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EXHIBIT 10.16
LEASE
BY AND BETWEEN
WESTMOOR BUSINESS PARK LTD, LLLP,
A COLORADO LIMITED LIABILITY LIMITED PARTNERSHIP
(LANDLORD)
AND
REQUISITE TECHNOLOGY, INC.
A DELAWARE 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: Requisite Technology, Inc., a Delaware Corporation
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3. Guarantor: N/A
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4. Premises: Suite Xx. 00000 Xxxxxxxx Xxxxx, Xxxxx 000
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5. Rentable Square Feet: 95,444
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6. Commencement Date: February 1, 2001
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7. Expiration Date: January 31, 2008
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8. Term: Seven (7) years
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9. Rent Commencement Date: February 1, 2001
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10. Initial Base Rent (Annually): $1,479,382.00
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11. Initial Base Rent (Monthly): $123,281.83
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12. Increase in Base Rent: See Section 3 - Rent
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13. Security Deposit: See Section 4 - Security Deposit
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14. Parking Spaces: 5 per 1,000 useable square feet
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15. Tenant's Pro Rata Share
of the Building: 46.70%
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16. Option on Additional Space: None
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17. Option to Renew: Two (2) five (5)-year periods
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18. Landlord Broker: Xxxxxxxxx Xxxx Company
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19. Tenant Broker: N/A
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20. Landlord Notices: Westmoor Business Park, Ltd., LLLP
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. XxXxxxxxxx
21. Tenant Notices: Requisite Technology, Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
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ADDENDUM
EXHIBITS:
A - Premises
B - Legal Description
C - Estoppel and Commencement Date Certificate
D - Work Letter Agreement
E - Rules and Regulations
F - Intentionally Deleted
G - License Agreement
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...................................................................11
14. Insurance...............................................................................................11
15. Damage or Destruction to Building.......................................................................13
16. Condemnation............................................................................................13
17. Assignment and Subletting...............................................................................14
18. Estoppel Certificate....................................................................................15
19. Default.................................................................................................16
20. Completion of Premises..................................................................................19
21. Removal of Tenant's Property............................................................................19
22. Holding Over............................................................................................20
23. Parking and Common Areas................................................................................20
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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...................................................................................................23
32. Substitution of Premises................................................................................23
33. Rights Reserved to Landlord.............................................................................23
34. Force Majeure Clause....................................................................................24
35. Signage.................................................................................................24
36. Attorneys' Fees.........................................................................................24
37. Hazardous Materials.....................................................................................24
38. Americans with Disabilities Act.........................................................................25
39. Bankruptcy or Insolvency................................................................................26
40. Miscellaneous...........................................................................................27
41. Satellite Dish..........................................................................................30
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BUILDING LEASE
THIS LEASE is made this 6th day of June, 2000, between WESTMOOR
BUSINESS PARK LTD., LLLP, a Colorado limited liability limited partnership,
("Landlord") and Requisite Technology, Inc., a Delaware 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 95,444 square feet of space (Rentable Area) on the first and
second floor(s), suite(s) 200 of the building known as Building Seven
("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-1 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 eighty-four (84) months
(the "Primary Lease Term") commencing at 12:01 a.m. on February 1, 2001 (the
"Commencement Date") and terminating at 12:00 midnight on January 31, 2008 (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 eighty-four (84) 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 $1,479,382.00 $123,281.83 $15.50
37 - 72 $1,613,003.60 $134,416.97 $16.90
73 - 84 $1,758,078.48 $146,506.54 $18.42
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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.
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 Two Hundred Fifty Thousand and no/100 Dollars ($250,000.00)
("Initial Deposit"), 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. In addition to the Initial Deposit, Tenant shall also deliver to
Landlord an additional deposit in the form of cash or one or more irrevocable
letters of credit, in form and substance acceptable to Landlord, issued by one
or more banks acceptable to Landlord (collectively "Letter of Credit"), in the
amount of One Million and no/100 Dollars ($1,000,000.00) ("Additional Deposit")
payable on or before October 1, 2000. In the event the Letter of Credit is for a
term less than the Lease term, then in that event, Tenant shall deliver to
Landlord an extension or replacement Letter of Credit no less than thirty days
prior to the expiration date of the Letter of Credit. If Landlord does not
receive an extension or replacement of the Letter of Credit on or before thirty
days prior to the expiration date of such Letter of Credit, Landlord shall be
entitled to draw down the full amount of the Letter of Credit. If, pursuant to
the Letter of Credit, Landlord is notified prior to the expiration date thereof,
that the Letter of Credit will not be renewed, Tenant shall, no less than twenty
days prior to such expiration date, deliver to Landlord the amount of the Letter
of Credit, in cash or substitute Letter of Credit acceptable to Landlord
("Substitute Additional Deposit"). If Tenant fails to deliver such Substitute
Additional Deposit within said period, then Landlord shall be entitled to draw
down the full amount the Letter of Credit. In the event that the bank refuses to
honor the Letter of Credit, or in the event that the Substitute Additional
Deposit is not delivered to Landlord, Tenant shall be in immediate default under
this Lease, subject to no notice or cure periods. The Initial Deposit, together
with any portion of the Additional Deposit that is in the form of cash, shall be
deposited in an interest bearing account with the interest paid to the party
(Landlord or Tenant) having the rights to such deposit pursuant to the terms 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 actual damages incurred by the
Landlord by reason of Tenant's default.
