does not elect to terminate the Lease, Lessor shall
not be obligated to commence work on the Premises, and Lessee shall be
charged withany delay in completion of the Premises.
2. Lessee is responsible for the suitability of the design and function of
the Lessee Improvements for Lessee's needs and business. Lessee shall
also be responsible for procuring or installing in the Premises any trade
fixtures, equipment, furniture, furnishings, telephone equipment or other
personal property (collectively, "Personal Property") to be used in the
Premises by Lessee, and the cost of such Personal Property shall be paid
by Lessee. Lessee shall conform to the Building's wiring standards in
installing any telephone and computer equipment and shall be subject to
any and all rules of the site during construction of the Lessee
Improvements.
3. If Lessee shall request any change, addition or alteration in the plans,
the Building standards or the approved Construction Drawings, Lessor
shall promptly give Lessee a written estimate of (a) the cost of
engineering and design services to prepare a change order ("Change
Order") in accordance with such request, (b) the cost of the work to be
performed pursuant to such Change Order, and (c) the time delay expected
because of such requested Change Order. Within two (2) business days
following Lessee's receipt of the foregoing written estimate, Lessee
shall notify Lessor in writing whether it approves such written estimate.
If Lessee approves such written estimate, Lessee shall accompany such
approval with a good check made payable to Lessor in the
Page 23
amount of the estimated cost of preparing the Change Order and
performing the work thereof, and the foregoing shall constitute
Lessor's authorization to proceed. If such written authorization and
check are not received by Lessor within such two (2) business days
period, Lessor shall not be obligated to prepare the Change Order or
perform any work in connection therewith. Upon completion of the work
of the Change Order and submission of the final cost thereof by Lessor
to Lessee, Lessee shall promptly pay any such additional amounts due
Lessor.
4. If the completion of the Lessee Improvements in the Premises is delayed
(i) at the request of Lessee, (ii) by Lessee's failure to comply with the
foregoing provisions, (iii) by changes in the work requested (whether or
not Lessee authorizes Lessor to proceed therewith) or ordered by Lessee
or by extra work ordered by Lessee, or (iv) because Lessee chooses to
have additional work performed by Lessor (each, a "Lease Delay"), then
Lessee shall be responsible for all costs and expenses occasioned by such
delays, including, without limitation, any costs and expenses
attributable to increases in labor or materials, and there shall be no
delay in the commencement of Lessee's obligation to pay rent if the
completion of the Lessee Improvements is delayed as a result of the
foregoing.
5. Lessee may, with Lessor's written consent, enter the Premises prior to
the Commencement Date solely for the purpose of installing Lessee's
Personal Property and equipment as long as such entry does not interfere
with the orderly construction and completion of the Premises. Lessee
shall notify Lessor of its desired time(s) of entry and shall submit for
Lessor's approval the scope of the work to be performed and the name(s)
of the contractor(s) who will perform such work. Lessee hereby
indemnifies and agrees to protect, defend and hold Lessor, any mortgagee,
ground lessor or beneficiary of a mortgage, ground lease or deed of trust
related to the Premises or the Building harmless from and against any and
all suits, claims, actions, losses, costs or expenses (including claims
for worker's compensation) for any nature whatsoever, together with
reasonable attorney fees for counsel of Lessor's choice, arising out of
or in connection with the installation of Lessee's Personal Property or
equipment (including, but not limited to, claims for breach of warranty,
personal injury or property damage).
LESSOR: COMMERCIAL REAL ESTATE COMPANY, L.L.C.
---------------------------
Xxxxx X. Xxxxxxxx
Manager
LESSEE: CHECKFREE CORPORATION
----------------------------------
/s/ Xxxxxx X. Xxxxxx
----------------------------------
CFO
Page 24
EXHIBIT H
SPACE PLAN OF PREMISES
To Lease made on this 20 day of March, 1996, between Commercial Real Estate
Company, L.L.C., a Washington limited liability company (the "Lessor") and
CheckFree, Inc., an Oregon corporation (the "Lessee").
The Premises of approximately 11,350 Square Feet is planned as follows:
Page 25
