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EXHIBIT 10.13
LEASE
BY AND BETWEEN
WESTMOOR BUSINESS PARK LTD, LLLP,
A COLORADO LIMITED LIABILITY LIMITED PARTNERSHIP
(LANDLORD)
AND
CHANNELPOINT, INC., A COLORADO CORPORATION
(TENANT)
FOR
WESTMOOR TECHNOLOGY PARK
WESTMINSTER, COLORADO
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BUILDING LEASE
LEASE SUMMARY
1. Landlord: WESTMOOR BUSINESS PARK LTD., LLLP, a Colorado limited
liability limited partnership
2. Tenant: ChannelPoint, Inc., a Colorado corporation
3. Guarantor: N/A
4. Premises: 00000 Xxxxxxxx Xxxxx, Xxxxx 000
5. Rentable Square Feet: 9,040
6. Commencement Date: September 1, 1999
7. Expiration Date: August 31, 2004
8. Term: Five (5) Years
9. Rent Commencement Date: September 1, 1999
10. Initial Base Rent (Annually): $13.80 per rentable square foot
11. Initial Base Rent (Monthly): $1.15 per rentable square foot
12. Increase in Base Rent: See paragraph 3
13. Security Deposit: $10,769.00
14. Parking Spaces: 5 per 1,000 USF
15. Tenant's Pro Rata Share of the Building: 9.23%
16. Option on Additional Space: See Addendum
17. Option to Renew: None
18. Landlord Broker: Xxxxxxxxx Xxxx Company
19. Tenant Broker: Prime West Real Estate Services
20. Landlord Notices: Westmoor Business Park, Ltd., LLLP
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. XxXxxxxxxx
21. Tenant Notices: ChannelPoint, Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxx
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ADDENDUM
EXHIBITS:
A Premises
A-1 Method of Calculation
B Legal Description
C Estoppel and Commencement Date Certificate
D Work Letter Agreement
D-l Landlord's Core and Shell Work
E Rules and Regulations
F Intentionally Deleted
Note: This Lease Summary does not in any way modify the terms of the Lease, but
rather is for information purposes only. The Lease should be consulted for
the specific terms of the Lease Agreement.
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TABLE OF CONTENTS
Page
1. Premises .......................................... 1
2. Term .............................................. 1
3. Rent .............................................. 1
4. Security Deposit .................................. 2
5. Rent Adjustment ................................... 2
6. Character of Occupancy ............................ 6
7. Services and Utilities ............................ 7
8. Quiet Enjoyment ................................... 8
9. Maintenance and Repairs ........................... 8
10. Alterations and Additions ......................... 9
11. Entry by Landlord ................................. 10
12. Mechanic's Liens .................................. 10
13. Damage to Property, Injury to Persons ............. 10
14. Insurance ......................................... 11
15. Damage or Destruction to Building ................. 12
16. Condemnation ...................................... 13
17. Assignment and Subletting ......................... 13
18. Estoppel Certificate .............................. 15
19. Default ........................................... 15
20. Completion of Premises ............................ 18
21. Removal of Tenant's Property ...................... 19
22. Holding Over ...................................... 19
23. Parking and Common Areas .......................... 19
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24. Surrender and Notice .............................. 20
25. Acceptance of Premises by Tenant .................. 20
26. Subordination and Attornment ...................... 20
27. Payments After Termination ........................ 21
28. Authorities for Action and Notice ................. 21
29. Liability of Landlord ............................. 22
30. Brokerage ......................................... 22
31. Taxes ............................................. 22
32. Substitution of Premises .......................... 23
33. Rights Reserved to Landlord ....................... 23
34. Force Majeure Clause .............................. 23
35. Signage ........................................... 24
36. Attorneys' Fees ................................... 24
37. Hazardous Materials ............................... 24
38. Americans with Disabilities Act ................... 25
39. Bankruptcy or Insolvency .......................... 25
40. Miscellaneous ..................................... 26
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BUILDING LEASE
THIS LEASE is made this 12th day of July 1999, between WESTMOOR BUSINESS
PARK LTD., LLLP, a Colorado limited liability limited partnership, ("Landlord")
and CHANNELPOINT, INC., a Colorado corporation ("Tenant").
1. Premises: Landlord hereby leases to Tenant those certain premises
designated on the floorplan(s) attached hereto as Exhibit A and incorporated
herein by this reference (the "Premises"), consisting of a total of
approximately 9,040 square feet of space (Rentable Area) on the second floor(s),
suite(s) 210 of the building known as Building Three ("Building"), located in
Westmoor Technology Park ("Westmoor Technology Park") at 00000 Xxxxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxx 00000 located on the real property more particularly
described on Exhibit B attached hereto and incorporated herein by this
reference, together with a non-exclusive right, subject to the provisions
hereof, to use all appurtenances thereunto, including, but not limited to,
parking areas and any other areas designated by Landlord for use by tenants of
the Building (the Building, real property on which the same is situated, parking
areas, other areas and appurtenances are hereinafter collectively sometimes
called the "Building Complex"). For purposes of this Lease, "Rentable Area" of
the Premises shall mean and refer to the area of the Premises, as determined by
Landlord's architect, utilizing the methodology of calculation outlined on
Exhibit A-l consistently applied in the Building. The exact square footage of
the Premises shall be calculated by Landlord's architect at the time the
construction documents for the Premises have been completed. This Lease is
subject to the terms, covenants and conditions set forth herein and Tenant and
Landlord each covenant as a material part of the consideration for this Lease to
keep and perform each and all of said terms, covenants and conditions to be kept
and performed by them.
2. Term:
(a) The term of this Lease shall be for sixty (60) months (the "Primary
Lease Term") commencing at 12:01 a.m. on September 1, 1999 (the "Commencement
Date") and terminating at 12:00 midnight on August 31, 2004 (the "Termination
Date"), unless sooner terminated pursuant to the terms hereof. In the event the
Premises are not "Ready for Occupancy" as such term is defined in Paragraph 20
hereof, the Commencement Date shall mean and refer to the date the Premises are
Ready for Occupancy.
(b) If, as a result of the postponement or acceleration of the
Commencement Date, the Primary Lease Term would begin other than on the first
day of the month, Tenant shall pay proportionate rent at the same monthly rate
set forth herein (also in advance) for such partial month and all other terms
and conditions of this Lease shall be in force and effect during such partial
month, and the end of the Primary Lease Term hereof shall be adjusted to a date
which is the last day of the month sixty (60) months after the Commencement
Date. Tenant agrees to execute and deliver to Landlord, in form attached hereto
as Exhibit C, an Estoppel and Commencement Date Certificate, within ten (10)
days of the date the Primary Lease Term commences, certifying as to the actual
commencement and termination dates of the Primary Lease Term, the rent
commencement date, if different, and such other matters as may be required by
Landlord.
3. Rent: Tenant shall pay to Landlord, rent for the Premises ("Base Rent")
as follows:
Period (by month) Annual Base Rent Monthly Base Rent Rate/RSF
----------------- ---------------- ----------------- --------
1 - 36 $124,752.00 $10,396.00 $13.80
37 - 60 $135,961.60 $11,330.13 $15.04
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All installments of Base Rent shall be payable in advance, on the first (1st)
day of each calendar month during the term hereof. Rent for the first and last
months of the term hereof shall be prorated based upon the number of days during
each of said months that the Lease term was in effect. One monthly installment
of Base Rent shall be due and payable on the date of execution of this Lease by
Tenant. All Base Rent shall be paid without notice, demand, deduction or offset,
at the office of Landlord or to such other person or at such other place as
Landlord may designate in writing. Tenant shall pay to Landlord as "Additional
Rent" all other sums due under this Lease. All payments of Base Rent and
Additional Rent shall be paid in United States currency.
4. Security Deposit: It is agreed that Tenant, concurrently with the
execution of this Lease, has deposited with Landlord, and will keep on deposit
at all times during the term hereof, the sum of Ten Thousand Seven Hundred
Sixty-nine Dollars and No/100 ($10,769.00), the receipt of which is hereby
acknowledged, as security for the payment by Tenant of the rent and all other
sums herein agreed to be paid and for the faithful performance of all the terms,
conditions and covenants of this Lease. If, at any time during the term hereof,
Tenant shall be in default in the performance of any provisions of this Lease,
Landlord shall have the right, but shall not be obligated, to use said deposit,
or so much thereof as necessary, in payment of any rent in default,
reimbursement of any expense incurred by Landlord, and in payment of any damages
incurred by the Landlord by reason of Tenant's default. In such event, Tenant
shall, on written demand of Landlord, forthwith remit to Landlord a sufficient
amount in cash to restore said deposit to its original amount. In the event said
deposit has not been utilized as aforesaid, said deposit, or as much thereof as
has not been utilized for such purposes, shall be refunded to Tenant without
interest, within sixty (60) days after the termination of this Lease upon full
performance of this Lease by Tenant and vacation of the Premises by Tenant.
Landlord shall have the right to commingle said deposit with other funds of
Landlord. Landlord may deliver the funds deposited herein by Tenant to any
purchaser of Landlord's interest in the Premises in the event such interest is
sold, and thereupon Landlord shall be discharged from further liability with
respect to such deposit. If the claims of Landlord exceed the amount of said
deposit, Tenant shall remain liable for the balance of such claims.
5. Rent Adjustment:
(a) The following terms shall have the following meanings with respect
to the provisions of this Paragraph 5:
(1) "Building Rentable Area" shall mean all rentable space available
for lease in the Building, as determined by Landlord's architect, utilizing the
methodology of calculation as outlined on Exhibit A-1 and consistently applied
to the Building. If there is a significant change in the aggregate Building
Rentable Area, of a permanent nature, as a result of an addition to the
Building, partial destruction thereof or similar circumstance, Landlord's
accountants shall determine and make an appropriate adjustment to the provisions
herein.
(2) "Tenant's Pro Rata Share" shall mean a fraction, the numerator
of which is the Rentable Area of the Premises (i.e., 9,040 square feet) and the
denominator of which is the Building Rentable Area (i.e., 97,916 feet), and is
equal to 9.23%. At such time, if ever, any space is added to or subtracted from
the Premises pursuant to the terms of this Lease, Tenant's Pro Rata Share shall
be increased or decreased accordingly.
(3) "Operating Expenses" shall mean:
A. All operating expenses of any kind or nature which are
necessary, ordinary or customarily incurred with respect to the operation and
maintenance of the Building Complex as determined in accordance with generally
accepted accounting principles and shall include, but not be limited to:
(i) Costs of supplies, including but not limited to the cost
of "relamping" all tenant lighting as the same may be required from time to
time;
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(ii) Costs incurred in connection with obtaining and
providing energy for the Building Complex, including but not limited to costs of
propane, butane, natural gas, steam, electricity, solar energy and fuel oils,
coal or any other energy sources as well as costs for heating, ventilation, and
air conditioning services ("HVAC");
(iii) Costs of water and sanitary and storm drainage
services;
(iv) Costs of janitorial services;
(v) Costs of Security services or systems;
(vi) Costs of general maintenance and repairs, including
costs under HVAC and other mechanical maintenance contracts; and repairs and
replacements of equipment used in connection with such maintenance and repair
work;
(vii) Costs of maintenance and replacement of landscaping;
and costs of maintenance, repair, striping and repaving of parking areas, common
areas, plazas and other areas used by tenants of the Building Complex,
exclusively or in common with others, including trash and snow removal;
(viii) Any fees, costs or assessments imposed by any property
owners association;
(ix) Insurance premiums, including fire and all-risk
coverage, together with loss of rent endorsement; public liability insurance;
and any other insurance carried by Landlord on the Building Complex or any
component parts thereof;
(x) Labor costs, including wages and other payments, costs to
Landlord of worker's compensation and disability insurance, payroll taxes,
welfare fringe benefits and all legal fees and other costs or expenses incurred
in resolving any labor disputes;
(xi) Professional building management fees;
(xii) Salaries of on site employees hired by Landlord or its
property manager;
(xiii) Legal, accounting, inspection and other consultation
fees (including, without limitation, fees charged by consultants retained by
Landlord for services that are designed to produce a reduction in Operating
Expenses or reasonably to improve the operation, maintenance or state of repair
of the Building Complex) incurred for the normal prudent operation of the
Building Complex;
(xiv) The costs of capital improvements and structural
repairs and replacements made in or to the Building Complex or the cost of any
machinery or equipment installed in the Building Complex in order to conform to
any applicable laws, ordinances, rules, regulations or orders of any
governmental or quasi-governmental authority having jurisdiction over the
Building Complex (herein, "Required Capital Improvement"); the costs of any
capital improvements and structural repairs and replacements designed primarily
to reduce Operating Expenses (herein, "Cost Savings Improvements"); and a
reasonable annual reserve for all other capital improvements and structural
repairs and replacements reasonably necessary to permit Landlord to maintain the
Building as an office building. The expenditures for Required Capital
Improvements and Cost Savings Improvements shall be amortized over the useful
life of such capital improvement or structural repair or replacement (as
determined by Landlord's accountants), provided that the amortized amount of any
Cost Savings Improvement shall be limited in any year to the reduction in
Operating Expenses as a result thereof; and
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(xv) "Real Estate Taxes" including all real property taxes
and assessments levied against the Building Complex by any governmental or
quasi-governmental authority, including any taxes, assessments, surcharges, or
service or other fees of a nature not presently in effect which shall hereafter
be levied on the Building Complex as a result of the use, ownership or operation
of the Building Complex or for any other reason, whether in lieu of or in
addition to any current real estate taxes and assessments; provided, however,
that any taxes which shall be levied on the rentals of the Building Complex
shall be determined as if the Building Complex were Landlord's only property
and provided further, that in no event shall the term "Taxes and Assessments",
as used herein, include any federal, state or local income taxes levied or
assessed on Landlord, unless such taxes are a specific substitute for real
property taxes; such term shall, however, include gross taxes on rentals and
expenses incurred by Landlord for tax consultants and in contesting the amount
or validity of any such Taxes or Assessments (all of the foregoing are
collectively referred to herein as "Taxes"). "Assessments" shall include any and
all so-called special assessments, license tax, business license fee, business
license tax, commercial rental tax, levy, charge or tax imposed by any authority
having the direct power to tax, including any city, county, state or federal
government, or any school, agricultural, lighting, water, drainage or other
improvement or special district thereof, against the Premises, the Building or
the Building Complex, or against any legal or equitable interest of Landlord
therein. For the purposes of this Lease, any special assessment shall be deemed
payable in such number of installments as is permitted by law, whether or not
actually so paid. If the Building Complex has not been fully assessed as a
completed project, for the purposes of computing the Real Estate Taxes for any
adjustment required herein, the same shall be increased by Landlord's
accountants, in accordance with their estimate of what the assessment will be,
upon full completion of the Building Complex, including installation of all
tenant finish items. Any difference in actual Real Estate Taxes in any year and
the estimated Real Estate Taxes used by Landlord in the calculation of Operating
Expenses paid by Tenant shall be reflected in the reconciliation of Operating
Expenses described in Paragraph 5(e) below.
(xvi) Any other expense which under generally accepted
accounting principles would be considered a normal maintenance or operating
expense.
If Landlord selects an accrual accounting basis for calculating Operating
Expenses, Operating Expenses shall be deemed to have been paid when such
expenses have accrued in accordance with generally accepted accounting
principles.
B. Operating Expenses shall expressly exclude Landlord's income
taxes; leasing commissions, advertising and promotional expenses; interest on
debt or amortization payments on any mortgages or deeds of trust except as
provided in Paragraph 5(a)(3)(A)(xii); costs of repairs or other work occasioned
by fire, windstorm or other casualty to the extent of insurance proceeds
received; costs of repairs or other work to the Building or Building systems
covered by warranty; and any other expense which under generally accepted
accounting principles would not be considered a normal maintenance or operating
expense, except as otherwise specifically provided herein.
(b) If, during any year or portion thereof, the Building is less than
ninety-five percent (95%) occupied, those Operating Expenses which vary with the
occupancy levels in the Building shall be adjusted by Landlord to reflect the
level of Operating Expenses which reasonably would be incurred by Landlord in
the event the Building were ninety-five percent (95%) occupied; similarly, Real
Estate Taxes shall be adjusted by Landlord to reflect a fully occupied, fully
assessed Building, and the Building revenue shall be treated as if there were no
"free rent" periods or periods of rental abatement in making such adjustment
(such adjustments as described in this sentence being referred to herein as a
"Gross-Up"). Further, Operating Expenses shall be retroactively adjusted by
Landlord to include the cost of all maintenance contracts incurred by Landlord
during the second year of operation of the Building and any costs of operation
or maintenance in the Building which would have been incurred during the Base
Year but for the fact that such costs and/or expenses were covered by warranties
covering the Building during the initial twelve (12) months of the Building's
operation (or such longer warranty period as Landlord may have procured), it
being the intent of the parties that Operating Expenses (i) shall not be
artificially low by virtue of the fact that any Building components were subject
to contract warranties, and (ii) shall reflect the entire costs of ownership and
operation of the Building during a normal twelve (12) month period, such
adjustment being agreed to
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by the parties. Landlord shall not recover through Operating Expenses any item
of cost more than once. Landlord shall, at all times during the entire term of
this Lease, operate, manage, maintain and repair the Building in a lawful,
efficient and businesslike manner in accordance with sound property management
practices.
(c) From and after the Commencement Date, Tenant shall pay to Landlord
as Additional Rent during the balance of the term hereof an estimate of Tenant's
Pro Rata Share of Operating Expenses as reasonably estimated by Landlord,
payable monthly, at the rate of one twelfth (1/12) thereof, on the same date and
at the same place Base Rent is payable, with an adjustment to be made between
the parties at a later date as hereinafter provided. Landlord shall deliver to
Tenant, as soon as practicable following the end of any calendar year, an
estimate of the Operating Expenses for the new calendar year (the "Budget
Sheet"). Until receipt of the Budget Sheet, Tenant shall continue to pay its
monthly Tenant's Pro Rata Share of Operating Expenses based upon the estimate
for the preceding calendar year. To the extent that the Budget Sheet reflects an
estimate of Tenant's Pro Rata Share of Operating Expenses for the new calendar
year greater than the amount actually paid to the date of receipt of the Budget
Sheet for the new calendar year, Tenant shall pay such amount to Landlord within
thirty (30) days of receipt of the Budget Sheet. Upon receipt of the Budget
Sheet, Tenant shall thereafter pay the amount of its monthly Tenant's Pro Rata
Share of Operating Expenses as set forth in the Budget Sheet. As soon as
practicable following the end of any calendar year, but not later than May 1st,
Landlord shall submit to Tenant a statement in reasonable detail describing the
computations of the Operating Expenses setting forth the exact amount of
Tenant's Pro Rata Share of Operating Expenses for the calendar year just
completed (the "Statement"), and the difference, if any, between the actual
Tenant's Pro Rata Share of Operating Expenses for the calendar year just
completed and the estimated amount of Tenant's Pro Rata Share of Operating
Expenses paid by Tenant to Landlord. Notwithstanding the foregoing, Landlord's
failure to deliver the Statement to Tenant on or before May 1st, shall in no way
serve as a waiver of Landlord's rights under this Paragraph. To the extent that
the actual Tenant's Pro Rata Share of Operating Expenses for the period covered
by the Statement is higher than the estimated Tenant's Pro Rata Share of
Operating Expenses which Tenant previously paid during the calendar year just
completed, Tenant shall also pay to Landlord such balance within thirty (30)
days following receipt of the Statement from Landlord. To the extent that the
actual Tenant's Pro Rata Share of Operating Expenses for the period covered by
the Statement is less than the estimated Tenant's Pro Rata Share of Operating
Expenses which Tenant previously paid during the calendar year just completed,
Landlord shall credit the excess against any sums then owing or next becoming
due from Tenant under the Lease. In addition to the above Operating Expenses,
Tenant shall pay monthly upon receipt of Landlord's invoice, the Tenant's
electric usage for the Premises, as determined by the check meter installed as
provided for in paragraph 7(b).