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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. Provided that Tenant is not in default under this Lease after expiration
of any applicable notice and cure period, and further provided that Tenant has
maintained profitability for two (2) consecutive calendar quarters, within ten
(10) days of delivery of written notice of such profitability and evidence
thereof reasonably satisfactory to Landlord ("Profitability Notice"), a portion
of the Additional Deposit in the amount of $200,000.00 shall be refunded to
Tenant. Thereafter, provided that Tenant is not then in default after expiration
of any applicable notice and cure period and Tenant continues to maintain
profitability, after each successive two (2) calendar quarter period and
delivery of a Profitability Notice to Landlord, $200,00.00 of the Additional
Deposit shall be refunded to Tenant until such time as Landlord is holding only
the amount of the Initial Deposit. The Initial Deposit of $250,000.00 shall
remain with the Landlord throughout the Lease Term. 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 with applicable
interest, within fifteen (15) days after the termination of this Lease upon full
performance of this Lease by Tenant and vacation of the Premises by Tenant.
Landlord shall hold the Initial Deposit and the cash portion of the Additional
Deposit in an account separate and apart from the other accounts of Landlord and
Landlord shall not commingle said deposit with other funds of Landlord. Provided
that Tenant is not then in default, Landlord shall 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., 95,444 square
feet) and the denominator of which is the Building Rentable Area (i.e., 204,387
square feet), and is equal to 46.70%. 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;
(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");
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(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) Insurance premiums, including fire and
all-risk coverage, together with loss of rent endorsement; public liability
insurance; and any other insurance reasonably carried by Landlord on the
Building Complex or any component parts thereof;
(ix) Labor costs, including wages and other payments,
costs to Landlord of worker's compensation and disability insurance, payroll
taxes, and welfare fringe benefits;
(x) Professional building management fees and
salaries of on site employees hired by Landlord or its property manager (not to
exceed the commercially reasonable rates being charged for similar properties);
(xi) 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;
(xii) 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 which take effect after the completion of the initial
improvements (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"); 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
applying generally accepted accounting principles), 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
(xiii) "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,
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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.
(xiv) 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; 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 for in paragraph 2 of the
Lease Addendum.
(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 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.
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(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.
(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 ninety (90) 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 ninety (90) 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 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
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paid by Landlord. In the event the amount of error by Landlord is determined to
be less than ten percent (10%), 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.
(g) Notwithstanding anything set forth in this Lease to the
contrary, in the event Tenant directly contracts for services which are included
in Operating Expenses, and directly pays to any such contractor the amount for
such services, Tenant's Pro Rata Share of Operating Expenses shall be reduced by
the amount actually paid directly by Tenant to the applicable service provider.
In order to receive such credit, Tenant must deliver to Landlord evidence of
such payment reasonably satisfactory to Landlord.
6 Character of Occupancy:
(a) The Premises are to be used for general offices 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. Notwithstanding the foregoing, Tenant shall not be
required to make any capital improvements to the Premises in order to so comply.
Any such improvements shall be performed by Landlord, and the costs shall be
passed through as Operating Expenses and amortized as provided in Section
5(a)(3)A.(xiii).
(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 where the Premises are located
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 reasonable 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 reasonable judgment of Landlord, (viii) create waste in, on or
around the Premises, Building, or Building Complex, or (ix) 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
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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 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 reasonable 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 reasonable judgment of Landlord, be reasonably required for the comfortable
use and occupancy of the Premises provided that Tenant complies with the
reasonable 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; during ordinary business
hours 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 and internal communication systems (which may include piped-in
music). To the extent that electric current is utilized, Tenant's rent shall be
increased from time to time by Landlord in such amounts to cover the actual cost
of providing electric current to the Premises Tenant shall install as part of
the initial tenant improvements, a check meter to determine the amount of
electric current which Tenant is utilizing. The cost of such usage, and check
meter, including but not limited to 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 reasonably 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 reasonably 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
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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 cause or permit an abatement, reduction or setoff of rent, or operate
to release Tenant from any of Tenant's obligations hereunder.
(e) Whenever heat generating machines or equipment are used by
Tenant in the Premises which adversely 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 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. For purposes hereof, Tenants
use of normal and customary office equipment in reasonable amounts for
reasonable times shall be deemed to not adversely affect the temperature.
(f) 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) hour periods, 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. Not withstanding the above, Tenant shall not be
required to pay the $38.00 per hour charge during the first two (2) months of
the Lease term.
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 negligence 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
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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 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 negligence
of Tenant), walls and floors, all doors, interior glass partitions or glass
surfaces (not exterior windows) and pipes, which provide service solely for the
Tenant's Premises, 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 ten percent (10%) of such amounts as an overhead/administrative charge
shall be due and payable 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 (except as provided for in paragraph 6 of the Lease Addendum), which
consent shall not be unreasonably withheld provided the alterations are not
structural or mechanical 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 reasonable 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, which consent shall not be unreasonably withheld.
(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
approved building standard improvements), 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 and damage due to
casualty or condemnation 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 and damage due to casualty or
condemnation excepted. All movable partitions, machines and equipment which are
installed in the Premises by or for
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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 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 upon 24 hour 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 or to the
Building as Landlord may deem necessary or desirable, and during the last six
(6) months of the term to show the same to prospective tenants of the Premises.
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, provided such entry does not unreasonably interfere with Tenant's
use of the Premises.
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
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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, 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,
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.
(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 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
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 unless due to Landlord's negligence or willful misconduct.
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 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),
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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 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
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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 one hundred twenty (120) 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 Tenant , (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 thirty (30)
days after such casualty if it estimates that it will be unable to repair and
restore the Premises within said one hundred twenty (120) 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 one hundred twenty (120) day period,
then Tenant may, by written notice 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 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 180 days) that Landlord, within thirty
(30) 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 thirty (30) 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
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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 and Operating Expenses 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 hereinafter be referred to as "Transfer") without
Landlord's prior written consent which consent 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, upon monetary default by Tenant hereunder, 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 space so sublet or assigned;
(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 (beyond any applicable cure
period) of any term or condition of this Lease at the time it requests
Landlord's consent.
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(b) Notwithstanding the provisions of subsection 17 (a)(2) above to
the contrary, 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 from time to time, to collect and
receive fifty percent (50%) of the excess of rent due to Tenant (after
recoupment by Tenant of its reasonable costs of such subletting or assignment)
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 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 with whom
Landlord has engaged in written negotiations within the prior three (3) months
without Landlord's prior written consent which may be withheld for any reason or
no reason. A "written negotiation" shall include a proposal submitted by
Landlord to a prospective Tenant.
18. Estoppel Certificate: Both parties further agrees at any time and
from time to time on or before five (5) ten (10) days after written request, to
execute, acknowledge and deliver to the other 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
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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 (or if such claim
exists, specifying the nature thereof), 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 or any sublessee. 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 the date
when due any installment of Base Rent, Additional Rent or any other amounts
payable hereunder. Prior to Tenant being declared in default hereunder, Landlord
agrees to provide written notice to Tenant and a five (5) day cure period one
(1) time per each calendar year. Any subsequent default within said calendar
year may be declared without prior written notice to Tenant;
(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 forty-five (45) 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 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 sixty (60) 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 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
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not be in default if it commences cure within said fifteen (15) days and
diligently pursues the same to completion; and
(8) Tenant shall fail to obtain a release of any mechanic's
lien, as required herein.
(9) 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.
(10) Tenant shall fail to pay when due the Termination
Payment, as defined in that certain Termination of Lease Agreement between
Landlord and Tenant, dated June 6th, 2000.
(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. 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)(1) 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.
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(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 unless caused by the negligence of Landlord.
(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 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
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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.
(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 and this Lease,
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 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). A certificate of occupancy (temporary or permanent) as issued by an
appropriate government authority, and a 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.
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(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) square feet of the
Premises on a useable basis, 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, change the level or grade of parking,
provided such changes do not reduce Tenant's ratio as set forth above. 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
reasonable 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 the same condition received on the Commencement Date, 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
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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: Except for latent defects, 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),
within ten (10) 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 use good faith efforts to obtain 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
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
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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: Requisite Technology, Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn: Chief Financial Officer
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 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
Landlord Broker in the negotiation of this Lease. Landlord shall make payment of
the brokerage fee due to the Landlord Broker pursuant to and in accordance
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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.
(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.
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32. 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.
Landlord's right pursuant to this Paragraph 33 shall be subject to the
condition that exercise of any of such rights shall not unreasonably interfere
with Tenant's use of the Premises.
33. Force Majeure Clause: Wherever there is provided in this Lease a
time limitation for performance by Tenant or Landlord of any non monetary
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.
34. 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, with the names of Tenant, not to exceed four (4) names, 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
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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.
(c) Tenant shall be permitted to locate, at Tenant's sole cost and
expense, it's name on the Building Monument Sign located adjacent to Westmoor
Drive, provided Tenant conforms to the sign criteria for said Monument Sign.
35. 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.
36. 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 unless 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 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
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presently in effect or that may be promulgated in the future, as such
statutes, regulations and ordinances may be amended from time to time.
37. Americans with Disabilities Act.
(a) Landlord shall, subject to reimbursement as part of the
Building's Operating Expenses and amortized as provided in Section
5(a)(3)A.(xiii), 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").
(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.
38. 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.
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39. Miscellaneous:
(a) The rules and regulations attached hereto as Exhibit E, as well
as such reasonable 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 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,
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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 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, unless
due to Landlord's negligence, 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 reasonably acceptable to Landlord, as a condition precedent to use of any
such health facility by Tenant and its employees.
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(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.
(t) In the event a guaranty is executed in connection with this
Lease, said guaranty shall be deemed a part of this Lease and attached hereto as
Exhibit F and incorporated herein by this reference.
(u) 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.