(d) If the Lease term hereunder covers a period of less than a full
calendar year during the first or last calendar years of the term hereof,
Tenant's Pro Rata Share of Operating Expenses for such partial year shall be
calculated by proportionately reducing the Operating Expenses to reflect the
number of months in such year during which Tenant leased the Premises (the
"Adjusted Operating Expenses"). The Adjusted Operating Expenses shall then be
compared with the actual Operating Expenses for said partial year to determine
the amount, if any, of any increases in the actual Operating Expenses for such
partial year over the Adjusted Operating Expenses. Tenant shall pay Tenant's Pro
Rata Share of any such increases within ten (10) days following receipt of
notice thereof.
(e) Tenant shall have the right at its own expense and at a reasonable
time (after written notice to Landlord) within thirty (30) days after receipt of
the Statement to audit Landlord's books relevant to the Additional Rent due
under this Paragraph 5. In the event Tenant does not audit Landlord's books and
deliver the results thereof to Landlord within said 30-day period, the terms and
amounts set forth in the Statement shall be deemed conclusive and final and
Tenant shall have no further right to adjustment. In the event Tenant's
examination reveals that an error has been made in Landlord's determination of
Tenant's Pro Rata Share of Operating Expenses and Landlord agrees with such
determination, then the amount of such adjustment shall be payable by Landlord
or Tenant, to the other party as the case may be. In the event Tenant's
examination reveals an error has been made in Landlord's determination of
Tenant's Pro Rata Share of Operating Expenses, and Landlord disagrees with the
results thereof, Landlord shall have thirty (30) days to obtain an audit from an
accountant of its choice to determine Tenant's Pro Rata Share of Operating
Expenses. In the event Landlord's accountant and Tenant's accountant are unable
to reconcile their audits, both accountants shall mutually agree upon a third
accountant, whose determination of Tenant's Pro Rata Share
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of Operating Expenses shall be conclusive. In the event the amount of error by
Landlord is determined to be ten percent (10%) or more, the reasonable costs of
the three audits made pursuant to this subparagraph shall be paid by Landlord.
In the event the amount of error by Landlord is determined to be less than ten
percent (l0%), the reasonable costs of the three audits made pursuant to this
subparagraph shall be paid by Tenant.
(f) Landlord's failure during the Lease term to prepare and deliver any
statements or bills, or Landlord's failure to make a demand under this Paragraph
or under any other provision of this Lease shall not in any way be deemed to be
a waiver of, or cause Landlord to forfeit or surrender its rights to collect any
items of Additional Rent which may have become due pursuant to this Paragraph
during the term of this Lease. Tenant's liability for all Additional Rent due
under this Paragraph 5 shall survive the expiration or earlier termination of
this Lease.
6. Character of Occupancy:
(a) The Premises are to be used for general offices and product
demonstration to clients not inconsistent with the character and type of tenancy
found in comparable office buildings of a similar size, use and character in the
Xxxxxxxxx Xxxxxxxx xxxx xx Xxxxxx, Xxxxxxxx and for no other purpose without the
prior written consent of Landlord. Tenant shall, at its sole expense, comply
with all laws applicable to its use of the Premises and obtain all permits or
licenses required for the transaction of business at the Premises.
(b) Tenant shall not suffer nor permit the Premises nor any part
thereof to be used in any manner, nor anything to be done therein, nor suffer or
permit anything to be brought into or kept therein, which would in any way (i)
make void or voidable any fire or liability insurance policy then in force with
respect to the Building Complex, (ii) make unobtainable from reputable insurance
companies authorized to do business in the state of Colorado any fire insurance
with extended coverage, or liability, elevator, boiler or other insurance
required to be furnished by Landlord under the terms of any lease or mortgage to
which this Lease is subordinate at standard rates, (iii) cause or in Landlord's
reasonable opinion be likely to cause physical damage to the Building Complex or
any part thereof, (iv) constitute a public or private nuisance, (v) impair, in
the opinion of Landlord, the appearance, character or reputation of the Building
Complex, (vi) discharge objectionable fumes, vapors or odors into the Building
air conditioning system or into the Building flues or vents not designed to
receive them or otherwise in such manner as may unreasonably offend other
occupants of the Building, (vii) impair or interfere with any of the Building
services or impair or interfere with or tend to impair or interfere with the use
of any of the other areas of the Building by, or occasion discomfort, or
annoyance to Landlord or any of the other tenants or occupants of the Building
Complex, any such impairment or interference to be based upon the judgment of
Landlord, (viii) increase on an ongoing periodic basis the pedestrian traffic in
and out of the Premises or the Building above an ordinary level, (ix) create
waste in, on or around the Premises, Building, or Building Complex, or (x) make
any noise or set up any vibration which will disturb other tenants, except in
the course of permitted repairs or alterations at times permitted by Landlord.
(c) Tenant shall not use the Premises nor permit anything to be done in
or about the Premises or Building Complex which will in any way conflict with
any law, statute, ordinance, protective covenants affecting the Building Complex
or governmental or quasi-governmental rules or regulations now in force or which
may hereafter be enacted or promulgated. Tenant shall give written notice within
two (2) days from receipt thereof to Landlord of any notice it receives of the
violation of any law or requirement of any public authority with respect to the
Premises or the use or occupation thereof. Landlord shall give prompt notice to
Tenant of any notice it receives relative to the violation by Tenant of any law
or requirement of any public authority with respect to the Premises or the use
or occupation thereof.
(d) Tenant, by execution of this Lease and occupancy of the Premises,
agrees to comply with any declaration of covenants, conditions and restrictions
for the Westmoor Technology Park, now or hereafter entered into, as the same may
be amended from time to time ("Covenants") as applicable to Tenant's use and
enjoyment of the Premises, Building Complex and Westmoor Technology Park. In
addition to all rights available to Landlord hereunder, in the event Landlord is
obligated to pay to the association created pursuant to the Covenants
("Association") any fines, assessments, charges or other amounts on account of
any act or omission of Tenant, its
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agents, employees or invitees, Tenant shall, upon demand, reimburse Landlord for
such amounts, together with interest thereon at the Interest Rate. Landlord
shall deliver to Tenant a copy of the Covenants at such time as the same are
recorded in the real property records of Jefferson County, Colorado ("Records"),
and Landlord shall deliver copies of the amendments thereto at such time as such
amendments are recorded in the Records.
7. Services and Utilities:
(a) Landlord agrees, without charge except as provided herein with
respect to Operating Expenses, and in accordance with standards from time to
time prevailing for buildings in the Westmoor Technology Park area, to furnish
water to the Building for use in lavatories and drinking fountains (and to the
Premises if the plans for the Premises so provide); during ordinary business
hours to furnish such heated or cooled air to the Premises as may, in the
judgment of Landlord, be reasonably required for the comfortable use and
occupancy of the Premises provided that Tenant complies with the recommendations
of Landlord's engineer or other duly authorized representative, regarding
occupancy and use of the Premises; to provide janitorial services for the
Premises (including such interior and exterior window washing as may be
required), such janitorial services to be provided five days a week, except for
"Holidays" as herein defined; to cause electric current to be supplied for
lighting the Premises and public halls; and to furnish such snow removal
services to the Building Complex as may, in the judgment of Landlord, be
reasonably required for safe access to the Building Complex.
(b) Landlord shall provide electricity for normal office purposes
including but not limited to fluorescent and incandescent lighting, including
task and task ambient lighting systems and for normal office equipment including
but not limited to duplicating (reproduction) machines, communications and audio
visual equipment, vending machines, personal computers (provided they do not
require any additional voltage or special electrical requirements) executive
kitchen equipment, internal communication systems (which may include piped-in
music) and Tenant's data room. Tenant shall install, as part of its tenant
improvements, a check meter to determine the amount of electric current usage
Tenant is utilizing for the Premises. The cost of such usage, and check meter,
including but not limited to monitoring, installation and repair thereof, shall
be paid by Tenant.
(c) If Tenant requires water in excess of that usually furnished or
supplied for use in the Premises as general office space, Tenant shall first
procure the consent of Landlord for the use thereof. Tenant agrees to pay to
Landlord such amounts as Landlord determines are necessary to cover the costs of
such increased use of water, including, but not limited to, the cost of
installation, monitoring, maintenance and repair of any check meter or other
instrument necessary to measure the use of additional water.
(d) Tenant agrees that Landlord shall not be liable for failure to
supply any heating, air conditioning, elevator, electrical, janitorial, lighting
or other services during any period when Landlord uses reasonable diligence to
supply such services, or during any period Landlord is required to reduce or
curtail such services pursuant to any applicable laws, rules or regulations, now
or hereafter in force or effect, it being understood and agreed to by Tenant
that Landlord may discontinue, reduce or curtail such services, or any of them
at such times as it may be necessary by reason of accident, unavailability of
employees, repairs, alterations, improvements, strikes, lockouts, riots, acts of
God, application of applicable laws, statutes, rules and regulations, or due to
any other happening beyond the reasonable control of Landlord. In the event of
any such interruption, reduction or discontinuance of Landlord's services,
Landlord shall not be liable for damages to persons or property as a result
thereof, nor shall the occurrence of any such event in any way be construed as
an eviction of Tenant, or operate to release Tenant from any of Tenant's
obligations hereunder, except in the event that a discontinuance of services(s)
renders the Premises unuseable and continues for a period of more than seven
(7) days, in which case Base Rent shall be abated until said services(s) are
restored.
(e) Whenever heat generating machines or equipment are used by Tenant
in the Premises which affect the temperature otherwise maintained by the air
conditioning system, Landlord reserves the right to install supplementary air
conditioning units in the Premises in the event Landlord's independent
consulting engineer determines same are necessary as a result of Tenant's use of
lights or equipment which generate heat loads in excess
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of those for which the HVAC system is designed and the cost therefor, including
the cost of installation, operation and maintenance thereof, shall be paid by
Tenant to Landlord upon demand by Landlord.
(f) In the event that Tenant has any special or additional electrical
or mechanical requirements related to its use of the Premises, any such
electrical or mechanical equipment must be located within the Premises. Such
electrical or mechanical requirements, for the purposes hereof, shall include by
way of example, but not limitation, any internal telephone system. The foregoing
shall in no way be construed as granting to Tenant additional rights to use any
such special or additional electrical or mechanical equipment in its Premises
without the prior written consent of Landlord. Any additional cost or expense
related to or resulting from such electrical or mechanical requirements shall be
the sole obligation of Tenant.
(g) If Tenant requires HVAC service beyond ordinary business hours
(hereafter "After Hours Usage"), such service must be requested from the
Building manager at least twenty-four (24) hours prior thereto. After Hours
Usage shall only be supplied in one-half floor increments of the Building, for a
minimum of four (4) hours with increments of one half (1/2) hour thereafter.
Tenant shall reimburse Landlord, as Additional Rent, for all costs and expenses
for After Hours Usage in an amount equal to $38.00 per hour. If more than one
tenant is being furnished After Hour Usage during the same period, the charge to
Tenant shall be appropriately pro rated to reflect such multiple use of After
Hour Usage. The After Hours Usage rate may be modified by Landlord as utility
rates change.
8. Quiet Enjoyment: Subject to the provisions of this Lease, Landlord
covenants that Tenant on paying the rent and performing the covenants of this
Lease on its part to be performed shall and may peacefully and quietly have,
hold and enjoy the Premises for the term of this Lease. Landlord shall not be
responsible for the acts or omissions of any other tenant or third party which
may interfere with Tenant's use and enjoyment of the Premises. In the event of
any transfer or transfers of Landlord's interest in the Premises or in the real
property of which the Premises are a part, other than a transfer for security
purposes only, the transferor shall be automatically relieved of any and all
obligations and liabilities on the part of Landlord accruing from and after the
date of such transfer.
9. Maintenance and Repairs:
(a) Notwithstanding any other provisions of this Lease, Landlord shall
repair and maintain in a good condition the structural portions of the Building,
including the elevators, plumbing, air conditioning, heating and electrical
systems installed or furnished by Landlord, unless such maintenance and repairs
are caused in part or in whole by the act, neglect, fault or omission of Tenant,
its agents, servants, employees, licensees or invitees, in which case Tenant
shall pay to Landlord, on demand, the cost of such maintenance and repairs less
the amount of any insurance proceeds received by Landlord on account thereof, if
applicable. Landlord shall also maintain and keep in good order and repair the
Building roof; the curtain wall, including all glass connections at the
perimeter of the Building; all exterior doors, including any exterior plate
glass within the Building; the Building ventilating systems; elevators; Building
telephone and electrical closets; public portions of the Building or Building
Complex, including but not limited to the landscaping, walkways, and upper floor
lobbies and corridors, parking structure, and interior portions of the Building
above and below grade which are not covered by leases.
(b) Tenant, at Tenant's sole cost and expense, except for services
furnished by Landlord pursuant to Paragraph 7 hereof, shall maintain, in good
order, condition and repair, the Premises, including the interior surfaces of
the ceilings (if damaged or discolored due in whole or in part to the act,
neglect, omission or fault of Tenant), walls and floors, all doors, interior
glass partitions or glass surfaces (not exterior windows) and pipes, electrical
wiring, switches, fixtures and other special items, subject to the provisions of
Paragraph 15 hereof. In the event Tenant fails to so maintain the Premises in
good order, condition and repair, Landlord shall give Tenant notice to do such
acts as are reasonably required to maintain the Premises. In the event Tenant
fails to promptly commence such work and diligently pursue it to completion,
then Landlord shall have the right, but shall not be required, to do such acts
and expend such funds at the expense of Tenant as are reasonably required to
perform such work. The funds so expended plus twenty percent (20%) of such
amounts as an overhead/administrative charge shall be due and payable
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by Tenant within ten (10) days after receipt of Landlord's invoice therefor.
Landlord shall have no liability to Tenant for any damage, inconvenience or
interference with the use of the Premises by Tenant as a result of performing
any such work.
10. Alterations and Additions:
(a) Tenant shall make no alterations, additions or improvements to the
Premises or any part thereof without obtaining the prior written consent of
Landlord with the exception of additions or improvements that cost less than
$5,000.00 and are nonstructural in nature. Tenant shall submit any such request
to Landlord at least thirty (30) days prior to the proposed commencement date of
such work. Landlord may impose, as a condition to such consent, and at Tenant's
sole cost, such requirements as Landlord may deem necessary in its judgment,
including without limitation, the manner in which the work is done, a right of
approval of the contractor by whom the work is to be performed and the times
during which the work is to be accomplished, approval of all plans and
specifications and the procurement of all licenses and permits. Landlord shall
be entitled to post notices on and about the Premises with respect to Landlord's
non-liability for mechanics' liens and Tenant shall not permit such notices to
be defaced or removed. Tenant further agrees not to connect any apparatus,
machinery or device to the Building systems, including electric wires, fiber
optic systems, telecommunication systems, cable trays, duct work, water pipes,
fire safety, heating and mechanical systems, without the prior written consent
of Landlord.
(b) All alterations, improvements and additions to the Premises,
including, by way of illustration but not by limitation, all counters, screens,
grilles, special cabinetry work, partitions, paneling, carpeting, drapes or
other window coverings and light fixtures, shall be deemed a part of the real
estate and the property of Landlord and shall remain upon and be surrendered
with the Premises as a part thereof without molestation, disturbance or injury
at the end of the Lease term, whether by lapse of time or otherwise, unless
Landlord, by notice given to Tenant no later than fifteen (15) days prior to the
end of the term, shall elect to have Tenant remove all or any of such
alterations, improvements or additions (excluding non-movable office walls), and
in such event, Tenant shall promptly remove, at its sole cost and expense, such
alterations, improvements and additions and restore the Premises to the
condition in which the Premises were prior to the making of the same, reasonable
wear and tear excepted. Any such removal, whether required or permitted by
Landlord, shall be at Tenant's sole cost and expense, and Tenant shall restore
the Premises to the condition in which the Premises were prior to the making of
the same, reasonable wear and tear excepted. All movable partitions, machines
and equipment which are installed in the Premises by or for Tenant, without
expense to Landlord, and can be removed without structural damage to or
defacement of the Building or the Premises, and all furniture, furnishings and
other articles of personal property owned by Tenant and located in the Premises
(all of which are herein called "Tenant's Property") shall be and remain the
property of Tenant and may be removed by it at any time during the term of this
Lease. However, if any of Tenant's Property is removed, Tenant shall repair or
pay the cost of repairing any damage to the Building or the Premises resulting
from such removal. All additions or improvements which are to be surrendered
with the Premises shall be surrendered with the Premises, as a part thereof, at
the end of the term or the earlier termination of this Lease.
(c) If Landlord permits persons requested by Tenant to perform any
alterations, repairs, modifications or additions to the Premises, then prior to
the commencement of any such work, Tenant shall deliver to Landlord certificates
issued by insurance companies qualified to do business in the state where the
Premises are located evidencing that worker's compensation, public liability
insurance and property damage insurance, all in amounts, with companies and on
forms satisfactory to Landlord, are in force and maintained by all such
contractors and subcontractors engaged by Tenant to perform such work. All such
policies shall name Landlord as an additional insured and shall provide that the
same may not be canceled or modified without thirty (30) days prior written
notice to Landlord.
(d) Tenant, at its sole cost and expense, shall cause any permitted
alterations, decorations, installations, additions or improvements in or about
the Premises to be performed in compliance with all applicable requirements of
insurance bodies having jurisdiction, and in such manner as not to interfere
with, delay, or impose
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any additional expense upon Landlord in the construction, maintenance or
operation of the Building, and so as to maintain harmonious labor relations in
the Building.
11. Entry by Landlord:
Landlord and its agents shall have the right to enter the Premises at
all reasonable times and upon reasonable notice for the purpose of examining or
inspecting the same, to supply any services to be provided by Landlord
hereunder, to show the same to prospective purchasers of the Building, to make
such alterations, repairs, improvements or additions to the Premises, the
Building or other premises within the Building, as Landlord may deem necessary
or desirable, and to show the same to prospective tenants of the Premises.
Landlord shall use its best efforts to limit its entries into the Premises to no
more than two (2) times per month, by no more than five (5) people at a time,
and with at least twenty-four (24) hours notice. Landlord and its agent may
enter the Premises at all times and without advance notice for the purpose of
responding to an actual or apparent emergency. Landlord may for the purpose of
supplying scheduled janitorial services and evaluating janitorial services at
any time and from time to time enter the Premises by means of a master key
without liability to Tenant and without affecting this Lease. If, during the
last 60 days of the term hereof, Tenant shall have removed substantially all of
its property from the Premises, Landlord may immediately enter and alter,
renovate and redecorate the Premises without elimination or abatement of rent or
incurring liability to Tenant for any compensation.
12. Mechanic's Liens: Tenant shall pay or cause to be paid all costs for
work done by or on behalf of Tenant or caused to be done by or on behalf of
Tenant on the Premises of a character which will or may result in liens against
Landlord's interest in the Premises, Building or Building Complex and Tenant
will keep the Premises, Building and Building Complex free and clear of all
mechanic's liens and other liens on account of work done for or on behalf of
Tenant or persons claiming under Tenant. Tenant hereby agrees to indemnify,
defend and save Landlord harmless of and from all liability, loss, damages,
costs or expenses, including attorneys' fees, incurred in connection with any
claims of any nature whatsoever for work performed for, or materials or supplies
furnished to Tenant, including lien claims of laborers, materialmen or others.
Should any such liens be filed or recorded against the Premises, Building or
Building Complex with respect to work done for or materials supplied to or on
behalf of Tenant or should any action affecting the title thereto be commenced,
Tenant shall cause such liens to be released of record within ten (10) days
after notice thereof. If Tenant desires to contest any such claim of lien,
Tenant shall nonetheless cause such lien to be released of record by the posting
of adequate security with a court of competent jurisdiction if provided by
applicable law or statute of the state where the Premises are located. If Tenant
shall be in default in paying any charge for which such a mechanic's lien or
suit to foreclose such a lien has been recorded or filed and shall not have
caused the lien to be released as aforesaid, Landlord may (but without being
required to do so) pay such lien or claim and any costs associated therewith,
and the amount so paid, together with interest at the Interest Rate and
reasonable attorneys' fees incurred in connection therewith, shall be
immediately due and payable from Tenant to Landlord as Additional Rent.
13. Damage to Property, Injury to Persons:
(a) Tenant, for itself and its legal representatives, successors and
assigns, as a material part of the consideration to be rendered to Landlord
under this Lease, hereby waives all claims of liability against Landlord.