(v) Tenant may not record this Lease and any such recordation shall
at the option of Landlord, be a default of Tenant hereunder.
31
37
40. Satellite Dish. Tenant shall be entitled to install at Tenant's
expense a satellite dish on the roof of the Building in a location approved by
Landlord in accordance with the terms of that certain License Agreement attached
hereto as Exhibit G and incorporated herein by this reference ("License
Agreement").
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 X. XXXXXXXX
----------------------------------
Its: Executive Vice President
---------------------------------
TENANT:
REQUISITE TECHNOLOGY, INC.,
a Delaware Corporation
By: /s/ X. X. XXXXXXXXXX
---------------------------------
Name: X. X. Xxxxxxxxxx
-------------------------------
Title: Chief Finance Officer
------------------------------
STATE OF COLORADO )
) SS
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 7th day of
June, 2000, by Xxxxx X. Xxxxxxxx as Executive Vice President 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
32
38
STATE OF Colorado )
------------------------ ) SS
COUNTY OF Jefferson )
-----------------------
The foregoing instrument was acknowledged before me this 6th day of
June, 2000, by X. X. Xxxxxxxxxx as Chief Financial Officer of Requisite
Technology Inc.
Witness my hand and official seal.
My commission expires: 2/2/03 .
---------------------------------
/s/ XXXXXXX XXXXXX
-----------------------------------------
Notary Public
33
39
EXHIBIT A
DESCRIPTION OF PREMISES
[FLOORPLAN]
SUITE USEABLE RENTABLE FLOOR BLDG. LEASE TENANT
NUMBER AREA AREA R/U R/U AREA NAME
------ ------- -------- ------ ------ ----- ------
-- 44,186 46,830 1.0294 1.0296 AVAILABLE FOR LEASE
100 3,027 Westfield Property Services
105 43,793 Requisite Technology
------ ------- -------- ------ ------
TOTAL 44,186 46,830 1.0294 1.0296
--------------------------------------------------------------------------------------------------------------------------
[TENANT DEMISED AREAS Sheet DA1
PLANNING ==========================================
SERVICES of 4
INCORPORATED WESTMOOR TECHNOLOGY PARK VII
LOGO] XXXXXX WESTMOOR DRIVE Drawn by: 60
WESTMINSTER COLORADO Date: MAR00
LEVEL ONE (1) Job Number: 348000
--------------------------------------------------------------------------------------------------------------------------
SPACE PLANNING TENANT DEVELOPMENT INTERIOR DESIGN 0000 XXXXXXXX, XXXXX 000, XXXXXX, XXXXXXXX 00000 (303) 881-4800
--------------------------------------------------------------------------------------------------------------------------
[FLOORPLAN]
SUITE USEABLE RENTABLE FLOOR BLDG. LEASE TENANT
NUMBER AREA AREA R/U R/U AREA NAME
------ ------- -------- ------ ------ ----- ------
-- 47,373 51,651 1.0590 1.0296 AVAILABLE FOR LEASE
------ ------- -------- ------ ------
TOTAL 47,373 51,651 1.0590 1.0296
--------------------------------------------------------------------------------------------------------------------------
[TENANT DEMISED AREAS Sheet DA2
PLANNING ==========================================
SERVICES of 4
INCORPORATED WESTMOOR TECHNOLOGY PARK VII
LOGO] XXXXXX WESTMOOR DRIVE Drawn by: 60
WESTMINSTER COLORADO Date: MAR00
LEVEL TWO (2) Job Number: 348001
--------------------------------------------------------------------------------------------------------------------------
SPACE PLANNING TENANT DEVELOPMENT INTERIOR DESIGN 0000 XXXXXXXX, XXXXX 000, XXXXXX, XXXXXXXX 00000 (303) 881-4800
--------------------------------------------------------------------------------------------------------------------------
X-0
00
XXXXXXX X-0
XXXXXXXX SEVEN
METHODOLOGY OF CALCULATION
All calculations, definitions, terms, and procedures are those outlined in the
ANSI/BOMA Z65.1-1996 publication "Standard Method For Measuring Floor Area in
Office Buildings".
For purposes of applying the information arrived at from the prescribed
measurement methodology the following "rules" apply.
1. The smallest increment against which the ratio will be applied
will be one-half floor (wing).
2. The floor R/U ratio that will be used will be determined by
whether or not the wing contains a corridor (i.e., no corridor
equals a full floor ratio; corridor equals a multi-tenant
ratio).
3. Each floor or wing will be calculated separately to determine
the appropriate applicable floor R/U ratio.
A-1-1
41
EXHIBIT B
LEGAL DESCRIPTION
BUILDING SEVEN
Xxx 0, Xxxxx 0, Xxxxxxxx Xxxxxxxxxx Xxxx 1st Replay, City of Westminster, County
of Jefferson, State of Colorado
B-1
42
EXHIBIT C
ESTOPPEL AND COMMENCEMENT DATE CERTIFICATE
THIS ESTOPPEL AND COMMENCEMENT DATE CERTIFICATE ("Certificate") is
executed this ____ day of ____________, 2000 by WESTMOOR BUSINESS PARK LTD.,
LLLP, a Colorado limited liability limited partnership ("Landlord"), and
REQUISITE TECHNOLOGY, INC., a Delaware corporation ("Tenant") with respect to
and forming a part of that certain Building Lease ("Lease") dated June __, 2000,
for the premises commonly known as 00000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxx 00000 ("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 ___________,
20_____, and the Lease Termination Date is agreed and deemed to be
________________, 20____, 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) _________________, 20___.
3. Tenant's first installment of Tenant's Pro Rata Share of Operating
Expenses in the amount of ______________________________________ Dollars
($______________) (is due on) (was paid on) ________________, 20____.