Tenant, for itself and its legal representatives, successors and assigns, hereby
indemnifies and agrees to hold harmless Landlord, its agents, employees,
contractors, legal representatives, successors and assigns, from any and all
claims of liability for any injury or damage to any person or property
whatsoever occurring in, on or about the Premises or the Building Complex or any
part thereof, to the extent such injury or damage is caused by the negligence,
fault or omission of Tenant, its agents, contractors, employees, licensees or
invitees. Tenant further agrees to indemnify and to hold Landlord harmless from
and against any and all claims arising from any breach or default in the
performance of any obligation on Tenant's part to be performed under the terms
of this Lease, or arising from any act or negligence of Tenant, or any of its
agents, contractors, employees, licensees or invitees. Such indemnities shall
include by way of example, but not limitation, all costs, reasonable attorneys'
fees, expenses and liabilities incurred in or about any such claim, action or
proceeding.
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(b) Landlord shall not be liable to Tenant for any damage by or from
any act or negligence of any co-tenant or other occupant of the Building
Complex, or by any owner or occupant of adjoining or contiguous property.
Landlord shall not be liable for any injury or damage to persons or property
resulting in whole or in part from the criminal activities of others. To the
extent not covered by normal fire and extended coverage insurance, Tenant agrees
to pay for all damage to the Building Complex, as well as all damage to persons
or property of other tenants or occupants thereof, caused by the misuse,
neglect, act, omission or negligence of Tenant or any of its agents,
contractors, employees, licensees or invitees.
(c) Neither Landlord nor its agents or employees shall be liable for
any damage to property entrusted to Landlord, its agents or employees, or
employees of the building manager, if any, nor for the loss or damage to any
property occurring by theft or otherwise, nor for any injury or damage to
persons or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the Building Complex
or from the pipes, appliances or plumbing works therein or from the roof, street
or subsurface or from any other place or resulting from dampness, or any other
cause whatsoever; provided, however, nothing contained herein shall be construed
to relieve Landlord from liability for any personal injury resulting from its
gross negligence. Neither Landlord nor its agents or employees shall be liable
for interference with the lights, view or other incorporeal hereditaments, nor
shall Landlord be liable for any latent defect in the Premises or in the
Building or Building Complex. Tenant shall give prompt notice to Landlord in
case of fire or accidents in or about the Premises or the Building or of defects
therein or in the fixtures or equipment located therein.
(d) In case any claim, demand, action or proceeding is made or brought
against Landlord, its agents or employees, by reason of any obligation on
Tenant's part to be performed under the terms of this Lease, or arising from any
act or negligence of Tenant, its agents or employees, or which gives rise to
Tenant's obligation to indemnify Landlord, Tenant shall be responsible for all
costs and expenses, including but not limited to reasonable attorneys' fees
incurred in defending or prosecution of the same, as applicable.
14. Insurance:
(a) Landlord agrees to carry and maintain general public liability
insurance against claims for personal injury, including death and property
damage in or about the Building Complex (excluding Tenant's Property), such
insurance to be in such amounts as Landlord (or its mortgagees) may deem
appropriate. Such insurance may expressly exclude property paid for by tenants
or paid for by Landlord for which tenants have reimbursed Landlord located in,
or constituting a part of the Building or the Building Complex. Such insurance
shall afford coverage for damages resulting from (a) fire, (b) perils covered by
extended coverage insurance, and (c) explosion of steam and pressure boilers and
similar apparatus located in the Building or the Building Complex. Landlord may
carry such other additional insurance coverage as Landlord or Landlord's
mortgagee deems appropriate including coverage for loss of rents. All such
insurance shall be procured from a responsible insurance company or companies
authorized to do business in the State where the Premises are located.
(b) Tenant shall, at its own cost, at all times during the term of this
Lease and any extensions hereof, procure and maintain insurance for hazard, fire
and extended coverage on Tenant's Property and the contents of the Premises in
an amount equal to full replacement cost thereof, and comprehensive general
liability insurance, including coverage for bodily injury, property damage,
personal injury (employee and contractual liability exclusions deleted),
products and completed operations, contractual liability, owner's protective
liability, host liquor legal liability and broad form property damage with the
following limits of liability: Two Million Dollars ($2,000,000.00) each
occurrence combined single limit for bodily injury, property damage and personal
injury; Two Million Dollars ($2,000,000.00) aggregate for bodily injury and
property damage for products and completed operations. All such insurance shall
be procured from a responsible insurance company or companies authorized to do
business in the State where the Premises are located, with general
policyholder's ratings of not less than "A" and a financial rating of not less
than "XI" in the most current available Best's Insurance Reports, and shall be
otherwise satisfactory to Landlord. All such policies shall name Landlord as an
additional insured, and shall provide that the same may not be canceled or
altered except upon thirty (30) days prior written notice to Landlord. All
insurance maintained by Tenant shall be
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primary to any insurance provided by Landlord. If Tenant obtains any general
liability insurance policy on a claims-made basis, Tenant shall provide
continuous liability coverage for claims arising during the entire term of this
Lease, regardless of when such claims are made, either by obtaining an
endorsement providing for an unlimited extended reporting period in the event
such policy is canceled or not renewed for any reason whatsoever or by obtaining
new coverage with a retroactive date the same as or earlier than the expiration
date of the canceled or expired policy. Tenant shall provide certificate(s) of
such insurance to Landlord upon commencement of the Lease term and at least
thirty (30) days prior to any annual renewal date thereof and upon request from
time to time and such certificate(s) shall disclose that such insurance names
Landlord as an additional insured, in addition to the other requirements set
forth herein. The limits of such insurance shall not, under any circumstances,
limit the liability of Tenant hereunder.
(c) Each party agrees to use its best efforts to include in each of its
policies insuring against loss, damage or destruction by fire or other casualty
a waiver of the insurer's right of subrogation against the other party, or if
such waiver should be unobtainable or unenforceable (i) an express agreement
that such policy shall not be invalidated if the insured waives the right of
recovery against any party responsible for a casualty covered by the policy
before the casualty; or (ii) any other form of permission for the release of the
other party. If such waiver, agreement or permission shall not be, or shall
cease to be, obtainable without additional charge or at all, the insured party
shall so notify the other party promptly after learning thereof. In such case,
if the other party shall so elect and shall pay the insurer's additional charge
therefor, such waiver, agreement or permission shall be included in the policy,
or the other party shall be named as an additional insured in the policy. Each
such policy which shall so name a party hereto as an additional insured shall
contain, if obtainable, agreements by the insurer that the policy will not be
canceled without at least thirty (30) days prior notice to both insureds and
that the act or omission of one insured will not invalidate the policy as to the
other insured. Any failure by either party, if named as an additional insured,
promptly to endorse to the order of the other party, without recourse, any
instrument for the payment of money under or with respect to the policy of which
the other party is the owner or original or primary insured, shall be deemed a
default under this Lease.
(d) Each party hereby releases the other party with respect to any
claim (including a claim for negligence) which it might otherwise have against
the other party for loss, damage or destruction with respect to its property
(including the Building, Building Complex, the Premises and rental value or
business interruption) occurring during the term of this Lease to the extent to
which it is insured under a policy or policies containing a waiver of
subrogation or permission to release liability or naming the above party as an
additional insured as provided above.
(e) Neither Landlord, the Building manager, if any, nor their
respective agents shall be liable for any damage to the property of Tenant or
others entrusted to employees of the Building, nor for the loss of or damage to
any property of Tenant by theft or otherwise and Tenant shall indemnify Landlord
of and from any loss or damages, costs or actions Landlord may suffer or incur
as a result of such loss or damage to Property.
15. Damage or Destruction to Building:
(a) In the event that the Premises or the Building are damaged by fire
or other insured casualty and the insurance proceeds have been made available
therefor by the holder or holders of any mortgages or deeds of trust covering
the Building, the damage shall be repaired by and at the expense of Landlord to
the extent of such insurance proceeds available therefor, provided such repairs
and restoration can, in Landlord's reasonable opinion, be made within two
hundred ten (210) days after the occurrence of such damage without the payment
of overtime or other premiums, and until such repairs and restoration are
completed, the Base Rent shall be abated in proportion to the part of the
Premises which is unusable by Tenant in the conduct of its business, as may be
reasonably determined by Landlord, (but there shall be no abatement of Base Rent
by reason of any portion of the Premises being unusable for a period equal to
one day or less). Landlord agrees to notify Tenant within forty-five (45) days
after such casualty if it estimates that it will be unable to repair and restore
the Premises within said two hundred ten (210) day period. Such notice shall set
forth the approximate length of time Landlord estimates will be required to
complete such repairs and restoration. Notwithstanding anything to the contrary
contained herein, if Landlord cannot or estimates it cannot make such repairs
and restoration within said two hundred ten (210) day period, then Tenant may,
by written notice
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to Landlord cancel this Lease, provided such notice is given to Landlord within
fifteen (15) days after Landlord notifies Tenant of the estimated time for
completion of such repairs and restoration. Notwithstanding the preceding
sentence, Tenant may not cancel this Lease as hereinabove stated if the damage
to the Premises or the Building is in whole or in part the result of the act,
omission, fault or negligence of Tenant, its agents, contractors, employees,
licensees or invitees. Except as provided in this Paragraph 15, there shall be
no abatement of rent and no liability of Landlord by reason of any injury to or
interference with Tenant's business or property arising from the making of any
such repairs, alterations or improvements in or to the Building, Premises or
fixtures, appurtenances and equipment. Tenant understands that Landlord will not
carry insurance of any kind on Tenant's Property, including furniture and
furnishings, or on any fixtures or equipment removable by Tenant under the
provisions of this Lease, or any improvement installed in the Premises by or on
behalf of Tenant, and that Landlord shall not be obligated to repair any damage
thereto or replace the same.
(b) In case the Building throughout shall be so injured or damaged,
whether by fire or otherwise (though the Premises may not be affected, or if
affected, can be repaired within said 210 days) that Landlord, within sixty (60)
days after the happening of such injury, shall decide not to reconstruct or
rebuild the Building, then notwithstanding anything contained herein to the
contrary, upon notice in writing to that effect given by Landlord to Tenant
within said sixty (60) days, Tenant shall pay the rent, properly apportioned up
to date of such casualty, this Lease shall terminate from the date of delivery
of said written notice, and both parties hereto shall be released and discharged
from all further obligations hereunder (except those obligations which expressly
survive termination of the Lease term).
16. Condemnation:
(a) If the whole of the Premises or so much thereof as to render the
balance unusable by Tenant for the proper conduct of its business shall be taken
under power of eminent domain or transferred under threat thereof, then this
Lease, at the option of either Landlord or Tenant exercised by either party
giving notice to the other of such election within thirty (30) days after such
conveyance or taking possession, whichever is earlier, shall forthwith cease and
terminate and the rent shall be duly apportioned as of the date of such taking
or conveyance. No award for any partial or entire taking shall be apportioned
and Tenant hereby assigns to Landlord any award which may be made in such taking
or condemnation, together with any and all rights of Tenant now or hereafter
arising in or to the same or any part thereof. Notwithstanding the foregoing,
Tenant shall be entitled to seek, directly from the condemning authority, an
award for its removable trade fixtures, equipment and personal property and
relocation expenses, if any, to the extent Landlord's award is not diminished.
In the event of a partial taking which does not result in a termination of this
Lease, Base Rent shall be reduced in proportion to the reduction in the size of
the Premises so taken and this Lease shall be modified accordingly. Promptly
after obtaining knowledge thereof, Landlord or Tenant, as the case may be, shall
notify the other of any pending or threatened condemnation or taking affecting
the Premises or the Building.
(b) If all or any portion of the Premises shall be condemned or taken
for governmental occupancy for a limited period, this Lease shall not terminate
and Landlord shall be entitled to receive the entire amount of any such award or
payment thereof as damages, rent or otherwise. Tenant hereby assigns to Landlord
any award which may be made in such temporary taking, together with any and all
rights of Tenant now or hereafter arising in or to the same or any part thereof.
Tenant shall be entitled to receive an abatement of Base Rent in proportion to
the reduction in the size of the Premises so taken.
17. Assignment and Subletting:
(a) Tenant shall not permit any part of the Premises to be used or
occupied by any persons other than Tenant and its employees, nor shall Tenant
permit any part of the Premises to be used or occupied by any licensee or
concessionaire or permit any persons other than Tenant, its employees and
invitees, to be upon the Premises. Tenant shall not voluntarily, by operation of
law, or otherwise, assign, transfer or encumber this Lease or any interest
herein nor sublet or part with possession of all or any part of the Premises
(any and all of which shall
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hereinafter be referred to as "Transfer") without Landlord's prior written
consent, which shall not be unreasonably withheld. Any Transfer without the
prior written consent of Landlord shall constitute a default hereunder and shall
be void ab initio and shall confer no rights upon any third party,
notwithstanding Landlord's acceptance of rent payments from any purported
transferee. Landlord's consent to any requested assignment of this Lease or
subletting of all or any part of the Premises shall be subject to the following
conditions:
(1) such consent and resulting subletting or assignment shall not
relieve Tenant of its primary obligations hereunder, including the obligation
for payment of all rents due hereunder;
(2) Landlord, at its option and from time to time, may collect the
rent from the subtenant or assignee, and apply the net amount collected to the
rent herein reserved, but no such collection shall be deemed an acceptance by
Landlord of the subtenant or assignee as the tenant hereof, or a release of
Tenant from further performance of covenants on the part of Tenant herein
contained;
(3) any such subtenant or assignee shall be a company or other
entity of good repute, engaged in a business or profession compatible with and
in keeping with the then standards of the Building and financially capable of
performing its obligations with respect to the Premises;
(4) such subtenant or assignee shall assume and agree to perform all
of Tenant's obligations under this Lease insofar as they pertain to the space so
sublet or assigned; and
(5) Tenant is not in default of any term or condition of this Lease
at the time it requests Landlord's consent.
(b) In the event of any Transfer of this Lease or all or any part of
the Premises by Tenant, Landlord in addition to any rights contained herein,
shall have the option, at its discretion, to collect and receive the excess of
rent due to Tenant from such sublessee or assignee over the Base Rent due
hereunder. Further, in the event of any Transfer of this Lease of all or any
part of the Premises by Tenant without the prior written consent of Landlord,
Landlord, in addition to any rights contained herein shall have the following
options, at its discretion:
(1) To give Tenant written notice of Landlord's intention to
terminate this Lease on the date such notice is given or on any later date
specified therein, whereupon, on the date specified in such notice, Tenant's
right to possession of the Premises shall cease and this Lease shall thereupon
be terminated, except as to any uncompleted obligations of Tenant; or
(2) To re-enter and take possession of the Premises or the part
thereof subject to such Transfer, and to enforce all rights of Tenant, and
receive and collect all rents and other payments due to Tenant, in accordance
with such sublet or assignment of the Premises, or any part thereof, as if
Landlord was the sublettor or assignor, and to do whatever Tenant is permitted
to do pursuant to the terms of such sublease or assignment.
(c) At the time of making a request for Landlord's consent to a
Transfer and not less than thirty (30) days prior to the proposed effective date
thereof, Tenant shall provide to Landlord such information as Landlord, its
accountants and attorneys, shall reasonably require with respect to such
proposed Transfer, including but not limited to name and address of the proposed
transferee, description of business operations, financial information and
certificate of corporate authority and good standing or partnership certificate,
as applicable.
(d) Consent of Landlord to a Transfer shall not relieve Tenant from
seeking consent to any subsequent Transfers.
(e) Subletting or assignments by subtenants or assignees shall not be
permitted under any circumstances, nor shall Tenant be permitted to assign this
Lease or sublet all or any part of the Premises during any
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period of time that all or any portion of the Base Rent is abated. Further, no
option to renew or extend the term of this Lease or to lease additional space,
if any, shall be exercisable by any subtenant or assignee.
(f) All subleases or assignments shall be in writing and a copy thereof
provided to Landlord within ten (10) days of its effective date. All subleases
shall further contain an express provision that in the event of any default by
Tenant under this Lease and upon notice thereof to the subtenant from Landlord,
all rentals payable by the subtenant shall be paid directly to Landlord, for the
Tenant's account, until subsequent notice from Landlord that such default has
been cured. Notwithstanding the foregoing, receipt by Landlord of rent directly
from the subtenant shall not be considered a waiver of the default on the part
of Tenant, nor an acceptance of such subtenant.
(g) Tenant shall have no right to sublet any portion of the Premises or
assign the Lease to any tenant in the Westmoor Business Park without Landlord's
prior written consent which may be withheld for any reason or no reason.
Furthermore, Tenant shall under no circumstances sublet space within the
Premises at a rental rate less than 80% of the then prevailing base rent within
the Building Complex.
(h) No consent of Landlord shall be required for any assignment or
sublease to a successor of Tenant whether by merger, reorganization, stock sale,
sale of substantially all of Tenant's assets, or to an "Affiliate" of Tenant,
which includes any entity controlled by or under common control with the Tenant.
18. Estoppel Certificate: Tenant further agrees at any time and from time
to time on or before five (5) days after written request by Landlord, to
execute, acknowledge and deliver to Landlord an estoppel certificate certifying
(to the extent it believes the same to be true) that this Lease is unmodified
and in full force and effect (or if there have been modifications, that the same
is in full force and effect as modified, and stating the modifications), that
there have been no defaults thereunder by Landlord or Tenant (or if there have
been defaults, setting forth the nature thereof), the date to which the rent and
other charges have been paid, if any, that Tenant claims no present charge,
lien, claim or offset against rent, the rent is not prepaid for more than one
month in advance and such other matters as may be reasonably required by
Landlord, Landlord's mortgagee, or any potential purchaser of the Building, it
being intended that any such statement delivered pursuant to this Paragraph may
be relied upon by any prospective purchaser of all or any portion of Landlord's
interest herein, or a holder of any mortgage or deed of trust encumbering any
portion of the Building Complex. Tenant's failure to deliver such statement
within such time shall be a default under this Lease. Notwithstanding the
foregoing, in the event that Tenant does not execute the statement required by
this paragraph, Tenant hereby grants to Landlord a power of attorney coupled
with an interest to act as Tenant's attorney in fact for the purpose of
executing such statement or statements required by this Paragraph.
19. Default:
(a) The following events (herein referred to as an "event of default")
shall constitute a default by Tenant hereunder;
(1) Tenant shall fail to pay within five (5) days of when due any
installment of Base Rent, Additional Rent or any other amounts payable
hereunder;
(2) This Lease or the estate of Tenant hereunder shall be
transferred to or shall pass to or devolve upon any other person or party in
violation of the provisions of this Lease, except as permitted herein;
(3) This Lease or the Premises or any part thereof shall be taken
upon execution or by other process of law directed against Tenant, or shall be
taken upon or subject to any attachment at the instance of any creditor or
claimant against Tenant, and said attachment shall not be discharged or disposed
of within fifteen (15) days after the levy thereof;
(4) Tenant shall file a petition in bankruptcy or insolvency or
for reorganization or arrangement under the bankruptcy laws of the United States
or under any insolvency act of any state, or shall
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voluntarily take advantage of any such law or act by answer or otherwise, or
shall be dissolved or shall make an assignment for the benefit of creditors;
(5) Involuntary proceedings under any such bankruptcy law or
insolvency act or for the dissolution of Tenant shall be instituted against
Tenant, or a receiver or trustee shall be appointed of all or substantially all
of the property of Tenant, and such proceedings shall not be dismissed or such
receivership or trusteeship vacated within thirty (30) days after such
institution or appointment;
(6) Tenant shall fail to take possession of the Premises within
thirty (30) days of the Commencement Date;
(7) Tenant shall abandon or permanently vacate the Premises for
ten (10) consecutive days;
(8) Tenant shall fail to perform any of the other agreements,
terms, covenants or conditions hereof on Tenant's part to be performed (other
than the obligation to pay rent or any other charges payable hereunder), and
such nonperformance shall continue for a period of fifteen (15) days after
notice thereof by Landlord to Tenant; provided, however, that if Tenant cannot
reasonably cure such nonperformance within fifteen (15) days, Tenant shall not
be in default if it commences cure within said fifteen (15) days and diligently
pursues the same to completion, with completion occurring in all instances
within sixty (60) days; and
(9) Tenant shall fail to obtain a release of any mechanic's lien,
as required herein.
(10) Tenant shall violate or breach any covenants or condition
contained in the Covenants or any rules or regulations of the Association
established pursuant thereto and shall not cure such violation or breach within
fifteen (15) days after notice thereof from the Association or from Landlord.