4. On _____________, 20____, Tenant deposited with Landlord a security
deposit in the form of __________________, in the amount of
_____________________________________ Dollars ($_____________).
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
43
IN WITNESS WHEREOF, the parties have executed this Certificate as of
the day and year first above written.
LANDLORD:
WESTMOOR BUSINESS PARK LTD, LLLP,
a Colorado limited liability limited
partnership
By: Westfield Development Company, Inc.,
a Colorado corporation, general
partner
By:
----------------------------------
Its:
---------------------------------
TENANT:
REQUISITE TECHNOLOGY, INC.,
a Delaware Corporation
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
STATE OF COLORADO )
) SS
COUNTY OF )
---------------------
The foregoing instrument was acknowledged before me this ______ day of
___________, 20____, 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
44
STATE OF )
------------------------ )
COUNTY OF )
-----------------------
The foregoing instrument was acknowledged before me this ______ day of
___________, 20____, by _______________________________ as
_____________________________________ of ______________________________________.
Witness my hand and official seal.
My commission expires: .
---------------------------------
-----------------------------------------
Notary Public
C-3
45
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
REQUISITE TECHNOLOGY, INC., a Delaware 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-1 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: Xxxx Xxxxx
Landlord's Representative: Xxxxxx Xxxxx / Xxxx Xxxxx
Submission Date: September 1, 2000
Tenant Extra Work:
(a) work in excess of the Tenant Finish Allowance;
(b) all modifications, changes and change Orders (as
defined in Paragraph 9) 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: $20.00 (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
46
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 and Tenant extra work in
the Premises in accordance with the Plans and Specifications (including, without
limitation, all permits, taxes, and a construction management fee of 3%,
architectural, engineering and construction contractor's fees associated with
the construction).
Tenant shall be entitled to any credit for any Tenant Finish Allowance which is
not used, which credit shall be applied to the first payments of Base Rent due
under this Lease.
(b) Subject to subsection (a) above, 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, which shall not be unreasonably withheld, in
accordance with Paragraph 6. In the event the cost of the tenant improvements
exceeds the Tenant Finish Allowance, Tenant shall have the option to either: (i)
pay such excess directly to the Landlord, or (ii) increase it's Tenant Finish
Allowance by an amount not to exceed an additional $2.00 per rentable square
foot, in which case such excess shall be amortized over the Lease term at 10%
annual interest and added to the Base Rent payable monthly.
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 (which approval
Landlord agrees to use reasonable efforts to obtain);
(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 increase the cost of
operation or maintenance of any of the systems of the Building;
(f) Landlord reasonably believes will reduce the market value
of the Premises or the Building at the end of the Term;
(g) 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.
D-2
47
(b) Within 30 days after approval or deemed approval of the
Tenant Space Plan, Tenant shall furnish to Landlord the construction drawings
("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.
(c) Upon receipt of the CD's, Landlord shall obtain bids from
three (3) mutually agreeable contractors for construction of the Improvements.
Landlord shall not be obligated to select the lowest bid, although it shall give
due consideration to such fact. Final bids will be reviewed by Landlord and
Tenant, but Landlord shall have the sole right to approve the same. Landlord
shall choose a final bid, subject to Tenant's rights as provided below. Within
two (2) days following Landlord's submission to Tenant of its choice of a final
bid, Tenant shall either (i) accept such choice, or (ii) inform Landlord of
Tenant's choice. If Tenant accepts Landlord's choice, then such choice shall be
final. If Tenant does not accept Landlord's choice, then Tenant shall inform
Landlord of Tenant's choice, and the bid chosen by Tenant shall be accepted by
both Landlord and Tenant and any applicable penalty clauses for delayed
construction shall be inapplicable.
8. Payment for Tenant Extra Work. Tenant will pay to Landlord, within
fifteen (15) days of receipt of the contractor's invoice from Landlord 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 by Tenant 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
D-3
48
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.
IN WITNESS WHEREOF, the parties have executed this Work Letter
Agreement this 6th day of June, 2000.
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 Pres.
---------------------------------
TENANT:
REQUISITE TECHNOLOGY, INC.,
a Delaware corporation
By: /s/ X.X. XXXXXXXXXX
----------------------------------
Its: Chief Financial Officer
---------------------------------
D-4
49
EXHIBIT D-1
BUILDING SEVEN
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".
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 Common areas including:
Toilet Core
First and Second floor lobbies
Elevators
Main Electrical Room
Fire Sprinkler Riser Room
Telecommunications Room
Stairways
Showers
Public Corridors, including third and fourth floor lobbies if
required by code
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.
ARCHITECTURAL ELEMENTS
o Main floor lobby finishes are expected to include tile
flooring, or carpet, polished metals, detailed drywall, hard
lid ceilings and specialty fixtures.
o Second floor lobby shall be of similar character in design and
materials as the main floor lobby.
o Third and fourth floor lobbies would be similar to public
corridor extensions, and only provided under a multi-tenant
floor condition, when required by code.
o Elevator cab finishes shall be of character and materials
compatible with lobbies.
o There shall be two (2) 2500 lb and one (1) 4500 lb hydraulic
elevators.
o Exit stairways per code.
o Main level core shall include the main entrance facility for
the telecommunications service and electrical service. It
shall also include sprinkler riser rooms, toilet rooms, and
janitor closet.
o Typical floor cores shall include toilet rooms, janitor
closet, electrical and telecommunications shafts, and
stairways.
o Toilet rooms shall include all tile floors, tile wet walls per
code, painted walls all other walls to ceiling, ceiling hung
toilet partitions, countertops, mirrors from top of counter to
ceiling - wall to wall, gyp. board ceilings, floor drains,
showers with lockers, and fixtures per code.
o Exterior materials shall consist of metal wall panels and
tinted/reflective solar vision and or spandrel glass in an
aluminum window wall system. Exterior public entries shall
include vestibules.
o The general office area will be designed for a 10'-0" clear
ceiling height.
D-1-1
50
STRUCTURAL ELEMENTS
The building construction will be steel beam and column framing with concrete
slabs on metal decking. The building roof structure is the same as the floor
framing except no concrete topping is poured over the deck. The building will be
founded on reinforced concrete piers, drilled to bedrock - soil report
dependent. The ground floor shall be structural floor with crawl space.
o Floor loading criteria shall generally follow these
parameters:
Dead Loads - Floor design to accommodate 25 psf of partitions,
lights, ceiling and sprinklers suspended from floor framing.
Live Loads - Floor designed for office use loading of 50 psf.
MECHANICAL ELEMENTS
The base building shell and core shall include the following elements:
o Roof top mounted gas fired (morning warm up only) HVAC units.
o All vertical duct distribution risers and dampers.
o The typical floor horizontal duct distribution system will
include all Fan Powered Boxes (FPB's) with electric coils
sized for the perimeter skin load. On the average there will
be one zone box for every 1600 square feet, with fan-powered
boxes at an average of 1200 square feet each, and interior
spaces will have a box for every 2000 square feet.
o The system will be a Variable Air Volume (VAV) system. The
base building shall include DDC - Direct Digital Controls with
the capability of providing floor by floor zoning for after
hour's usage.
o Electric unit or cabinet heaters can be used where applicable
to the overall design.
o Toilet room exhaust system.
o 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.
PLUMBING ELEMENTS
The base building shell and core shall include the following elements:
o Domestic cold water, including drinking fountains at each
floor.
o 110 degree domestic hot water at public toilet areas.
o Complete sanitary waste and vent system.
o Plumbing fixtures and flush valves.
o Showers
o Natural gas piping systems
o Wet riser system at each end of the core for future tenant
usage.
ELECTRICAL ELEMENTS
The base building shell and core shall include the following elements:
o The main switchboard shall be designed to provide 8 xxxxx per
square foot for tenant's power and lighting.
o Electrical backbone riser system that distributes from the
main electrical entrance facility to all floors within a shaft
in the core.
o All step-down transformers shall be K rated to minimize
harmonic distortion.
D-1-2
51
o Ground fault protection as required by code and to provide a
safe electrical environment.
o Site and parking lot lighting shall be provided to safe
levels.
o Electronic card readers shall be provided at all building
public entrances.
o An ATO switch.
o Tenant finish electrical work will include power monitoring
devices (meters) installed under the tenant finish allowance.
TELECOMMUNICATIONS ELEMENTS
The base building shell and core shall include the following elements:
o Incoming telecommunications systems from US West in sufficient
size to serve the tenant needs. The incoming system will be
terminated in the main telecommunications closet. Also
included are additional blank conduits for additional
providers of telecommunications or fiber optics service to the
main telecommunications closet.
o Telecommunications backbone riser system to each floor via
shaft in core.
FIRE PROTECTION SYSTEM
The base building shell and core shall include the following elements:
o A complete wet system for a fully-sprinklered office building.
Heads will be spaced as required by code in tenant space,
turned up into structural system.
o All vertical and horizontal bulk and distribution piping,
valves, etc. to provide a fully functioning, code compliant
system in finished common areas.
o Head distribution and drops to the finished ceiling for a code
compliant system, shall occur in tenant space as part of the
tenant finish allowance.
FIRE ALARM SYSTEM
The base building shell and core shall include the following elements:
o A complete fire alarm system that is code compliant for all
shell and core elements. This would include the main panel in
the command center that is fully addressable and capable of
being monitored.
o The system will include all flow and tamper switches required
to monitor the building fire sprinkler system and all required
pull stations, horns, and strobes required under the shell and
core.