(b) Upon the occurrence of an event of default, Landlord shall have the
right, at its election, then or at any time thereafter and while any such event
of default shall continue, either:
(1) To give Tenant written notice of Landlord's intention to
terminate this Lease on the date such notice is given or on any later date
specified therein, whereupon, on the date specified in such notice, Tenant's
right to possession of the Premises shall cease and this Lease shall thereupon
be terminated; provided however, all of Tenant's obligations, including but not
limited to, the amount of Base Rent and other obligations reserved in this Lease
for the balance of the term hereof, shall immediately be accelerated and due and
payable.
(2) To re-enter and take possession of the Premises or any part
thereof and repossess the same as Landlord's former estate and expel Tenant and
those claiming through or under Tenant, and remove the effects of both or
either, using such force for such purposes as may be reasonably necessary,
without being liable for prosecution thereof, without being deemed guilty of any
manner of trespass and without prejudice to any remedies for arrears of rent or
preceding breach of covenants or conditions. Should Landlord elect to re-enter
the Premises as provided in this Paragraph 19(b)(2) or should Landlord take
possession pursuant to legal proceedings or pursuant to any notice provided for
by law, Landlord may, from time to time, without terminating this Lease, relet
the Premises or any part thereof in Landlord's or Tenant's name, but for the
account of Tenant, for such term or terms (which may be greater or less than the
period which would otherwise have constituted the balance of the term of this
Lease) and on such conditions and upon such other terms (which may include
concessions of free rent and alteration and repair of the Premises) as Landlord,
in its discretion, may determine, and Landlord may collect and receive the rents
therefor. Landlord shall in no way be responsible or liable for any failure to
relet the Premises or any part thereof or for any failure to collect any rent
due upon such reletting. No such re-entry or taking possession of the Premises
by Landlord shall be construed as an election on Landlord's part to terminate
this Lease unless a written notice of such intention be given to Tenant. No
notice from Landlord hereunder or under a forcible entry and detainer statute or
similar law shall constitute an election by Landlord to terminate this Lease
unless such notice specifically so states.
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Landlord reserves the right following any such re-entry and/or reletting, to
exercise its right to terminate this Lease by giving Tenant such written notice,
in which event, this Lease will terminate as specified in said notice.
(c) In the event that Landlord does not elect to terminate this Lease
as permitted in Paragraph 19(b)(l) hereof, but on the contrary, elects to take
possession as provided in Paragraph 19(b)(2), Tenant shall pay to Landlord (i)
the rent and other sums as herein provided, which would be payable hereunder if
such repossession had not occurred, less (ii) the net proceeds, if any, of any
reletting of the Premises after deducting all Landlord's expenses in connection
with such reletting, including but without limitation, all repossession costs,
brokerage commissions, legal expenses, attorneys' fees, expenses of employees,
alteration and repair costs and expenses of preparation for such reletting. If,
in connection with any reletting, the new lease term extends beyond the existing
term, or the premises covered thereby include other premises not part of the
Premises, a fair apportionment of the rent received from such reletting and the
expenses incurred in connection therewith as provided aforesaid will be made in
determining the net proceeds from such reletting. Tenant shall pay such rent and
other sums to Landlord monthly on the days on which the rent would have been
payable hereunder if possession had not been retaken.
(d) In the event this Lease is terminated, Landlord shall be entitled
to recover forthwith against Tenant as damages for loss of the bargain and not
as a penalty, an aggregate sum which, at the time of such termination of this
Lease, represents the excess, if any, of the aggregate of the rent and all other
sums payable by Tenant hereunder that would have accrued for the balance of the
term over the aggregate rental value of the Premises (such rental value to be
computed on the basis of a tenant paying not only a rent to Landlord for the use
and occupation of the Premises, but also such other charges as are required to
be paid by Tenant under the terms of this Lease) for the balance of such term,
both discounted to present worth at the rate of eight percent (8%) per annum.
Alternatively, at Landlord's option, Tenant shall remain liable to Landlord for
damages in an amount equal to the rent and other sums arising under the Lease
for the balance of the term had the Lease not been terminated, less the net
proceeds, if any, from any subsequent reletting, after deducting all expenses
associated therewith and as enumerated above. Landlord shall be entitled to
receipt of such amounts from Tenant monthly on the days on which such sums would
have otherwise been payable.
(e) Suit or suits for the recovery of the amounts and damages set forth
above may be brought by Landlord, from time to time, at Landlord's election and
nothing herein shall be deemed to require Landlord to await the date whereon
this Lease or the term hereof would have expired had there been no such default
by Tenant or no such termination, as the case may be.
(f) After an event of default by Tenant, Landlord may xxx for or
otherwise collect all rents, issues and profits payable under all subleases on
the Premises, including those past due and unpaid.
(g) After an event of default by Tenant, Landlord may without
terminating this Lease, enter upon the Premises, with force if necessary,
without being liable for prosecution of any claim for damages, without being
deemed guilty of any manner of trespass and without prejudice to any other
remedies, and do whatever Tenant is obligated to do under the terms of this
Lease. Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in effecting compliance with the Tenant's obligations under
this Lease; further, Tenant agrees that Landlord shall not be liable for any
damages resulting to Tenant from effecting compliance with Tenant's obligations
under this subparagraph caused by the negligence of Landlord or otherwise.
(h) No failure by Landlord to insist upon the strict performance of any
agreement, term, covenant or condition hereof or to exercise any right or remedy
consequent upon a breach thereof, and no acceptance of full or partial rent
during the continuance of any such breach, shall constitute a waiver of any such
breach of such agreement, term, covenant or condition. No agreement, term,
covenant or condition hereof to be performed or complied with by Tenant, and no
breach thereof, shall be waived, altered or modified except by written
instrument executed by Landlord. No waiver of any breach shall affect or alter
this Lease, but each and every agreement, term, covenant and condition hereof
shall continue in full force and effect with respect to any other then existing
or subsequent breach thereof. Notwithstanding any unilateral termination of this
Lease, this Lease shall continue in force
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and effect as to any provisions hereof which require observance or performance
of Landlord or Tenant subsequent to termination.
(i) Nothing contained in this Paragraph shall limit or prejudice the
right of Landlord to prove and obtain as liquidated damages in any bankruptcy,
insolvency, receivership, reorganization or dissolution proceeding, an amount
equal to the maximum allowed by any statute or rule of law governing such
proceeding and in effect at the time when such damages are to be proved, whether
or not such amount be greater, equal to or less than the amounts recoverable,
either as damages or rent, referred to in any of the preceding provisions of
this Paragraph.
(j) Any rents or other amounts owing to Landlord hereunder which are
not paid within five (5) days of the date they are due, shall thereafter bear
interest from the due date at the rate of eighteen percent (18%) per annum
("Interest Rate") until paid. Similarly, any amounts paid by Landlord to cure
any default of Tenant or to perform any obligation of Tenant, shall, if not
repaid by the Tenant within five (5) days of demand by Landlord, thereafter bear
interest from the date paid by Landlord at the Interest Rate until paid. In
addition to the foregoing, Tenant shall pay to Landlord whenever any Base Rent,
Additional Rent or any other sums due hereunder remain unpaid more than five (5)
days after the due date thereof, an administrative charge to compensate Landlord
for the costs and expenses associated with handling a delinquent account equal
to ten percent (10%) of the amount due. Further, in the event of default by
Tenant, in addition to all other rights and remedies, Landlord shall be entitled
to receive from Tenant all sums, the payment of which may previously have been
waived or abated by Landlord, or which may have been paid by Landlord pursuant
to any agreement to grant Tenant a rental abatement or other monetary inducement
or concession, including but not limited to any tenant finish allowance or
moving allowance, together with interest thereon from the date or dates such
amounts were paid by Landlord or would have been due from Tenant but for the
abatement, at the Interest Rate, until paid; it being understood and agreed that
such concession or abatement was made on the condition and basis that Tenant
fully perform all obligations and covenants under the Lease for the entire term.
Not withstanding the above, said ten Percent (10%) penalty shall be waived by
Landlord for the first two (2) occurrences during any calendar year provided the
Payment is received on or before the tenth (10th) day of the month.
(k) Each right and remedy provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy provided for
in this Lease now or hereafter existing at law or in equity or by statute or
otherwise, including, but not limited to, suits for injunctive or declaratory
relief and specific performance. The exercise or commencement of the exercise by
Landlord of any one or more of the rights or remedies provided for in this Lease
now or hereafter existing at law or in equity or by statute or otherwise shall
not preclude the simultaneous or subsequent exercise by Landlord of any or all
other rights or remedies provided for in this Lease, or now or hereafter
existing at law or in equity or by statute or otherwise. All costs incurred by
Landlord in connection with collecting any amounts and damages owing by Tenant
pursuant to the provisions of this Lease or to enforce any provision of this
Lease, including by way of example, but not limitation, reasonable attorneys'
fees from the date any such matter is turned over to an attorney, shall also be
recoverable by Landlord from Tenant. LANDLORD AND TENANT AGREE THAT ANY ACTION
OR PROCEEDING ARISING OUT OF THIS LEASE SHALL BE HEARD BY A COURT SITTING
WITHOUT A JURY AND THUS HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
20. Completion of Premises:
(a) Landlord has agreed to complete the Premises as more fully set
forth in a work letter (the "Work Letter") attached hereto and incorporated
herein as Exhibit D. Other than as set forth in the Work Letter, Landlord shall
have no obligation for the completion of the Premises, and Tenant shall accept
the Premises in its "as is" condition on the Commencement Date. Landlord shall
not have any obligation for the repair or replacement of any portions of the
interior of the Premises, including but not limited to carpeting, draperies,
window coverings, wallcoverings or painting, which are damaged or wear out
during the term hereof, regardless of the cause therefor, except as may
otherwise be specifically set forth in this Lease. If the Premises are not Ready
for Occupancy (as hereafter defined) on the Commencement Date, unless such delay
is caused by Tenant, its agents or employees, the
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rental obligations hereunder shall not commence until the Premises are Ready for
Occupancy, whereupon, this Lease and all covenants, conditions and terms hereof
shall be in full force and effect; and the Termination Date hereof shall be
postponed as set forth in paragraph 2(b). The postponement of the rent and term
herein provided for such period shall be in full settlement for all claims which
Tenant might have by reason of the Premises not being Ready for Occupancy on the
Commencement Date. If Tenant wishes to take possession of all or any part of the
Premises prior to the date the Premises are Ready for Occupancy, it must first
secure the prior written consent of Landlord and such occupancy shall in no way
hinder, delay or interfere with Landlord's work in completion of the Premises,
and in such event, all terms and provisions of this Lease, including the
obligation to pay rent at a rate equal to the monthly rate provided in Paragraph
3 (prorated accordingly) shall apply. "Ready for Occupancy" as that term is used
herein shall mean the date when all major construction aspects of the Premises
and any remodeling work to be performed by Landlord to the extent agreed to in
the Work Letter are completed although minor items are not completed (including
but not limited to, touch-up plastering or repainting which does not
unreasonably interfere with Tenant's ability to carry on its business in the
Premises). The certificate of the architect (or other representative of
Landlord) in charge of supervising the completion or remodeling of the Premises
shall control conclusively the date upon which the Premises are Ready for
Occupancy. If Landlord is delayed in delivering the Premises to Tenant because
the same are not Ready for Occupancy or due to the failure of a prior occupant
to vacate the same, then the rent and term shall be postponed as hereinabove set
forth, and such postponement shall be in full settlement of all claims which
Tenant may otherwise have by reason of the delay of delivery.
(b) Landlord, at its sole option, may allow Tenant to enter into the
Premises for the purpose of installing furniture, fixtures and equipment and
other leasehold improvements, including, but not limited to, wall and floor
coverings, millwork and draperies, subject to the terms of the Work Letter prior
to the Commencement Date at its sole risk and with no obligation to pay rent
provided that such entry and work do not unreasonably interfere in any way with
the performance of Landlord's work or other workers in and about the Building.
At any time during such period of early entry, if Landlord notifies Tenant that
Tenant's entry or work is interfering with or delaying the performance of work
to be performed by Landlord or other workers in and about the Building, or
causing any disruption whatsoever, Tenant shall forthwith discontinue any
further work and shall vacate the Premises, and shall cause its workmen or
contractors to remove therefrom, any equipment, materials or installations which
are the subject of Landlord's notice.
21. Removal of Tenant's Property: All movable furniture and personal
effects of Tenant not removed from the Premises upon the vacation or abandonment
thereof or upon the termination of this Lease for any cause whatsoever shall
conclusively be deemed to have been abandoned and may be appropriated, sold,
stored, destroyed or otherwise disposed of by Landlord without notice to Tenant
and without obligation to account therefor, and Tenant shall reimburse Landlord
for all expenses incurred in connection with the disposition of such property.
22. Holding Over: Should Tenant, with Landlord's written consent, hold over
after the termination of this Lease, Tenant shall be deemed a tenant at will.
During such holdover period, Tenant shall be liable for all damages incurred by
Landlord as a result of Tenant's withholding of the Premises. Should Tenant
holdover after the termination of this Lease, with Landlord's consent, Tenant
shall become a tenant from month to month only upon each and all of the terms
herein provided as may be applicable to such month to month tenancy and any such
holding over shall not constitute an extension of this Lease. During such
holding over, Tenant shall pay monthly rent equal to one hundred fifty percent
(150%) of the last monthly rental rate and the other monetary charges as
provided herein. Such tenancy shall continue until terminated by Landlord, as
provided by law, or until Tenant shall have given to Landlord at least thirty
(30) days written notice prior to the last day of the calendar month intended as
the date of termination of such month to month tenancy.
23. Parking and Common Areas: Tenant shall have the right to utilize five
(5) parking spaces for every one thousand (1,000) usable square feet of the
Premises, in the parking area adjacent to the Building during the Primary Lease
Term. Landlord shall have the right, without obligation, and from time to time,
to change the number, size, location, shape and arrangement of parking areas and
other common areas, create designated or reserved spaces, restrict parking of
tenants or their guests to designated areas, designate loading or handicap
loading areas and to,
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change the level or grade of parking. Except as otherwise specifically provided
herein, all access roads, courtyards and other areas, facilities or improvements
furnished by Landlord are for the general and nonexclusive use in common of all
tenants of the Building, and those persons invited upon the land upon which the
Building is situated and shall be subject to the exclusive control and
management of Landlord, and Landlord shall have the right, without obligation to
establish, modify and enforce such rules and regulations, which the Landlord may
deem reasonable and/or necessary. Unless as otherwise provided, Tenant's use of
the parking area, as herein set forth, shall be in common with other tenants of
the Building and any other parties permitted by Landlord to use the parking
area. The parking rights herein granted shall not be deemed a lease but shall be
construed as a license granted by Landlord to Tenant for the term of this Lease.
Landlord shall not have the obligation to monitor the utilization of the parking
areas or to verify correct utilization of parking facilities by tenants of the
Building.
24. Surrender and Notice: Upon the expiration or earlier termination of
this Lease, Tenant shall promptly quit and surrender to Landlord the Premises
broom clean, in good order and condition, ordinary wear and tear and loss by
fire or other casualty excepted, and Tenant shall remove all of its movable
furniture and other effects and such alterations, additions and improvements as
Landlord shall require Tenant to remove pursuant to Paragraph 10 hereof. In the
event Tenant fails to so vacate the Premises on a timely basis as required,
Tenant shall be responsible to Landlord for all costs and damages, including but
not limited to any amounts required to be paid to third parties who were to have
occupied the Premises, incurred by Landlord as a result of such failure, plus
interest thereon at the Interest Rate on all amounts not paid by Tenant within
five (5) days of demand, until paid in full.
25. Acceptance of Premises by Tenant: Taking possession of the Premises by
Tenant shall be conclusive evidence as against Tenant that the Premises were in
the condition agreed upon between Landlord and Tenant, and acknowledgment of
satisfactory completion of the fix-up work which Landlord has agreed in writing
to perform, except as otherwise set forth herein.
26. Subordination and Attornment:
(a) This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all present and future ground leases,
overriding leases and underlying leases and/or grants of term of the real
property and/or the Building or the Building Complex now or hereafter existing
and to all deeds of trust, mortgages and building loan agreements, including
leasehold mortgages and building loan agreements, which may now or hereafter
affect the Building or the Building Complex or any of such leases, whether or
not such deeds of trust or mortgages shall also cover other lands or buildings,
to each and every advance made or hereafter to be made under such deeds of trust
or mortgages, and to all renewals, modifications, replacements and extension of
such leases, deeds of trust and mortgages. The provisions of this Paragraph
shall be self-operative and no further instrument of subordination shall be
required. However, in confirmation of such subordination, Tenant shall promptly
execute and deliver to Landlord (or such other party so designated by Landlord)
at Tenant's own cost and expense, within five (5) days after request from
Landlord an instrument, in recordable form if required, that Landlord, the
lessor of any such lease or the holder of any such deed of trust or mortgage or
any of their respective successors in interest or assigns may request evidencing
such subordination. Failure by Tenant to comply with the requirements of this
Paragraph shall be a default hereunder. Notwithstanding the foregoing, in the
event that Tenant does not execute such documents as may be required to confirm
the subordination set forth in this Paragraph, Tenant hereby grants to Landlord
a power of attorney coupled with an interest to act as Tenant's attorney in fact
for the purposes of executing whatever documents are necessary to evidence such
subordination. The leases to which this Lease is, at the time referred to,
subject and subordinate pursuant to this Paragraph are hereinafter sometimes
called "superior leases" and the deeds of trust or mortgages to which this Lease
is, at the time referred to, subject and subordinate are hereinafter sometimes
called "superior deeds of trust" or "superior mortgages". The lessor of a
superior lease or the beneficiary of a superior deed of trust or superior
mortgage or their successors in interest or assigns are hereinafter sometimes
collectively referred to as a "superior party". Notwithstanding the foregoing,
upon Tenant's request, Landlord agrees to request such superior party grant to
Tenant a non-disturbance agreement in the form then being used by such superior
party for such purposes, providing that Tenant, notwithstanding a default by
Landlord, shall be entitled to remain in
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possession of the Premises in accordance with the terms of this Lease for so
long as Tenant shall not be in default of any term, condition or covenant of
this Lease. Further, Tenant shall attorn to such superior party.
(b) Tenant shall take no steps to terminate this Lease, without giving
written notice to such superior party, and a reasonable opportunity to cure
(without such superior party being obligated to cure), any default on the part
of Landlord under this Lease.
(c) If, in connection with the procurement, continuation or renewal of
any financing for which the Building or the Building Complex or of which the
interest of the lessee therein under a superior lease represents collateral in
whole or in part, a lender shall request reasonable modifications of this Lease
as a condition of such financing, Tenant will not unreasonably withhold its
consent thereto provided that such modifications do not increase the obligations
of Tenant under this Lease or adversely affect any rights of Tenant or decrease
the obligations of Landlord under this Lease.
27. Payments After Termination: No payments of money by Tenant to Landlord
after the termination of this Lease, in any manner, or after giving of any
notice (other than a demand for payment of money) by Landlord to Tenant, shall
reinstate, continue or extend the term of this Lease or affect any notice given
to Tenant prior to the payment of such money, it being agreed that after the
service of notice of the commencement of a suit or other final judgment granting
Landlord possession of the Premises, Landlord may receive and collect any sums
of rent due, or any other sums of money due under the terms of this Lease or
otherwise exercise its rights and remedies hereunder. The payment of such sums
of money, whether as rent or otherwise, shall not waive said notice or in any
manner affect any pending suit or judgment theretofore obtained.
28. Authorities for Action and Notice:
(a) Except as otherwise provided herein, Landlord may, for any matter
pertaining to this Lease, act by and through its Building manager or any other
person designated in writing from time to time.
(b) All notices or demands required or permitted to be sent by one
party to the other hereunder as required by law shall be in writing and shall be
deemed to have been validly given or served by delivery of same in person to the
addressee by facsimile, or by depositing same with Fed Ex or other carrier,
service for next business day delivery, or in the United States mail, postage
prepaid, registered or certified mail return receipt requested, addressed as
follows:
LANDLORD: Westmoor Business Park Ltd., LLLP
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. XxXxxxxxxx
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
TENANT: ChannelPoint, Inc.