D-1-3
52
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 reasonably 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 reasonably
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 reasonable
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 reasonably prescribed by Landlord; and Landlord shall
have the right to reasonably 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, for any damage done to
Tenant's furniture or equipment by the janitor or any of janitor's staff,
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.
X-0
00
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 the first one hundred fifty (150) card keys without
charge. If Tenant requires additional card keys, Tenant shall pay $6.00 per key
to Landlord for each additional card key issued to Tenant and Tenant's
employees. The fee paid for additional and lost card keys may be uniformly
increased from time to time.
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,
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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.
18. 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 reasonably and 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 commercially reasonable 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
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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, 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 posted as a non-smoking area.
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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EXHIBIT G
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") dated this _____ day of June,
2000, is by and between WESTMOOR BUSINESS PARK LTD., LLLP., a Colorado limited
liability limited partnership ("Grantor"), and REQUISITE TECHNOLOGY, INC., a
Delaware Corporation ("Grantee").
WITNESSETH:
WHEREAS, Grantor is the owner of that certain real property located in
Jefferson County, Colorado, described on Exhibit A attached hereto and
incorporated herein by this reference, with a building situate thereon commonly
referred to as Building Seven, Westminster, Colorado (the "Building"); and
WHEREAS, Grantee desires to obtain from Grantor a license to erect,
maintain and operate a certain transmitter or antenna atop the Building (the
"Transmitter"), and install certain connecting cables, conduits and other
electrical equipment (the "Transmitter") described in Exhibit G-1 (the "Cables")
within the shafts, ducts, and conduits in the Building; and
WHEREAS, Grantor desires to confer upon Grantee a license for such
purposes provided that Grantee pays to Grantor the consideration as specified
herein below.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged. The
parties hereto do hereby agree as follows:
1. Grant of License. Subject to the following, Grantor hereby confers
upon Grantee a non-exclusive license for the construction, operation and
maintenance of the Transmitter atop the Building, and for the placement of the
Cables and related equipment within the Building, in such locations as Grantor
shall approve in Grantor's sole discretion.
2. Term. This Agreement shall commence on the date the lease between
Grantor and Grantee for certain premises within the building ("Lease")
commences, and shall remain in existence until and unless terminated as herein
provided or until the Lease is terminated as provided therein. Either party
hereto may provide to the other a notice to terminate, and upon the passage of
thirty (30) days following such giving of a notice to terminate by one party to
the other hereunder, this Agreement, except for the obligation of Grantee to pay
accrued and unpaid fees due to Grantor hereunder, shall terminate and be of no
further force and effect.
3. Plans and Specifications. Prior to performing any construction,
installation or remodeling work on or within the Building, Grantee shall submit
to Grantor, for the approval of Grantor, plans and specifications (the "Plans
and Specifications") for the erection of the Transmitter and placement of the
Cables within the Building. The Plans and Specifications shall indicate the
exact position for the placement of the Transmitter and the Cables, shall
specify the procedures to be utilized in placing the Cables and erecting the
Transmitter, describe any disruption reasonably to be expected by the tenants of
the Building or Grantor due to the placement of the Cables and erection of the
Transmitter, specify any non-structural additions or alterations to the roof or
any other area of the Building contemplated by Grantor, and any other matters
deemed of material concern to agents of Grantor. Grantee shall not cause any
installation or construction of the Transmitter or placement of the Cables,
without the prior written discretionary approval by Grantor of the Plans and
Specifications.
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4. Compliance with Laws. Grantee shall secure all permits, licenses and
approvals required by any covenants or restrictions affecting the Building, or
governmental authority for the erection and operation of the Transmitter and
placement of the Cables prior to their erection and installation, and Grantee
shall comply with all applicable covenants and restrictions, and all laws and
regulations concerning the placement and operation of the Transmitter. Grantee
shall only operate the Transmitter in compliance with all applicable laws and in
such a manner that it does not cause any disturbance or interference to any
other communication equipment used within or existing upon the Building.
5. Grantee's Use. Grantee shall provide Grantor twenty-four (24) hours
written notice prior to Grantee's agents or employees entering within or atop
the Building, and Grantee's exercise of its right hereunder shall be limited
only to those areas within the Building which are necessary for Grantee's
conduct of its activities pursuant to the rights granted herein. Such access
shall only be with a representative of Grantor. Grantee in the exercise of its
rights hereunder shall not cause any material damage to the Building, and shall
not unreasonably disturb or interfere with Grantor's or Grantor's tenants' use
or enjoyment of the Building or the conduct of Grantor or Grantor's tenants'
businesses therein or the use by Grantor or its tenants of similar facilities
within or atop the Building.
6. Workmanlike Construction. All construction and maintenance work
shall be performed by Grantee in a good, safe and workmanlike manner, in
compliance with all federal, state and local laws, rules and regulations
applicable thereto.
7. Mechanic's Liens. If any mechanic's lien is recorded against the
Building for work claimed to have been done for, or materials claimed to have
been furnished to, Grantee, it shall be discharged by Grantee within ten (10)
days thereafter at Grantee's sole cost and expense; provided however that
Grantee is hereby granted the right to contest such lien upon the tendering to
Grantor, as security, a sum equal to one-hundred fifty percent (150%) of the
amount of the lien claimed and written authorization permitting Grantor to
tender such sum to satisfy said lien if Grantee fails to satisfy the same within
thirty (30) days after issuance of a final judgment against Grantee and/or
Grantor.