0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx Xxxxxxxx
Telephone Number: 000-000-0000
Facsimile Number: 000-000-0000
All notices, demands and requests shall be effective upon such personal
delivery upon receipt of facsimile confirmation, or upon being deposited with
Fed Ex or other courier service or in the United States mail as required above.
However, with respect to notices, demands or requests so deposited with Fed Ex
or other courier service or in the United States mail, the time period in which
a response to any such notice, demand or request must be given
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shall commence to run from the next business day after deposit with Fed Ex or
other courier service or the date on the return receipt of the notice, demand or
request reflecting the date of delivery or rejection of the same by the
addressee thereof in the case of a deposit in the United States mail. Rejection
or other refusal to accept or the inability to deliver because of changed
address of which no notice was given shall be deemed to be receipt of the
notice, demand or request sent. By giving to the other party hereto at least 30
days' written notice thereof in accordance with the provisions hereof, the
parties hereto shall have the right from time to time to change their respective
addresses.
29. Liability of Landlord: Landlord's liability under this Lease shall be
limited to Landlord's estate and interest in the Building (or to the proceeds
thereof) and no other property or other assets of Landlord or its partners (if
Landlord is a partnership), agents, employees, legal representatives, successors
or assigns, shall be subject to levy, execution or other enforcement procedure
for the satisfaction of Tenant's remedies under or with respect to this Lease,
the relationship of Landlord and Tenant hereunder or Tenant's use and occupancy
of the Premises. Nothing contained in this Paragraph shall be construed to
permit Tenant to offset against rents due a successor landlord, a judgment (or
other judicial process) requiring the payment of money by reason of any default
of a prior landlord, except as otherwise specifically set forth herein.
30. Brokerage: Landlord is represented by the Xxxxxxxxx Xxxx Company
("Landlord Broker") Tenant represents and warrants that it has dealt only with
Prime West Real Estate Services (the "Tenant Broker") in the negotiation of this
Lease. Landlord shall make payment of the brokerage fee due to the Landlord
Broker and Tenant Broker (through Landlord Broker's Agreement) pursuant to and
in accordance with Landlord's separate agreement with the Landlord Broker.
Tenant hereby agrees to indemnify and hold the Landlord harmless of and from any
and all loss, costs, damages or expenses (including, without limitation, all
attorneys' fees and disbursements) by reason of any claim of or liability to any
other broker or person claiming through Tenant and arising out of or in
connection with the negotiation, execution and delivery of this Lease.
Additionally, Tenant acknowledges and agrees that Landlord shall have no
obligation for payment of any brokerage fee or similar compensation to any
person with whom Tenant has dealt or may in the future deal with respect to
leasing of any additional or expansion space in the Building or renewals or
extensions of this Lease. In the event any claim shall be made against Landlord
by any other broker who shall claim to have negotiated this Lease on behalf of
Tenant or to have introduced Tenant to the Building or to Landlord, Tenant shall
be liable for payment of all reasonable attorneys' fees, costs and expenses
incurred by Landlord in defending against the same, and in the event such broker
shall be successful in any such action, Tenant shall, in addition, make payment
to such Broker.
31. Taxes:
(a) Tenant shall be liable for and shall pay at least ten (10) days
before delinquency and Tenant hereby agrees to indemnify and hold Landlord
harmless from and against any liability in connection with, all taxes levied
against any personal property, fixtures, machinery, equipment, apparatus,
systems and appurtenances placed by or on behalf of Tenant in or about or
utilized by Tenant in, upon or in connection with the Premises ("Equipment
Taxes"). If any Equipment Taxes are levied against Landlord or Landlord's
property or if the assessed value of Landlord's property is increased by the
inclusion therein of a value placed upon such personal property, fixtures,
machinery, equipment, apparatus, systems or appurtenances of Tenant, and if
Landlord, after written notice to Tenant, pays the Equipment Taxes or taxes
based upon such an increased assessment (which Landlord shall have the right to
do regardless of the validity of such levy, but under proper protest if
requested by Tenant prior to such payment and if payment under protest is
permissible), Tenant shall pay to Landlord upon demand, as Additional Rent
hereunder, the taxes so levied against Landlord or the proportion of such taxes
resulting from such increase in the assessment; provided, however, that in any
such event, Tenant shall have the right, on behalf of Landlord and with
Landlord's full cooperation, but at no cost to Landlord, to bring suit in any
court of competent jurisdiction to recover the amount of any such tax so paid
under protest, and any amount so recovered shall belong to Tenant (provided
Tenant has previously paid such amount to Landlord). Notwithstanding the
foregoing to the contrary, Tenant shall cooperate with Landlord to the extent
reasonably necessary to cause the fixtures, furnishings, equipment and other
personal property to be assessed and billed separately from the real property of
which the Premises form a part, and Landlord shall use reasonable efforts to
treat all other Tenants on the same basis.
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(b) Tenant shall pay to Landlord, as Additional Rent, any excise,
sales, privilege or other tax, assessment or other charge (other than income or
franchise taxes) imposed, assessed or levied by any governmental or
quasi-governmental authority or agency upon Landlord on account of this Lease,
the rent or other payments made by Tenant hereunder, any other benefit received
by Landlord hereunder, Landlord's business as a lessor hereunder, or otherwise
in respect of or as a result of the agreement or relationship of Landlord and
Tenant hereunder.
32. Substitution of Premises: Notwithstanding anything herein to the
contrary, Landlord shall have the right at any time and from to time to time to
substitute other premises located within the Building for the Premises subject
to the same terms and conditions set forth herein; provided, however, that the
substituted Premises shall contain at least as much square footage as the
originally leased Premises without any increase in the then rental rate. In
connection therewith, Landlord agrees to pay all reasonable moving expenses of
Tenant and of Tenant's permitted sub-lessees, including the reasonable
replacement of Tenant improvements. Tenant shall be required to move into such
substituted premises within 30 days of notice from Landlord of its exercise of
this right.
33. Rights Reserved to Landlord:
(a) All portions of the Building are reserved to Landlord except the
Premises and the inside surfaces of all walls, windows and doors bounding in the
Premises, but including exterior building walls, core corridor walls and doors
and any core corridor entrance. Landlord also reserves any space in or adjacent
to the Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts,
electric or other utilities, sinks or other building facilities, and the use
thereof, as well as the right to access thereto through the Premises for the
purposes of operation, maintenance and repair, upon written notice of not less
than twenty-four (24) hours, except in the event of emergencies or apparent
emergencies, when no prior notice shall be required.
(b) Landlord shall have the following rights without liability to
Tenant for damage or injury to property, person or business (all claims for
damage being hereby waived and released), and without effecting an eviction or
disturbance of Tenant's use or possession of the Premises or giving rise to any
claim for setoffs or abatement of rent:
(1) To enter the Premises as more fully provided in this Lease.
(2) To install and maintain signs on the exterior and interior of
the Building, except within the Premises, provided the signs do not block either
completely or partially the exterior windows of the Premises.
(3) To have pass keys to the Premises.
(4) To have access to all mail chutes according to the rules of the
United States Postal Service.
(5) To do or permit to be done any work in or about the exterior of
the Building or any adjacent or nearby building, land, street or alley.
(6) To grant to anyone the exclusive right to conduct any business
or render any service in the Building, provided such exclusive right shall not
operate to exclude Tenant from the use expressly permitted by this Lease.
(7) To increase the size or alter the configuration of the Common
Area.
34. Force Majeure Clause: Wherever there is provided in this Lease a time
limitation for performance by Landlord of any obligation, including but not
limited to obligations related to construction, repair, maintenance or service,
the time provided for shall be extended for as long as and to the extent that
delay in compliance with such limitation is due to an act of God, governmental
control or other factors beyond the reasonable control of Landlord.
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35. Signage:
(a) No sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the inside or outside of the Building unless of such
color, size and style and in such place upon or in the Building as shall be
first designated by Landlord, but there shall be no obligation or duty on
Landlord to allow any sign, advertisement or notice to be inscribed, painted or
affixed on any part of the inside or outside of the Building. A directory in a
conspicuous place in the Building lobby area, with the Tenant's name along with
the names of the other tenants in the Building, shall be provided by Landlord on
a one time basis. Any necessary revision to such directory shall be made by
Landlord, at Tenant's expense, within a reasonable time after written notice
from Tenant of the change making the revision necessary. Landlord shall have the
right to remove all nonpermitted signs without notice to Tenant and at the
expense of Tenant.
(b) Tenant shall only be permitted to install building standard signs
and logos, subject to Landlord's prior written consent and criteria as to size,
design, materials and location.
36. Attorneys' Fees: In the event of any dispute hereunder, or any default
in the performance of any term or condition of this Lease, the prevailing party
shall be entitled to recover all costs and expenses associated therewith,
including reasonable attorneys' fees.
37. Hazardous Materials:
(a) Tenant shall not cause or permit any Hazardous Material to be
brought upon, kept, or used in or about the Premises by Tenant, its agents,
employees, contractors, licensees or invitees, without the prior written consent
of Landlord (which Landlord shall not unreasonably withhold as long as Tenant
demonstrates to Landlord's reasonable satisfaction that such Hazardous Material
is necessary or useful to Tenant's business and will be used, kept and stored in
a manner that complies with all laws regulating any such Hazardous Material so
brought upon or used or kept in or about the Premises). If Tenant breaches the
obligations stated in the preceding sentence, or if the presence of Hazardous
Material on the Premises caused or permitted by Tenant results in
contamination of the Premises or Building Complex, or any part thereof, or if
contamination of the Premises or Building Complex by Hazardous Material
otherwise occurs for which Tenant is legally liable to Landlord for damage
resulting therefrom, then Tenant shall indemnify, defend and hold Landlord, its
agents, employees, legal representatives, successors and assigns, harmless from
any and all claims, judgments, damages, penalties, fines, costs, liabilities, or
losses (including, without limitation, diminution in value of the Premises and
Building Complex, damages for the loss or restriction on use of any rentable or
usable space or of any amenity of the Premises or Building Complex, damages
arising from any adverse impact on marketing of space in the Building, and sums
paid in settlement of claims, attorneys' fees, consultant fees and expert fees)
which arise during or after the Lease term as a result of such contamination.
This indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any cleanup,
remedial, removal or restoration work required by any federal, state, or local
governmental agency or political subdivision because of Hazardous Material
present in or about the Building Complex or the soil or ground water on or under
the Building Complex. Without limiting the foregoing, if the presence of any
Hazardous Material on or about the Building Complex caused or permitted by
Tenant results in any contamination of any portion thereof, Tenant shall
promptly take all actions at its sole expense as are necessary to return the
Building Complex to the condition existing prior to the introduction of any such
Hazardous Material, subject to obtaining Landlord's prior written consent to the
actions to be taken by Tenant. Landlord may properly require its consent to the
selection of the contractors and other experts involved in the inspection,
testing and removal or abatement activities, the scope of activities to be
performed, the manner and method for performance of such activities, and such
other matters as may be required or requested by Landlord for the safety of and
continued use of the Building Complex and all occupants thereof. The obligations
and liabilities of Tenant herein shall survive expiration or termination of this
Lease.
(b) "Hazardous Material", as used in this Lease, shall be construed in
its broadest sense and shall include asbestos, other asbestotic material (which
is currently or may be designated in the future as a Hazardous
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Material), any petroleum base products, pesticides, paints and solvents,
polychlorinated biphenyl, lead, cyanide, DDT, acids, ammonium compounds and
other chemical products (excluding commercially used cleaning materials in
ordinary quantities) and any substance or material if defined or designated as a
hazardous or toxic substance, or other similar term, by any federal, state or
local law, statute, regulation, or ordinance affecting the Building Complex or
Premises presently in effect or that may be promulgated in the future, as such
statutes, regulations and ordinances may be amended from time to time.
38. Americans with Disabilities Act.
(a) Landlord shall, subject to reimbursement as part of the Building's
Operating Expenses, be responsible for any alterations, modifications or
improvements to the Common Areas which are required under Title III of the
Americans With Disabilities Act ("ADA"). Not included as part of the Building's
Operating Expenses shall be any alterations or improvements made to another
tenant's premises in the Building.
(b) Tenant shall, at Tenant's sole cost and expense, be responsible for
any alterations, modifications or improvements to the Premises, and the
acquisition of any auxiliary aids, required under the ADA, including all
alterations, modifications or improvements required: (1) as a result of Tenant
(or any subtenant, assignee or concessionaire) being a Public Accommodation (as
defined in the ADA); (2) as a result of the Premises being a Commercial Facility
(as defined in the ADA); (3) as a result of any leasehold improvements made to
the Premises by, or on behalf of, Tenant or any subtenant, assignee or
concessionaire (whether or not Landlord's consent to such leasehold improvements
was obtained); or (4) as a result of the employment by Tenant (or any subtenant,
assignee or concessionaire) of any individual with a disability.
(c) With respect to the use restrictions set forth in Paragraph 6 of
this Lease, and the restrictions on assignments and subletting set forth in
Paragraph 17 of this Lease, it is hereby specifically understood and agreed that
Landlord shall have no obligation to consent to, or permit, a use of the
Premises, or an assignment of the Lease or a sublease of the Premises
(collectively herein a "Use Change") if such Use Change would require the making
of any alterations, modifications or improvements to the Premises or the Common
Areas, or the acquisition of any auxiliary aids, required under the ADA, unless
Tenant performs all such acts and satisfies Landlord's requirements for
financial responsibility for the costs of such compliance (which may include, by
way of example, posting of a completion bond, or establishment of an escrow
account).
(d) With respect to the Leasehold Improvements (as described in the
Work Letter Agreement), Tenant shall be responsible for compliance with the ADA
in the design and layout of the Leasehold Improvements and Landlord shall have
no responsibility therefore.
39. Bankruptcy or Insolvency. If the Tenant becomes a debtor under Chapter
7 of the United States Bankruptcy Code, or in the event that a petition for
reorganization or adjustment of debts is filed concerning the Tenant under
Chapter 11 or Chapter 13 of the Bankruptcy Code, or a proceeding filed under
Chapter 7 is transferred to Chapter 11 or 13, the Trustee or the Tenant, as
Debtor-in-Possession, shall be deemed to have rejected this Lease. No election
by the Trustee or Debtor-in-Possession to assume this Lease shall be effective
unless each of the following conditions, which Landlord and Tenant hereby
acknowledge to be commercially reasonable in the context of a bankruptcy
proceeding, has been satisfied, and the Landlord has so acknowledged in writing:
(a) The Trustee or Debtor-in-Possession has cured, or has provided the
Landlord "adequate assurance" (as hereinafter defined) that from the date of
such assumption, the Trustee or Debtor-In-Possession will promptly cure all
monetary and non-monetary defaults under this Lease.
(b) The Trustee or Debtor-in-Possession has compensated, or has
provided to the Landlord adequate assurance that within ten (10) days of the
date of assumption, the Landlord will be compensated, for any pecuniary loss
incurred by the Landlord arising from default of the Tenant, the Trustee or the
Debtor-in-Possession as recited in the Landlord's written statement of pecuniary
loss sent to the Trustee or Debtor-in-Possession.
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(c) The Trustee or Debtor-in-Possession has provided the Landlord with
adequate assurance of future performance of each of the Tenant's, the Trustee's,
or Debtor-in-Possession's obligations under this Lease; provided, however, that:
(1) The Trustee or Debtor-in-Possession shall also deposit with the
Landlord, as security for the timely payment of rent and other sums due
hereunder, an amount equal to three months Base Rent, Additional Rent and other
monetary charges accruing under this Lease; and
(2) The obligations imposed upon the Trustee or
Debtor-in-Possession shall continue with respect to the Tenant or any assignee
of this Lease after the completion of the bankruptcy proceedings.
(d) For purposes of this Paragraph, Landlord and Tenant acknowledge
that, in the context of the bankruptcy proceeding of the Tenant, at a minimum,
"adequate assurance" shall mean:
(1) The Trustee or Debtor-in-Possession will continue to have
sufficient unencumbered assets after the payment of all secured obligations and
administrative expenses to assure the Landlord that the Trustee or
Debtor-in-Possession will have sufficient funds to fulfill all of the
obligations of Tenant under this Lease; or
(2) The Bankruptcy Court shall have entered an order segregating
sufficient cash payable to the Landlord, and the Trustee or Debtor-in-Possession
shall have granted to the Landlord a valid and perfected first lien and security
interest or mortgage in property of the Tenant, the Trustee or
Debtor-in-Possession, acceptable as to value and kind to the Landlord, in order
to secure to the Landlord the obligation of the Tenant, Trustee or
Debtor-in-Possession to cure the monetary or non-monetary defaults under the
Lease within the time period set forth above.
(e) The following conditions shall apply to any assignment of this
Lease in Bankruptcy Proceedings:
(1) If the Trustee or Debtor-in-Possession has assumed this Lease
and elects to assign the Lease to any other person, such interest or estate of
Tenant in this Lease may be so assigned only if the Landlord has acknowledged in
writing that the intended assignee can provide to the Landlord "adequate
assurance of future performance" (as hereinafter defined) of all of the terms,
covenants and conditions of this Lease to be performed by the Tenant.
(2) For the purposes of this provision, Landlord and Tenant
acknowledge that, in the context of a bankruptcy proceeding, at a minimum,
"adequate assurance of future performance" shall mean that each of the following
conditions has been satisfied, and the Landlord has so acknowledged in writing:
A. The proposed assignee has submitted a current financial
statement audited by a Certified Public Accountant which shows the net worth and
working capital and amounts determined by Landlord to be sufficient to assure
the future performance by such assignee of all of Tenant's obligations under
this Lease;
B. The proposed assignee, if requested by the Landlord, shall
have obtained guarantees in form and substance satisfactory to the Landlord from
one or more persons who satisfy the Landlord's standards of creditworthiness;
C. The Landlord has obtained all consents or waivers from any
third party required under any lease, mortgage, financing arrangement, or other
agreement by which the Landlord is bound, in order to permit the Landlord to
consent to such assignment.
40. Miscellaneous:
(a) The rules and regulations attached hereto as Exhibit E, as well as
such rules and regulations as may hereafter be adopted by Landlord for the
safety, care and cleanliness of the Premises and the Building and the
preservation of good order thereon, are hereby expressly made a part hereof, and
Tenant agrees to obey all such rules
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and regulations. The violation of any of such rules and regulations by Tenant
shall be deemed a breach of this Lease by Tenant affording Landlord all the
remedies set forth herein. Landlord shall not be responsible to Tenant for the
nonperformance by any other tenant or occupant of the Building of any of said
rules and regulations.
(b) The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners of the Building at the time in question, and in
the event of any transfer or transfers of the title thereto, Landlord herein
named (and in the case of any subsequent transfers or conveyances, the then
grantor) shall be automatically released from and after the date of such
transfer or conveyance of all liability in respect to the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed and relating to events occurring thereafter; provided
that any funds in the hands of Landlord or the then grantor at the time of such
transfer in which Tenant has an interest shall be turned over to the grantee,
and any amount then due and payable to Tenant by Landlord or the then grantor
under any provisions of this Lease shall be paid to Tenant.
(c) As used in this Lease, the term "ordinary business hours" shall
mean the hours from 7:00 a.m. to 6:00 p.m., Monday through Friday, and 8:00 a.m.
to 1:00 p.m. on Saturday, except for New Year's Day, Presidents' Day, Memorial
Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and any other
national or state holiday as may be established from time to time ("Holidays").
(d) This Lease shall be construed as though the covenants herein
between Landlord and Tenant are independent and not dependent and Tenant shall
not be entitled to any setoff of the rent or other amounts owing hereunder
against Landlord, if Landlord fails to perform its obligations set forth herein,
except as herein specifically set forth; provided, however, the foregoing shall
in no way impair the right of Tenant to commence a separate action against
Landlord for any violation by Landlord of the provisions hereof so long as
notice is first given to Landlord and any holder of a mortgage or deed of trust
covering the Building Complex or any portion thereof whose address Tenant has
been notified in writing and so long as an opportunity has been granted to
Landlord and such holder to correct such violation as provided in Paragraph
40(h) hereof.
(e) If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there shall be added as
a part of this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable, provided such addition does not increase or decrease the
obligations of or derogate from the rights or powers of either Landlord or
Tenant.
(f) The captions of each paragraph are added as a matter of convenience
only and shall be considered of no effect in the construction of any provision
or provisions of this Lease.
(g) Except as herein specifically set forth, all terms, conditions and
covenants to be observed and performed by the parties hereto shall be applicable
to and binding upon their respective heirs, administrators, executors,
successors and assigns. The terms, conditions and covenants hereof shall also be
considered to be covenants running with the land.
(h) Except as otherwise specifically provided herein, in the event
Landlord shall fail to perform any of the agreements, terms, covenants or
conditions hereof on Landlord's part to be performed, and such nonperformance
shall continue for a period of thirty (30) days after written notice thereof,
from Tenant to Landlord, or if such performance cannot be reasonably had within
such thirty (30) day period, and Landlord shall not in good faith have commenced
such performance within such thirty (30) day period and proceed therewith to
completion, it shall be considered a default of Landlord under this Lease.
Tenant shall give written notice to Landlord in the matter herein set forth and
shall afford Landlord a reasonable opportunity to cure any such default. In
addition, Tenant shall send notice of such default by certified or registered
mail, with proper postage prepaid, to the holder of any mortgages
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or deeds of trust covering the Building Complex or any portion thereof of whose
address Tenant has been notified in writing and shall afford such holder a
reasonable opportunity to cure any alleged default on Landlord's behalf.
(i) If there is more than one entity or person which or who are the
Tenants under this Lease, the obligations imposed upon Tenant under this Lease
shall be joint and several.
(j) No act or thing done by Landlord or Landlord's agent during the
term hereof, including but not limited to any agreement to accept surrender of
the Premises or to amend or modify this Lease, shall be deemed to be binding
upon Landlord unless such act or things shall be by an officer of Landlord or a
party designated in writing by Landlord as so authorized to act. The delivery of
keys to Landlord, or Landlord's agent, employees or officers shall not operate
as a termination of this Lease or a surrender of the Premises. No payment by
Tenant or receipt by Landlord of a lesser amount than the monthly rent herein
stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
available to Landlord.
(k) Landlord shall have the right to construct other buildings or
improvements in any common area, or any other area designated by Landlord for
use by tenants or to change the location, character or make alterations of or
additions to any of said common areas or other areas. Landlord, during the
entire term of this Lease, shall have the right to change the number and name of
the Building at any time without liability to Tenant.
(l) Tenant acknowledges and agrees that it has not relied upon any
statements, representations, agreements or warranties, except such as are
expressed in this Lease.
(m) Notwithstanding anything to the contrary contained herein,
Landlord's liability under this Lease shall be limited to its interests in this
building.
(n) Time is of the essence hereof.
(o) Tenant and Landlord and the party executing this Lease on behalf of
each of them represent to each other that such party is authorized to do so by
requisite action of the board of directors or partners, as the case may be, and
agree upon request to deliver to each other a resolution or similar document to
that effect.
(p) This Lease shall be governed by and construed in accordance with
the laws of the State where the Premises are located.
(q) This Lease, together with the exhibits attached hereto, contains
the entire agreement of the parties and may not be amended or modified in any
manner except by an instrument in writing signed by both parties. Tenant shall
not record this Lease or a memorandum hereof.
(r) In the event Landlord makes available any area in the Building
complex for use as an athletic/health facility, Tenant agrees that Landlord
shall not be liable for any injury or damage to persons or property arising out
of the use of such health facility by Tenant, its employees or invitees, and
further agrees to indemnify Landlord against any claims, demands or damages
associated therewith. Tenant further agrees to execute and deliver to Landlord,
upon request, an indemnification agreement, in form acceptable to Landlord, as a
condition precedent to use of any such health facility by Tenant and its
employees.
(s) Tenant shall not use the name of the Building, the Building Complex
or the development in which the Building is situated as part of its legal or
trade name, nor for any purpose other than as an address for the business to be
conducted by Tenant in the Premises.
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(t) The submission or delivery of this document for examination and
review does not constitute an option, an offer to lease space in the Building or
an agreement to lease. This document shall have no binding effect on the parties
unless and until executed by both Landlord and Tenant.
(u) Tenant may not record this Lease and any such recordation shall at
the option of Landlord, be a default of Tenant hereunder.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the day
and year first above written.
LANDLORD:
WESTMOOR BUSINESS PARK, LTD., a Colorado
limited liability limited partnership
By: Westfield Development Company, Inc.,
a Colorado corporation, general partner
By: /s/ XXXXX XXXXXXXX
-------------------------------------
Its: Executive Vice President
------------------------------------
TENANT:
CHANNELPOINT, INC., a Colorado corporation
By: /s/ XXXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
-----------------------------------
Its: CFO
------------------------------------
STATE OF COLORADO )
)SECTION
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 12th day of
July, 1999, by Xxxxx X. Xxxxxxxx as Executive V.P. of Westfield Development
Company, Inc., a Colorado corporation as general partner of Westmoor Business
Park Ltd., LLLP, a Colorado limited liability limited partnership.
Witness my hand and official seal.
My commission expires: 10-26-02
/s/ XXXXXXX X. XXXXXXXX
------------------------------------------
Notary Public
[SEAL]
My Commission Expires 10-26-2002
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STATE OF COLORADO )
)SECTION
COUNTY OF EL PASO )
The foregoing instrument was acknowledged before me this 12th day of
July, 1999, by Xxxxxxx Xxxxxxxx as CFO of ChannelPoint, Inc.
Witness my hand and official seal.
My commission expires: 4/3/2002
[SEAL]
/s/ XXXX XX XXXXXXX
------------------------------------------
Notary Public
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ADDENDUM
This Addendum is attached to and forms an integral part to the Lease by and
between Westmoor Business Park Ltd., LLLP, a Colorado limited liability limited
partnership and ChannelPoint, Inc., a Colorado corporation, for the Premises
known as Suite 210, 10155 Westmoor Drive, Westminster, Colorado and shall
supercede the terms and conditions of the Lease and where inconsistent govern
the rights and obligations of the parties. All definitions used herein shall
except as set forth herein have the meanings set forth in the Lease.
1. Expansion Option: Tenant shall have the right to enlarge the area of the
Premises by a minimum of 6,000 additional square feet of rentable area. In the
event Tenant notifies Landlord ("Expansion Notice") of its desire to lease a
minimum of 6,000 additional square feet of rentable area, Landlord shall use
reasonable efforts to deliver said additional space ("Expansion Space") either
in the Tenant's existing Building or another building within Westmoor
Technology Park as determined by Landlord, within nine (9) months of the receipt
of Tenant's notice. Upon delivery of the Expansion Space the terms and
conditions of the Lease shall be modified as follows:
A. The term of the Lease for the Expansion Space shall be five (5)
years.
B. If the Expansion Space is within the Building and the Expansion
Notice is delivered within the first eighteen (18) months of the
Lease Commencement Date, the Base Rent for the Expansion Space
shall be the rate then in effect for the existing Premises and
the Tenant Improvement Allowance shall be the same as for the
Premises, provided the expansion occurs in space not previously
leased.
C. The term of the Lease for the existing Premises shall be extended
so as to be coterminous with the term of the Lease for the
Expansion Space. The Base Rent for the Expansion Space shall be
as provided for under this Lease for the Premises. If however,
the Expansion Space has previously been occupied, the Tenant
Improvement Allowance shall be the then equivalent to that which
is being given for comparable space being leased within the Park
at comparable rental rates.
D. If the Expansion Notice is received after the first eighteen (18)
months of the Primary Lease Term or the expansion occurs at any
time in a building within Westmoor Technology Park other than the
Building, the Base Rental Rate shall be the then current market
rate being charged for the Expansion Space as determined by
Landlord.
E. The Expansion Notice shall be delivered no later than twelve (12)
months prior to the expiration of the Primary Lease Term.
2. Consolidation Option: In the event Tenant notifies Landlord
("Consolidation Notice") of its desire to consolidate its existing Premises with
a minimum of 6,000 rentable square feet of additional space into a new location
("Consolidation Space"), Landlord shall use reasonable efforts to deliver said
Consolidation Space either in Tenant's existing Building or another building
within Westmoor Technology Park as determined by Landlord, within nine (9)
months of the receipt of Tenant's Consolidation Notice. The terms and conditions
of the Lease with respect to the Consolidation Space are as follows:
A. A new Lease shall be entered into for the Consolidation Space
("Consolidation Space Lease"). The term of the Lease for the
Consolidation Space shall be not less than five (5) years.
B. If the Consolidation Space is within the Building and
Consolidation Notice is delivered within the first eighteen (18)
months of the Lease Commencement Date, the Base Rent for
1
37
the Consolidation Space shall be the rate then in effect for the
existing Premises and the Tenant Improvement Allowance shall be
the same as for the Premises, provided the consolidation occurs
in space not previously leased.
C. If Consolidation Notice is received after the first eighteen (18)
months of the Primary Lease Term or the consolidation occurs at
any time in a building within Westmoor Technology Park other than
the Building, the Base Rental Rate shall be the then current
market rate being charged for the Consolidation Space as
determined by Landlord, and the Tenant Improvement Allowance
shall be equivalent to that then offered for space in the Park.
D. If the Consolidation Space under either (B) or (C) above has been
previously leased and occupied, the Tenant Improvement Allowance
shall be the then equivalent to that which is being changed for
comparable space being re-leased within Westmoor Technology Park
as determined by Landlord.
E. The Lease for the Premises shall be terminated effective as of
the Commencement Date of the Consolidation Space Lease, and
Tenant shall pay (i) the unamortized portion of all commissions
paid under the Lease at an annual interest rate of 10%, and (ii)
a cancellation charge based on the following formulas:
o If the Consolidation Space is more than 15,000 net rentable
square feet, but less than 20,000 net rentable square feet,
Tenant shall pay a lease cancellation charge equal to the
product of $7.50 multiplied by the net rentable square feet
of the Premises at the time of relocation;
o If the Consolidation Space is greater than 20,000 net
rentable square feet, but less than 25,000 net rentable
square feet, Tenant shall pay a lease cancellation charge
equal to the product of $5.00 multiplied by the net rentable
square feet of the Premises at the time of relocation;
o If the Consolidation Space is greater than 25,000 net
rentable square feet, but less than 30,000 net rentable
square feet, Tenant shall pay a lease cancellation charge
equal to the product of $2.50 multiplied by the net rentable
square feet of the Premises at the time of relocation; or
o If the Consolidation Space is greater than 30,000 net
rentable square feet, no lease cancellation charge shall be
payable.
F. Notwithstanding the foregoing, if additional space is available
on the same floor as Tenant's Premises, Landlord shall not be
obligated to consolidate Tenant's premises into another building
in Westmoor Technology Park. Tenant shall then lease additional
space on the same floor as the Premises, whether or not
contiguous to the Premises, under the terms and conditions
described in this Addendum in Section 1, Expansion Option.
G. The Consolidation Notice shall be delivered no later than twelve
(12) months prior to the expiration of the Primary Lease Term.
2
38
3. Termination Right: If Landlord is unable to provide Expansion Space in
the park for Tenant's expansion as detailed in Section 1 above or Consolidation
Space as detailed in Section 2 above, Tenant shall have the right to terminate
the Lease effective 180 days after Landlord notifies Tenant that it is unable to
provide additional space in the Park, such notification from Landlord shall be
delivered to Tenant no more than thirty (30) days after Landlord receives
Tenant's notice of the exercise of the Expansion Option or the Consolidation
Option. Following notice from Landlord that additional space in the Park is not
available, Tenant shall have forty-five (45) days to locate suitable space to
which to relocate and notify Landlord of Tenant's intent to terminate the Lease,
in which case Tenant shall be obligated for paying (i) the unamortized portion
of the Tenant Improvement Allowance and all commissions paid under the lease at
an annual interest rate of ten percent (10%), and (ii) three (3) months Base
Rent. During that forty-five (45) days, Tenant shall also have the option to
rescind its option to terminate the Lease, thus remaining in the Premises for
the remainder of the Lease Term.
TENANT: LANDLORD:
CHANNELPOINTE, INC., WESTMOOR BUSINESS PARK, LTD.,
a Colorado corporation a Colorado limited liability
limited partnership
By: Westfield Development Company,
Inc., a Colorado corporation,
general partner
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXXX X. XXXXXXXX
----------------------------- -----------------------------
Name: Its: Executive Vice President
--------------------------- ----------------------------
Title:
--------------------------
3
39
EXHIBIT A
[DIAGRAM]
40
EXHIBIT A-l
METHODOLOGY OF CALCULATION
Building Rentable Area:
Gross Building Area less penetrations through second floor per Exhibit
A-lb.
Useable Area:
Rentable Area less common areas (crosshatched) per Exhibits A-la and A-lb.
Multiplier:
The factor established by dividing the rentable area by the useable area on
a floor-by-floor basis.
Tenant's Rentable Area:
Area (useable) occupied by Tenant measured as follows:
o To exterior of exterior wall line at exterior walls
o To Tenant side of all interior or common area walls
o To centerline of adjoining tenant demising wall multiplied by the
floor multiplier
A-1-1
41
EXHIBIT B-1a
[DIAGRAM]
42
EXHIBIT B-1b
[DIAGRAM]
43
EXHIBIT B
BUILDING THREE
Xxx 0, Xxxxx 0, Xxxxxxxx Xxxxxxxxxx Xxxx, Xxxx of Westminster, County of
Jefferson, State of Colorado.
B-1
44
EXHIBIT C
ESTOPPEL AND COMMENCEMENT DATE CERTIFICATE
THIS ESTOPPEL AND COMMENCEMENT DATE CERTIFICATE ("Certificate") is
executed this ___ day of ____________, 1999 by WESTMOOR BUSINESS PARK LTD.,
LLLP, a Colorado limited liability limited partnership ("Landlord"), and
CHANNELPOINT, INC., a Colorado corporation ("Tenant") with respect to and
forming a part of that certain Building Lease ("Lease") dated
________________________________, 1999, for the premises commonly known as
______________________________, Colorado ____________ ("Premises").
WITNESSETH
WHEREAS, the parties desire to reaffirm and/or amend and certify to certain
provisions of the Lease; and
WHEREAS, the parties desire that the matters set forth herein be conclusive
and binding on the parties.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Lease Commencement Date is deemed and agreed to be ____________,
19__, and the Lease Termination Date is agreed and deemed to be
_________________, 19__, unless sooner terminated, as provided therein.
2. Tenant's first installment of Base Rent in the amount of
________________________ Dollars ($ ) for the period of ____ (is due on)
(was paid on) ___________, 19__.
3. Tenant's first installment of Tenant's Pro Rata Share of Operating
Expenses in the amount of ________________________________________ Dollars
($ ) _____ (is due on) (was paid on) ___________, 19___.
4. On _____________, 19__, Tenant deposited with Landlord a security
deposit in the form of _______________,in the amount of _______________________
Dollars ($___________).
5. By execution hereof, Tenant acknowledges and agrees that all
improvements or other work required of Landlord has been satisfactorily
performed and Tenant hereby accepts the Premises in full compliance with the
terms and conditions of the Lease.
6. Except as may be amended herein, all terms and conditions of the Lease
shall continue in full force and effect and are hereby republished, ratified
and reaffirmed in their entirety.
7. This Certificate shall be binding upon and may be relied upon by the
parties hereto and their respective legal representatives, successors and
assigns.
C-1
45
IN WITNESS WHEREOF, the parties have executed this Certificate as of the
day and year first above written.
LANDLORD:
WESTMOOR BUSINESS PARK, LTD., a Colorado
limited liability limited partnership
By: Westfield Development Company, Inc.,
a Colorado corporation, general partner
By:
-------------------------------------
Its:
------------------------------------
TENANT:
CHANNELPOINT, INC., a Colorado corporation
By: /s/ XXXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
-----------------------------------
Title: CFO and Senior VP
----------------------------------
STATE OF COLORADO )
)SS
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this ______ day of
___________, 19____, by ___________as of Westfield Development Company, Inc., as
a Colorado corporation as general partner of Westmoor Business Park Ltd., LLLP,
a Colorado limited liability limited partnership.
Witness my hand and official seal.
My commission expires:
------------------------------------------
Notary Public
C-2
46
STATE OF COLORADO )
)SECTION
COUNTY OF EL PASO )
The foregoing instrument was acknowledged before me this 9th day of
July, 1999, by Xxxxxxx Xxxxxxxx as CFO and Senior VP of ChannelPoint, Inc.
Witness my hand and official seal.
My commission expires: 4/31/2002
[SEAL]
/s/ XXXX XX XXXXXXX
------------------------------------------
Notary Public
C-3
47
EXHIBIT D
WORK LETTER AGREEMENT
This Work Letter ("Work Letter") Agreement supplements that certain lease
(hereinafter referred to as the "Lease") dated and executed concurrently
herewith by and between WESTMOOR BUSINESS PARK LTD., LLLP, a Colorado limited
liability limited partnership (hereinafter referred to as "Landlord"), and
CHANNELPOINT, INC., a Colorado corporation. (hereinafter referred to as
"Tenant") with the terms defined in the Lease to have the same definition where
used herein.
1. Plans and Specifications. Landlord agrees to improve the Premises in
accordance with the plans and specifications ("Plans and Specifications")
attached hereto as Exhibit D-l and in accordance with the procedures set forth
below.
2. Certain Definitions. For purposes of this Work Letter, the following
defined terms are used: They are:
Tenant's Representative: Xxx Xxxxxxxx
Landlord's Representative: Xxxxxx Xxxxx / Xxxx Xxxxx
Submission Date: \N/A
Tenant Extra Work:
(a) work in excess of the Tenant Finish Allowance;
(b) all modifications, changes and change Orders (as defined in
Paragraph 8) requested by Tenant to the Plans and Specifications;
(c) all interior decorating services and decorator items; and
(d) relocation of any sprinkler lines, sprinkler heads, HVAC
component or other item previously installed by Landlord in the Building.
Tenant Finish Allowance: $22.00 (non-cash) per rentable square foot.
Any capitalized term which is used in this Work Letter but not defined in this
Work Letter has the meaning set forth for such term in the Lease.
3. Representatives. Landlord appoints Landlord's Representative to act for
Landlord in all matters covered by this Work Letter. Tenant appoints Tenant's
Representative to act for Tenant in all matters covered by this Work Letter. All
inquiries, requests, instructions, authorizations and other communications with
respect to the matters covered by this Work Letter will be made to Landlord's
Representative or Tenant's Representative, as the case may be. Tenant will not
make any inquiries of or request to, and will not give any instructions or
authorizations to, any other employee or agent of Landlord, including Landlord's
architect, engineers and contractors or any of their agents or employees, with
regard to matters covered by this Work Letter. Either party may change its
Representative under this Work Letter at any time by three (3) days' prior
written notice to the other party.
4. Building Standard. Except as shown or set forth in the Plans and
Specifications, Tenant must use items prescribed by Landlord for the Building
(the "Building Standard") in order to assure the consistent quality and
appearance of the Building.
D-1
48
5. Landlord Work and Tenant Extra Work.
(a) Landlord will pay as much as the non-cash Tenant Finish Allowance
for the construction of Tenant's improvements in the Premises in accordance with
the Plans and Specifications (including, without limitation, all permits, taxes,
and construction management, architectural, engineering and construction
contractor's fees associated with the construction).
Tenant may be entitled to a credit against first Base Rents due for any Tenant
Finish Allowance which is not used.
(b) Tenant will pay for the costs of all Tenant Extra Work (including,
without limitation, permits, taxes, and all space planning, architectural,
engineering and construction contractor's fees associated with the Tenant Extra
Work, and an amount sufficient to reimburse Landlord for overhead and related
expenses incurred in connection with the Tenant Extra Work). All requested
Tenant Extra Work will be subject to Landlord's prior written approval in
accordance with Paragraph 6.
6. Landlord's Approval. Landlord, in its sole discretion, may withhold its
approval of any Tenant Space Plan, Tenant Work Drawings, Tenant Extra Work or
Change Orders which require work which:
(a) exceeds or affects the structural integrity of the Building, or any
part of the heating, ventilating, air conditioning, plumbing, mechanical,
electrical, communication or other systems of the Building;
(b) is not approved by the holder of any mortgage or deed of trust
encumbering the building at the time the work is proposed;
(c) would not be approved by a prudent owner of property similar to the
Building;
(d) violates any agreement which affects the Building or binds
Landlord;
(e) Landlord reasonably believes will reduce the market value of the
Premises or the Building at the end of the Term;
(f) does not conform to applicable building code or is not approved by
any governmental authority with jurisdiction over the Premises.
7. Schedule of Tenant Improvement Activities.
(a) On or before the Submission Date, Tenant will submit to Landlord
the improvement plan for the Premises (the "Tenant Space Plan"). Within five (5)
days after its receipt of the proposed Tenant Space Plan, Landlord shall provide
written notice of whether or not Landlord approves the proposed Tenant Space
Plan. If Landlord fails to give Tenant said notice by the fifth day, then the
Tenant Space Plan shall be deemed approved. If Landlord's notice objects to the
proposed Tenant Space Plan, the notice will set forth how the proposed Tenant
Space Plan fails to meet Landlord's requirements and how the proposed Tenant
Space Plan must be changed in order to overcome Landlord's objections. Tenant
will then submit a revised Tenant Space Plan to Landlord.
(b) Within 15 days after approval or deemed approval of the Tenant
Space Plan, Tenant shall furnish to Landlord the construction drawings the
"CD's" for the construction of Tenant's Improvements (the "Improvements"). The
CD's shall be in such a condition so as to allow the issuance of a building
permit for the construction.
D-2
49
8. Payment for Tenant Extra Work. Tenant will pay to Landlord, in advance,
the total amount payable by Tenant for Tenant Extra Work.
9. Change Orders. Tenant may authorize changes in work during construction
only by written instructions to Landlord's Representative on a form approved by
Landlord. All such changes will be subject to Landlord's prior written approval
in accordance with Paragraph 6. Prior to commencing any change, Landlord will
prepare and deliver to Tenant, for Tenant's approval, a change order (the
"Change Order") setting forth the total cost of such change, which will include
associated architectural, engineering and construction contractor's fees, and an
amount sufficient to reimburse Landlord for overhead and related expenses
incurred in connection with the Change Order. If Tenant fails to approve and pay
for such Change Order within five (5) days after delivery by Landlord, Tenant
will be deemed to have withdrawn the proposed change and Landlord will not
proceed to perform the change. Upon Landlord's receipt of Tenant's approval and
payment, Landlord will proceed to perform the change.
10. Completion and Commencement Date. As provided in Section 2 and 20 of
the Lease, the Term of the Lease (and therefore Tenant's obligation for the
payment of Rent) shall not commence until Landlord has substantially completed
all work to be performed by Landlord as set forth in this Work Letter; provided,
however, that if Landlord is delayed in substantially completing such work as a
result of:
(a) late submission of Tenant information, Space Plan or CD's;
(b) Change Orders requested by Tenant;
(c) delays in obtaining non-Building standard construction materials
requested by Tenant;
(d) Tenant's failure to timely approve any item requiring Tenant's
approval;
(e) any other delays by Tenant; and
(f) any other act or omission of Tenant or Tenant's architects,
engineers, contractors or subcontractors (all of which shall be deemed to be
delays caused by Tenant),
the foregoing shall be items of "Tenant Delay",
then the Commencement Date shall only be extended pursuant to Section 20 of the
Lease until the date on which Landlord would have substantially completed
performance of such work but for such delays. Except as provided in the Lease,
postponement of the commencement of the Term shall be in full settlement of all
claims that Tenant might otherwise have against Landlord by reason of the
Premises not being ready for occupancy by Tenant as of the originally scheduled
Commencement Date set forth in Section 2 of the Lease.
D-3
50
IN WITNESS WHEREOF, the parties have executed this Work Letter
Agreement this 12th day of July, 1999.
LANDLORD:
WESTMOOR BUSINESS PARK, LTD., LLLP, a Colorado
limited liability limited partnership
By: Westfield Development Company, Inc.,
a Colorado corporation, general partner
By: /s/ XXXXX X. XXXXXXXX
-------------------------------------
Its: Executive Vice President
------------------------------------
TENANT:
CHANNELPOINT, INC., a Colorado corporation
By: /s/ XXXXXXX XXXXXXXX
-------------------------------------
Its:
------------------------------------
X-0
00
XXXXXXX X-0
XXXXXXXXX ONE, TWO, THREE AND FOUR
LANDLORD CORE & SHELL WORK
SITE
All on and off site improvements generally including landscaping, irrigation,
sidewalks, paving, lighting, utilities, curb and gutter, monument signage and
striping at Landlord's discretion.
BUILDING
o Foundations
o Underground utilities (wet and dry) to a single termination point for
each utility
o Building structure including concrete slabs
o Exterior walls and building "skin" including windows, exterior doors,
insulation, and finish material
Note: Tenant side of exterior walls will be completed (drywalled,
taped, sanded and painted) as part of the tenant finish
allowance during tenant finish.
o Roof insulation and roofing
o Mechanical equipment screen sufficient in size to accommodate shell
mechanical equipment
o Common Areas including:
Toilet Core
Lobby
Elevators
Main Electrical Room
Fire Sprinkler Riser Room
Telecommunications Room
Stairways
Showers
Public Corridors
Note: Tenant side of common area spaces will be exposed studs or
structural walls. All finishes will be done under the tenant
finish allowance during tenant finish construction.
FIRE PROTECTION
Shell only sprinkler and alarm system more particularly described in this
section.
Note: Sprinkler heads will be installed pointing up into joist space at time of
shell construction. During tenant finish, under Tenant Finish Allowance,
heads will be "turned down" and lowered to finished ceiling height. Heads
will be relocated or additional heads added as required by code for the
tenant finish area again under the tenant finish allowance. Fire
protection shall be in compliance with NFPA 13, the owner's carrier, and
the jurisdictional authority.
FIRE ALARM SYSTEM
As required for shell and common area work only.
The fire alarm system will be a fully addressable system meeting the
requirements of the Uniform Fire Code, The Americans with Disabilities Act
(ADA), UI 1971, and the Westminster Fire Department. Manual pull stations will
be located to meet National Fire Protection Association (NFPA) requirements and
horn/strobe units will be located to provide complete coverage in terms of both
the visual and audible components.
D-1-1
52
Detection may be required for special functions in selected areas and in
non-rated corridor-type open office areas. However, full smoke detection for the
building is not required by the 1991 National Fire Code or by the Westminster
Fire Department. Review of the tenant exiting paths will be required by the
Westminster Fire Xxxxxxxx.
The fire alarm system will be installed for core and shell common areas only.
All fire alarm systems required for tenant finish will be installed during
tenant finish under that allowance.
MECHANICAL SYSTEM
AIR DISTRIBUTION
The buildings will be served by rooftop packaged heating and cooling units sized
to meet the demand loads. The units will have DX refrigeration, a gas-fired
heating section, and full economizer and VAV controls. The roof curbs will be
mounted on an 8" concrete slab for sound attenuation. The units will be located
near the toilet core and arranged so that certain units will serve the second
floor and the other units the first floor.
The system will be ducted to fan powered parallel flow type VAV boxes with
electric heating coils serving perimeter zones and cooling only pinch down boxes
serving interior spaces. On the average there will be one zone box for every
1,600 SF. Typically, each exposure will have two fan-powered boxes at an average
of 1,200 SF each, and the interior spaces will have a box for every 2,000 SF.
All zone boxes will be ducted to square ceiling diffusers during tenant finish
and all electrical and control wiring for the boxes will be done under the
tenant finish allowance.
HEATING
The gas-fired heating section inside each rooftop unit will be used for morning
warm-up and overnight heating.
Each perimeter fan terminal will be provided with an electric heating coil to
allow for zone heating when required. (Connected to power source under tenant
finish.)
CONTROLS
The proposed control system shall be Direct Digital Controls (DDC) and shall
communicate with the rooftop units, fan terminal units and VAV boxes. The
control system will provide the capability to monitor each VAV box and provide
for off-hour HVAC.
ELECTRICAL SYSTEMS DESIGN CRITERIA
POWER
The basis for the design of the electrical distribution system is a load density
of 30 xxxxx/SF with the following breakdown:
Mechanical Systems (including elevators) 18.0 W/SF
Lighting 2.0 W/SF
General Purpose Power 8.0 W/SF
Spare 2.0 W/SF
---------
TOTAL 30.0 W/SF
D-l-2
53
ELECTRICAL SYSTEM
POWER DISTRIBUTION
The distribution system for this building will initiate from a main distribution
switchboard located in the main electrical room. The service will be fed from an
exterior pad mounted Public Service Company transformer.
The major mechanical equipment will be fed from the main switchboard located in
the main electrical room.
The tenant will need to provide and install an energy demand meter to monitor
their energy usage. The tenant shall also install a data connection between the
demand meter and the building management system.
All fan powered boxes shall be connected to the tenant panel by the tenant
during the tenant finish phase.
The tenant will be responsible for all electrical distribution equipment
starting at the 400 amp, 480 volt switch in the main electrical room.
COMMUNICATION RACEWAYS
Incoming communications cable from U S West and conduit capacity for other
providers into the main telecom room on the first floor will be pulled in 4"
conduits run from a telephone pedestal located on the perimeter of the site. In
addition to the incoming conduits, two, 4" conduits shall be installed between
each building. Additional conduit required to cross a tenant space to link the
telecommunications room to a future unfinished space will be the responsibility
of the landlord. The tenant shall be responsible for all telecommunication work
from the main telephone room on. Sleeves will be provided in the second floor
over the telephone room for the tenants use.
CARD ACCESS SYSTEM
A card access system will be provided at the main entry and each of two
stairwell entrances on the north side.
PLUMBING SYSTEM
WASTE AND VENT SYSTEM
A 6" sanitary sewer service shall be provided to the building. Conventional
waste and vent system with stubouts for future connection in core area. Tenant
stacks are also provided at two locations per floor. The pipe material shall be
cast iron hub and spigot below floor and cast iron no hub above floor. Future
connection sizes shall be 4" for waste and 3" for vent.
DOMESTIC WATER
A 1 1/2" water meter with 2" service into the building shall be provided. A
reduced pressure backflow preventer and PRV station, if required, shall be
provided at water entrance into the building. Domestic water shall be routed to
all fixtures. Two tenant risers with a 1" stubout provided at each riser on
every floor located with the tenant stacks. Additionally, a 1" stubout shall be
provided at the toilet core.
DOMESTIC HOT WATER
A gas fired hot water heater sized as necessary shall be provided to serve the
needs of the toilet core and showers.
D-1-3
54
PLUMBING FIXTURES
Fixtures shall be provided at core area of building. Water closets shall be of
the pressure assist flush tank, floor set type with elongated bowl. Fixtures
shall be ADA accessible as required.
SHOWER FACILITIES
The building will contain public shower stalls with dressing areas divided
between men and women, located near or adjacent to the toilet rooms.
STORM
Roof drainage by leader heads and downspouts with overflow scuppers.
NATURAL GAS
Natural gas shall be extended from the gas meter to the rooftop units. Gas pipe
shall be black steel (threaded) for piping up to 2" in size. Piping 2 1/2" and
larger shall be butt weld black steel. All piping exposed to outdoor conditions
shall be painted.
WINDOW COVERINGS
Landlord shall provide Levolor mini blinds in all windows at Landlord's cost.
D-l-4
55
EXHIBIT E
RULES AND REGULATIONS
Landlord and Tenant agree that the following Rules and Regulations
shall be and hereby are made a part of this Lease, and Tenant agrees that
Tenant's employees and agents, or any others permitted by Tenant to occupy or
enter the Premises, will at all times abide by said Rules and Regulations:
1. The sidewalks, entries, passages, corridors, stairways and elevators
of the Building shall not be obstructed by Tenant, or Tenant's agents or
employees, or used for any purpose other than ingress to and egress from the
Premises.
2. Furniture, equipment or supplies will be moved in or out of the
Building only upon the elevator designated by Landlord and then only during such
hours and in such manner as may be prescribed by Landlord and upon no less than
forty-eight (48) hours prior notice to Landlord. Landlord shall have the right
to approve or disapprove the movers or moving company employed by Tenant. Tenant
shall cause its movers to use only the loading facilities and elevator
designated by Landlord. In the event Tenant's movers damage the elevator or any
part of the Building, Tenant shall forthwith pay to Landlord the amount required
to repair said damage. Tenant shall insure that deliveries of materials and
supplies to the Premises are made through such entrances, elevators and
corridors and at such times as may from time to time be designated by Landlord,
and shall promptly pay or cause to be paid to Landlord the cost of repairing any
damage in or to the Building or Building Complex caused by any person making
such deliveries.
3. No safe or articles, the weight of which may in the opinion of
Landlord constitute a hazard or damage to the Building or Building's equipment,
shall be moved into the Premises.
4. Safes and other equipment, the weight of which is not excessive,
shall be moved into, from and about the Building only during such hours and in
such manner as shall be prescribed by Landlord; and Landlord shall have the
right to designate the location of such articles in the Premises.
5. No sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the inside or outside of the Building unless of such
color, size and style and in such place upon or in the Building, as shall be
first designated and approved in writing by Landlord, provided, however, there
shall be no obligation or duty on Landlord to allow any sign, advertisement or
notice to be inscribed, painted or affixed on any part of the inside or outside
of the Building except as otherwise provided in the Lease. No furniture shall be
placed in front of the Building or in any lobby or corridor, without the prior
written discretionary consent of Landlord. Landlord shall have the right to
remove all non-permitted signs and furniture, without notice to Tenant, and at
the expense of Tenant.
6. Tenant shall not do or permit anything to be done in the Premises,
or bring or keep anything therein which would in any way increase the rate of
fire insurance on the Building or on property kept therein, constitute a
nuisance or waste, or obstruct or interfere with the rights of other tenants, or
in any way injure or annoy them, or conflict with any of the rules or ordinances
of the Fire Department or of the Department of Health of the County where the
Building is located.
7. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning or taking care of the Premises, without
the prior written consent of Landlord. Landlord shall be in no way responsible
to Tenant for any loss of property from the Premises, however occurring, or for
any damage done to Tenant's furniture or equipment by the janitor or any
of janitor's staff, or by any other person or persons whomsoever; provided,
however, that the janitorial staff is bonded. The janitor of the Building may at
all times keep a pass key, and other agents of Landlord shall at all times be
allowed admittance to the Premises.
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0. Water closets and other water fixtures shall not be used for any
purpose other than that for which the same are intended, and any damage
resulting to the same from misuse on the part of Tenant, Tenant's agents or
employees, shall be paid for by Tenant. No person shall waste water by tying
back or wedging the faucets or in any other manner.
9. No animals (except for those assisting disabled people) shall be
allowed in the offices, halls, corridors and elevators in the Building. No
person shall disturb the occupants of this or adjoining buildings or premises by
the use of any radio, sound equipment or musical instrument or by the making of
loud or improper noises.
10. No vehicles, including bicycles, shall be permitted in the offices,
halls, corridors, and elevators in the Building nor shall any vehicles be
permitted to obstruct the sidewalks or entrances of the Building.
11. Tenant shall not allow anything to be placed on the outside of the
Building, nor allow anything to be thrown by Tenant, Tenant's agents or
employees, out of the windows or doors, or down the corridors, elevator shafts,
or ventilating ducts or shafts of the Building. Tenant, except in case of fire
or other emergency, shall not open any outside window.
12. No additional lock or locks shall be placed by Tenant on any door
in the Building unless written consent of Landlord shall first have been
obtained. If, with Landlord's consent, Tenant installs lock(s) incompatible with
the Building Master Locking System: (a) Landlord, without abatement of rent,
shall be relieved of any obligation under this Lease to provide any service to
the affected areas which requires access thereto; (b) Tenant shall indemnify
Landlord against any expenses as a result of forced entry thereto, which may be
required in an emergency; and (c) Tenant shall at the end of the term and at
Landlord's request remove such lock(s) at Tenant's expense. A reasonable number
of keys to the toilet rooms, if locked by Landlord, will be furnished by
Landlord, and neither Tenant, Tenant's agents or employees shall have any
duplicate keys made. At the termination of this tenancy, Tenant shall promptly
return to Landlord all keys to offices, toilet rooms or vaults. Landlord may
from time to time install and change locking mechanisms on entrances to the
Building, Building Complex and the Premises, and shall provide Tenant with two
(2) sets of keys for each lockset at no additional charge. If now or at any
future time the locking mechanisms of the Building Complex or Premises utilize
"card keys," Landlord shall provide Tenant with one (1) card key per 1,000
square feet in the Premises without change. If Tenant requires additional card
keys, Tenant shall deposit with Landlord a reasonable sum not to exceed $25.00
for each additional card key issued to Tenant and Tenant's employees, as a
deposit to be refunded to Tenant upon return of the applicable card key(s).
13. No window shades, blinds, screens, draperies or other window
coverings will be attached or detached by Tenant without Landlord's prior
written consent. Tenant agrees to abide by Landlord's rules with respect to
maintaining uniform curtains, draperies and/or linings at all windows and
hallways.
14. No awnings shall be placed over any window.
15. If Tenant desires telegraphic, telephonic or other electric
connections, Landlord or Landlord's agents will direct the electricians as to
where and how the wires may be introduced and without such directions, no boring
or cutting for wires will be permitted. Any such installation and connection
shall be made at Tenant's expense.
16. Tenant shall not install or operate any steam or gas engine or
boiler, or carry on any mechanical operation in the Premises. The use of oil,
gas or inflammable liquids for heating, lighting or any other purpose is
expressly prohibited. Explosives or other articles deemed extra hazardous shall
not be brought into the Building Complex.
17. Any painting or decorating as may be agreed to be done by and at
the expense of Landlord shall be done during regular weekday working hours.
Should Tenant desire such work on Saturdays, Sundays, holidays or outside of
regular working hours, Tenant shall pay for the extra cost thereof. Tenant shall
carry out Tenant's repair, maintenance, alterations and improvements in the
Premises only during times agreed to in advance by Landlord and in a manner
which will not interfere with the rights of the other tenants in the Building or
Building Complex.
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00. Except as permitted by Landlord and except for normal office
decorating, Tenant shall not xxxx upon, paint signs upon, cut, drill into, drive
nails or screws into, or in any way deface the walls, ceilings, partitions or
floors of the Premises or of the Building, and any defacement, damage or injury
caused by Tenant, Tenant's agents or employees, shall be paid for by Tenant.
19. Landlord shall at all times have the right, by Landlord's
representatives or agents, to enter the Premises and show the same to persons
wishing to lease them, and may, at any time within sixty (60) days preceding the
termination of Tenant's Lease term, place upon the doors and windows of the
Premises a "For Rent" sign, which notice shall not be removed by Tenant.
20. Tenant shall not obstruct or interfere with the rights of other
tenants of the Building, or of persons having business in the Building, or in
any way injure or annoy such tenants or persons.
21. Tenant shall not commit any act or permit anything in or about the
Building which shall or might subject Landlord to any liability or
responsibility for injury to any person or property by reason of any business or
operation being carried on in or about the Building or for any other reason.
22. Tenant shall not use the Building for lodging, sleeping, cooking
(except microwave use), or for any immoral or illegal purpose or for any purpose
that will damage the Building, or the reputation thereof, or for any purposes
other than those specified in the Lease.
23. Canvassing, soliciting, and peddling in the Building are
prohibited, and Tenant shall cooperate to prevent such activities.
24. Except as otherwise expressly permitted in the Lease, Tenant shall
not conduct mechanical or manufacturing operations, xxxx or prepare food, except
designated kitchen areas, or place or use any inflammable combustible explosive,
or hazardous fluid, chemical, device, substance or material in or about the
Building. Tenant shall comply with all statutes, ordinances, rules, orders,
regulations and requirements imposed by governmental or quasi-governmental
authorities in connection with fire and public safety and fire prevention and
shall not commit any act or permit any object to be brought or kept in the
Building, which shall result in a change of the rating of the Building by the
Insurance Services Officer or any similar person or entity.
25. Tenant shall not use the building for manufacturing or for the
storage of goods, wares or merchandise, except as such storage may be
incidental to the use of the Premises for general office purposes and except in
such portions of the Premises as may be specifically designated by Landlord for
such storage. Tenant shall not conduct in or about the Building any auction,
public or private, without the prior written approval of Landlord.
26. Tenant shall not use in the Building any machines, other than the
standard office machines such as computers, typewriters, calculators, copying
machines and similar machines, without the express prior written consent of
Landlord. Tenant shall not cause improper noises, vibrations, or odors within
the Building.
27. Tenant shall not deposit any trash, refuse, cigarettes, or other
substances of any kind within or out of the Building except in the refuse
containers provided therefore. Tenant shall not introduce into the Building any
substance which might add an undue burden to the cleaning or maintenance of the
Premises or the Building. Tenant shall exercise its best efforts to keep the
sidewalks, entrances, passages, courts, lobby areas, parking areas, elevators,
escalators, stairways, vestibules, public corridors and halls in and about the
Building clean and free from rubbish.
28. Tenant shall use the Common Areas only as a means of ingress and
egress, and Tenant shall permit no loitering by any persons upon Common Areas or
elsewhere within the Building. The Common Areas and roof of the Building are not
for the use of the general public, and Landlord shall, in all cases, retain the
right to control or prevent access thereto by all persons whose presence in the
judgment of the Landlord, shall be prejudicial to the safety, character,
reputation or interests of the Building and its tenants. Tenant shall not enter
the mechanical rooms,
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air conditioning rooms, electrical closets, or similar areas or go upon the roof
of the Building without the express prior written consent of Landlord.
29. Landlord its agents or representatives reserve the right to exclude
or expel from the Building any person, who, in the judgment of Landlord, is
intoxicated or under the influence of liquor or drugs or who shall in any manner
act in violation of the rules and regulations of the Building.
30. Tenant shall not use the washrooms, restrooms and plumbing fixtures
of the Building, and appurtenances thereto, for any other purpose then the
purposes for which they were constructed, and Tenant shall not deposit any
sweepings, rubbish, rags or other improper substances therein. Tenant shall not
waste water by interfering or tampering with the faucets or otherwise. If Tenant
or Tenant's employees, contractors, jobbers, agents, licensees, invitees, guests
or visitors cause any damage to such washrooms, restrooms, plumbing fixtures or
appurtenances, such damage shall be repaired at Tenant's expense and Landlord
shall not be responsible therefor.
31. The sashes, sash doors, skylights, windows and doors that reflect
or admit light or air into the common areas of the Building shall not be covered
or obstructed by Tenant, through placement of objects upon windowsills or
otherwise. Tenant shall cooperate with Landlord in obtaining maximum
effectiveness of the cooling system of the Building by closing drapes and other
window coverings when the sun's rays fall upon the windows of the Premises.
Tenant shall not obstruct, alter or in any way impair the efficient operation of
Landlord's heating, ventilating, air conditioning, electrical, fire, safety, or
lighting systems, nor shall Tenant tamper with or change the setting of any
thermostat or temperature control valves in the Building.
32. Subject to applicable fire or other safety regulations, all doors
opening into Common Area and all doors upon the perimeter of the Premises shall
be kept closed and, during nonbusiness hours, locked, except when in use for
ingress or egress. If Tenant uses the Premises after regular business hours or
on nonbusiness days, Tenant shall lock any entrance doors to the Building or to
the Premises used by Tenant immediately after using such doors.
33. Tenant shall not permit its employees or agents to smoke in any
lobby, hallway or restroom within the Building Complex or in any other areas of
the Building Complex either (i) posted as a non-smoking area or (ii) areas
prohibited by any authorized governmental agencies.
34. Tenant agrees that Landlord may reasonably amend, modify, delete or
add new and additional rules and regulations to the use and care of the Premises
and the Building, provided such changes shall not unreasonably interfere with
Tenant's use of the Premises for office purposes. Tenant agrees to comply with
all such rules and regulations upon notice to Tenant from Landlord thereof. In
the event of any breach of any rules and regulations herein set forth or any
reasonable amendments, modifications or additions thereto Landlord shall have
all remedies in this Lease provided for in the event of default by Tenant.
35. All references in these Rules and Regulations to "Tenant" shall be
deemed to include the employees, agents, invitees and licensees of Tenant and
others permitted by Tenant to use or occupy the Premises.
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XXXXXXX X
XXXXXXXX OF LEASE
Intentionally Deleted
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FIRST AMENDMENT
This First Amendment ("Amendment") is attached to and forms an integral part to
the Lease by and between Westmoor Business Park Ltd., LLLP, a Colorado limited
liability limited partnership and ChannelPoint, Inc., a Colorado corporation
("Original Lease") for the Premises known as Suite 210, 10155 Westmoor Drive,
Westminster, Colorado ("Original Premises") and shall supercede the terms and
conditions of the Original Lease and where inconsistent govern the rights and
obligations of the parties. All definitions used herein shall, except as set
forth herein, have the meanings set forth in the Original Lease. This Amendment
together with the Original Lease is hereinafter referred to as the "Lease".
1. Expansion. Landlord hereby leases to Tenant and Tenant hereby rents from
Landlord an additional 15,078 rentable square feet located adjacent to the
Original Premises and more commonly known as Suite 200, as identified on
Exhibit A attached hereto and incorporated herein by this reference
("Additional Space"). The Additional Space, together with the Original
Premises, aggregate 24,118, and is hereinafter referred to collectively as
the "Premises." The Additional Space is leased by Tenant on the following
terms and conditions:
A. The Additional Space shall be completed in accordance with the terms
of the Work Letter attached as Exhibit D to the Original Lease, except
that the Submission Date with respect to Tenant's delivery of space
plans for the Additional Space shall be October 1, 1999 and the
Premises shall be Ready for Occupancy on or before January 1, 2000.
Landlord shall give Tenant a tenant finish allowance for the
Additional Space in the amount of $22.00 per rentable square foot of
the Additional Space (i.e. $331,716.00) ("Additional Space
Allowance"). The Additional Space Allowance shall be paid by Landlord
to Tenant on the same terms and conditions as provided in the Lease
with respect to payment by Landlord of the Tenant Finish Allowance.
B. On January 1, 2000, Tenant shall commence paying Base Rent and
Additional Rent on the Additional Space as hereinafter set forth.
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C. Simultaneously with execution of this Amendment, Tenant shall
increase the Security Deposit by depositing with Landlord an
additional Seventeen Thousand Three Hundred Thirty-Nine and
70/100 Dollars ($17,339.70) to be held by Landlord in accordance
with Section 4 of the Original Lease. The aggregate amount of the
Security Deposit to be held by Landlord shall be $28,108.70.
D. Tenant's Pro Rata Share is equal to 24.63%.
E. Except as modified by this Amendment, all other terms and
provisions of the Original Lease shall apply to Tenant's lease of
the Additional Space and all references in the Lease to the
"Premises" shall include the Additional Space.
2. Term. The Termination Date of this Lease shall be December 31, 2004,
unless sooner terminated pursuant to the terms of the Lease.
3. Base Rent. Commencing September 1, 1999 and continuing thereafter
during the Primary Lease Term, Tenant shall pay to Landlord Base Rent
as follows:
--------------------------------------------------------------------------------
Period Annual Base Rent Monthly Base Rent Rate/RSF
--------------------------------------------------------------------------------
September 1, 1999 - $124,752.00 $10,396.000 $13.80
December 31, 1999
--------------------------------------------------------------------------------
January 1, 2000 - $332,828.40 $27,735.70 $13.80
December 31, 2002
--------------------------------------------------------------------------------
January 1, 2003 - $362,734.72 $30,227.89 $15.04
December 31, 2004
--------------------------------------------------------------------------------
4. Renewal Options: Landlord grants to Tenant an option (the "Renewal
Option") to extend the term of the Lease for one (1) period of five
(5) years ("Option Term").
A. The Renewal Option shall apply to all space under the Lease at
the time the Renewal Notice is given to the Landlord and shall be
on the following terms and conditions.
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1. Written notice ("Renewal Notice") of exercise of the Renewal
Option shall be given to Landlord no later than nine (9)
months prior to the expiration of the Primary Lease Term. If
Tenant timely exercises a Renewal Option, the Lease shall be
deemed extended, and thereafter the parties shall execute an
amendment to the Lease setting forth the terms of the
extension.
2. Unless Landlord is timely notified by Tenant in accordance
with subparagraph (1) above, it shall be conclusively deemed
that Tenant does not desire to exercise the Renewal Option,
and the Lease shall expire in accordance with its terms, at
the end of the Primary Lease Term.
3. Tenant's right to exercise a Renewal Option shall be
conditioned upon Tenant not being in default under the Lease
at the time of the exercise of a Renewal Option or at the
time of commencement of the Option Term.
4. If Tenant exercises the Renewal Option, Landlord shall
provide Tenant with a tenant improvement allowance
comparable to that being provided by Landlord to other
tenants in the Westmoor Technology Park renewing their
leases for comparable space and for comparable terms.
5. The Renewal Option granted hereunder shall be upon the terms
and conditions contained in the Lease, except the rental to
be paid by Tenant for the Option Term shall be the then
current "Market Rate" for such period for similar quality
buildings in the competitive market but no less than the
Base Rent for the Premises on the Commencement Date of the
Primary Lease Term.
B. For the purposes of this paragraph 4, the term "Market Rate"
shall mean an amount per rentable square foot per annum for the
Premises which is representative of and comparable to the
consideration then paid (as of the inception of the Renewal Term)
for substantially equivalent lease transactions ("Comparable
Transactions") for new or renewal leases which are executed
within six
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(6) months of Tenant's exercise of the Renewal Option for
substantially equivalent office space in the Westmoor Technology
Park (the "Competitive Market") taking into account (i) the
amount of space in the Premises; (ii) tenant improvement
allowances, relocation allowances, free rent, landlord-paid
brokerage commissions and other concessions required to attract
new tenants or retain existing tenants; and (iii) the applicable
base year or expense stop, if any, and as adjusted to reflect the
applicable Base Year applicable to a Renewal Option, for
operating expenses and real estate taxes; provided, however, that
any non-arms length lease transactions entered into between
landlords and tenants in the Competitive Market are expressly
excluded from consideration in determining the Market Rent.
C. Failure to Renew. A failure to renew in the time and manner set
forth herein and within the time period provided herein shall
result in automatic termination of the Renewal Option.
D. Arbitration of Market Rate. Landlord shall provide written notice
of its good faith determination of the Market Rate within thirty
(30) days after Tenant provides its Renewal Notice to Landlord.
Tenant shall have thirty (30) days ("Tenant's Review Period")
after receipt of Landlord's notice of Landlord's determination of
the Market Rate within which to accept Landlord's determination.
In the event Tenant fails to accept in writing such rental
proposed by Landlord then such proposal shall be deemed rejected,
and Landlord and Tenant shall attempt to agree upon such Market
Rate, using their best good faith efforts. If Landlord and Tenant
fail to reach agreement within fifteen (15) days following
Tenant's Review Period ("Outside Agreement Date"), then each
party shall place in a separate envelope a final proposal as to
the Market Rate and such determination shall be submitted to
arbitration in accordance with subsections (1) through (5) below.
If Landlord fails to timely deliver the initial written
determination of the Market Rate which triggers Tenant's Review
Period, then Tenant may commence such negotiations by providing
the initial notice, in which event Landlord shall have thirty
(30) days ("Landlord's Review Period") after receipt of Tenant's
notice of the new rental within
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which to accept such rental. In the event Landlord fails to
accept in writing such rental proposed by Tenant, then such
proposal shall be deemed rejected, and Landlord and Tenant shall
attempt in good faith to agree upon such Market Rate, using their
best good faith efforts. If Landlord and Tenant fail to reach
agreement within fifteen (15) days following Landlord's Review
Period (which shall be in such event, the "Outside Agreement
Date" in lieu of the above definition of such date), then each
party shall place in a separate sealed envelope its final
proposal as to the Market Rate and such determination shall be
submitted to arbitration in accordance with subsections (1)
through (5) below.
1. Landlord and Tenant shall meet with each other within five
(5) business days of the Outside Agreement Date and exchange
the sealed envelopes and then open such envelopes in each
other's presence. If Landlord and Tenant do not mutually
agree upon the Market Rate within one (1) business day of
the exchange and opening of envelopes, then, within ten (10)
business days of the exchange and opening of envelopes,
Landlord and Tenant shall agree upon and jointly appoint a
single arbitrator who shall by profession be a competent MAT
appraiser with at least five (5) years experience in
properties in the vicinity of the Building Complex
unaffiliated with either Landlord or Tenant.
2. The arbitrator shall, within thirty (30) days of his or her
appointment, reach a decision as to whether the parties
shall use Landlord's or Tenant's submitted Market Rate, and
shall notify Landlord and Tenant of such determination.
3. If Landlord and Tenant fail to agree upon and appoint an
arbitrator, then the appointment of the arbitrator shall be
made by the Presiding Judge of the Jefferson County District
Court, or, if he or she refuses to act, by any judge having
jurisdiction over the parties.
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4. The cost of arbitration shall be paid by Landlord and Tenant
equally.
5. The Market Rate as determined by the arbitration provision
specified above shall be final.
6. In addition to the Base Rent to be paid during the Option
Term, Tenant shall continue to be liable to pay its Pro Rata
Share of Operating Expenses, as more particularly provided
in the Lease.
5. Right of First Refusal. In the event that Landlord (i) offers to lease
space in the Building to a prospective tenant; or (ii) receives an offer to
lease space in the Building from a prospective tenant which it is willing
to accept (the events in (i) and (ii) are each a "Refusal Event" and such
prospective tenant is hereafter referred to as the "Third Party" with
respect to all or a portion of the balance of the leasable space in the
east wing of the second floor of the Building, of which Landlord has
control, which is hereafter referred to as the "Refusal Space") Landlord
shall first offer to Tenant the right to lease the Refusal Space (the
"Refusal Right") on the following terms, conditions and procedures:
A. Upon the occurrence of a Refusal Event, Landlord shall tender to
Tenant notice (the "Refusal Notice") of the fact of the Refusal Event
and the "Economic Terms" pursuant to which Landlord would be willing
to lease the Refusal Space to the Third Party. The Economic Terms
shall only include (x) the rentable area of the Refusal Space; (y) the
Base Rent to be charged (z) the term and commencement date of the
prospective lease; (aa) the amount of tenant finish allowance to be
granted to the Third Party; (bb) the operating expense methodology;
(cc) renewal and expansion options and (dd) the location of the
Refusal Space.
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B. Tenant shall have a period of five (5) business days from the tender
of the Refusal Notice to give notice to Landlord ("Refusal Notice
Response") of its irrevocable commitment to lease the Refusal Space
upon the Economic Terms and upon the other terms and conditions of the
Lease except that the term of the lease for the Refusal Space shall be
the greater of (i) the time remaining in the Primary Lease Term or any
Option Term or (ii) the term set forth in the Refusal Notice. Tenant's
failure to timely tender the Refusal Notice Response shall irrevocably
be deemed a rejection of the Refusal Space.
C. If Tenant rejects or is deemed to have rejected the Refusal Space,
Landlord may (i) lease the Refusal Space to the Third Party on the
Economic Terms and any other non Economic Terms and (ii) Tenant shall
have no further right to lease the Refusal Space.
D. Tenant shall only be afforded the Refusal Right if Tenant is not in
default of its obligations under the Lease at the time of the Refusal
Event.
E. If Tenant timely exercises the Refusal Right, Tenant shall execute and
deliver to Landlord all documentation reasonably requested by
Landlord.
Tenant hereby waives its Refusal Right with respect to Suite 201 of the
Building, for which Landlord is currently negotiating a lease with ATP,
Inc. and PPD Development, Inc.
6. Consolidation Option: In the event Tenant notifies Landlord ("Consolidation
Notice") of its desire to consolidate its existing Premises with a minimum
of 100% of the Premises then being leased by Tenant of additional space
into a new location ("Consolidation Space") (i.e. the rentable square
footage of the Consolidation Space must be no less than double the rentable
square footage of the Premises then being leased by Tenant at the time the
Consolidation Notice is given), Landlord shall use reasonable efforts to
deliver said Consolidation Space either in Tenant's existing Building or
another building within Westmoor Technology Park as determined by Landlord
within twelve (12) months of the receipt of Tenant's Consolidation Notice.
The terms and conditions of the Lease with respect to the Consolidation
Space are as follows:
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A. A new Lease shall be entered into for the Consolidation Space
("Consolidation Space Lease"). The term of the Lease for the
Consolidation Space shall be not less than five (5) years.
B. If the Consolidation Space is within the Building and Consolidation
Notice is delivered within the first eighteen (18) months of the Lease
Commencement Date, the Base Rent for the Consolidation Space shall be
the rate then in effect for the existing Premises and the Tenant
Improvement Allowance shall be the same as for the Premises, provided
the consolidation occurs in space not previously leased.
C. If Consolidation Notice is received after the first eighteen (18)
months of the Primary Lease Term or the consolidation occurs at any
time in a building within Westmoor Technology Park other than the
Building, the Base Rental Rate shall be the then current market rate
being charged for the Consolidation Space as determined by Landlord,
and the Tenant Improvement Allowance shall be equivalent to that then
offered for space in the Westmoor Technology Park.
D. If the Consolidation Space under either (B) or (C) above has been
previously leased and occupied, the Tenant Improvement Allowance shall
be the then equivalent to that which is being changed for comparable
space being re-leased within Westmoor Technology Park as determined by
Landlord.
E. The Lease for the Premises shall be terminated effective as of the
Commencement Date of the Consolidation Space Lease, and Tenant shall
pay (i) the unamortized portion of all commissions paid under the
Lease at an annual interest rate of 10%, and (ii) a cancellation
charge based on the following formulas:
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o If the amount of additional space being leased as part of the
Consolidation Space is more than 25,000 net rentable square feet,
but less than 35,000 net rentable square feet, Tenant shall pay a
lease cancellation charge equal to the product of $7.50
multiplied by the net rentable square feet of the Premises at the
time of consolidation;
o If the amount of additional space being leased as part of the
Consolidation Space is greater than 35,000 net rentable square
feet, but less than 45,000 net rentable square feet, Tenant shall
pay a lease cancellation charge equal to the product of $5.00
multiplied by the net rentable square feet of the Premises at the
time of consolidation;
o If the amount of additional space being leased as part of the
Consolidation Space is greater than 45,000 net rentable square
feet, but less than 55,000 net rentable square feet, Tenant shall
pay a lease cancellation charge equal to the product of $2.50
multiplied by the net rentable square feet of the Premises at the
time of consolidation; or
o If the amount of additional space being leased as part of the
Consolidation Space is greater than 55,000 net rentable square
feet, no lease cancellation charge shall be payable.
F. Notwithstanding the foregoing, if additional space is available on the
same floor as Tenant's Premises, Landlord shall not be obligated to
consolidate Tenant's premises into another building in Westmoor
Technology Park. Tenant shall then lease additional space on the same
floor as the Premises, whether or not contiguous to the Premises,
under the terms and conditions described in this Section.
G. The Consolidation Notice shall be delivered no later than twelve (12)
months prior to the expiration of the Primary Lease Term.
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7. Termination Right: If Landlord is unable to provide Consolidation Space as
detailed in the preceding Section, Tenant shall have the right to terminate
the Lease effective 180 days after Landlord notifies Tenant that it is
unable to provide additional space in the Westmoor Technology Park, such
notification from Landlord shall be delivered to Tenant no more than thirty
(30) days after Landlord receives Tenant's notice of the exercise of the
Consolidation Option. Following notice from Landlord that additional space
in the Westmoor Technology Park is not available, Tenant shall have
forty-five (45) days to locate suitable space to which to relocate and
notify Landlord of Tenant's intent to terminate the Lease, in which case
Tenant shall be obligated for paying (i) the unamortized portion of the
Tenant Improvement Allowance and all commissions paid under the lease at an
annual interest rate of ten percent (10%), and (ii) three (3) months Base
Rent. During that forty-five (45) days, Tenant shall also have the option
to rescind its option to terminate the Lease, thus remaining in the
Premises for the remainder of the Lease Term.
8. Deletion of Lease Addendum. The Addendum attached to the Original Lease is
hereby deleted and is null and void and of no further force or effect
whatsoever.
LANDLORD:
WESTMOOR BUSINESS PARK LTD., LLP
a Colorado limited liability limited partnership
By: Westfield Development Company, Inc.,
a Colorado corporation, general partner
By: /s/ XXXXX X. XXXXXXXX
-------------------------------------
Its: Executive Vice President
-------------------------------------
TENANT:
CHANNELPOINT, INC., a Colorado corporation
By: /s/ XXXXXXX XXXXXXXX
-------------------------------------
Its: SVP Finance & CFO
-------------------------------------
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