8. Indemnity. Nothing shall be done or suffered to be done by Grantee
that will in any manner impair the usefulness or safety of the Building. Grantee
agrees that it will at all times protect, defend and indemnify and hold harmless
the Grantor, its agents, employees, tenants and their successors and assigns,
from and against all liabilities, losses, claims, demands, actions and court
costs (including reasonable attorneys' fees), arising from or growing out of
loss or damage to property or injury to or death to any persons resulting in any
manner from the actions or failure to act of Grantee or any invitees, guests,
agents, employees or contractors of Grantee. Grantee shall promptly pay to
Grantor, its successors or assigns, the full amount of any such costs, loss or
damage which Grantor, its successors or assigns may sustain or incur, or for
which Grantor, its successors or assigns, may become liable.
9. Insurance. Grantee shall obtain and keep in force during the term
hereof a liability insurance policy protecting and indemnifying Grantor in
amounts reasonably satisfactory to Grantor. Such liability insurance policy
shall specifically name Grantor as an additional named insured. An original
counterpart of such insurance policy shall be furnished to Grantor by Grantee
upon execution hereof and Grantee shall furnish to Grantor evidence of a
commitment by the insurance company or insurance companies to notify Grantor in
writing of any material change, expiration or cancellation of the insurance
policy or policies required hereunder not less than thirty (30) days prior to
such change, expiration or cancellation is effective. In addition to the above,
Grantee shall obtain and keep in force during the term hereof such insurance
required by any law or regulation, or prudent business practices, for the
activities of Grantee in constructing, operating and maintaining the Transmitter
and installing the Cables.
10. Grantor's Use. Grantor hereby reserves to itself and its tenants
the right to use the Building and the roof and to grant to other users rights to
utilize the roof for such purposes as Grantor may elect, so long as such uses
and purposes do not unreasonably interfere with or obstruct the rights conferred
herein. At Grantor's option and expense, Grantee's transmitter may be relocated
to another area.
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11. Grantee's Risks. Grantee and all licensees and invitees, agents,
employees and guest of Grantee shall use the Building at their own risk, and in
no event shall Grantor be liable for any personal injury, property damage, cost
or expense incurred in the use of the Building by such individuals.
12. Grantor Expenses. Grantee shall reimburse Grantor, upon notice from
Grantor, for all expenses reasonably incurred by Grantor in reviewing the Plans
and Specifications, providing access to areas of the Building, and otherwise
engaging in activities with the purpose of facilitating the erection of the
Transmitter and placement of the Cables.
13. Termination. Upon termination of this Agreement for any reason
whatsoever, Grantee shall be held liable for the cost of promptly removing the
Transmitter and Cables and restoring any damage or modification to the Building
caused by Grantee.
14. Notices. Any notice required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given or
delivered when delivered by hand or three (3) days after being deposited in the
United States mail, first class, postage prepaid, and addressed as follows:
If to Grantee: Requisite Technology, Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Telephone:(000)-000-0000
Facsimile: (000)000-0000
If to Grantor: WESTMOOR BUSINESS PARK LTD, LLLP
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
-------------------------------
-------------------------------
-------------------------------
15. License Only. This Agreement is solely a license and does not grant
or convey to Grantee any real property interest in or to the Building. This
Agreement shall not be recorded in the real property records of the county
wherein the Building is situate by Grantee, and if in the event it is so
recorded, it shall be deemed null and void and of no further force and effect.
16. Assignment. The duties, rights and responsibilities of Grantee
hereunder shall not be assigned without the prior written consent of Grantor.
17. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Colorado.
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IN WITNESS WHEREOF, this Agreement has been executed the day and year
first above written.
"Grantor"
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
---------------------------------
"Grantee:
REQUISITE TECHNOLOGY, INC.
a Delaware Corporation
By: /s/ X. X. XXXXXXXXXX
----------------------------------
Its: Chief Financial Officer
---------------------------------
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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 Requisite Technology, Inc., a Delaware corporation., for the
Premises known as Suite 200, 10955 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. Renewal Options: Landlord grants to Tenant an option (the "Renewal Option")
to extend the term of the Lease for two (2) periods of five (5) years ("Option
Term").
A. The Renewal Option shall apply to all space under the Lease and
shall be on the following terms and conditions.
1. Written notice ("Renewal Notice") of exercise of any
Renewal Option shall be given to Landlord no later
than six (6) months prior to the expiration of either
the Primary Lease Term, or first Option 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 any Renewal Option, and the Lease shall
expire in accordance with its terms, at the end of
the Primary Lease Term, or the first Option Term.
3. Tenant's right to exercise a Renewal Option shall be
conditioned upon Tenant not being in default beyond
any applicable cure periods under the Lease at the
time of the exercise of a Renewal Option or at the
time of commencement of an Option Term.
4. The Renewal Options granted hereunder shall be upon
the terms and conditions contained in the Lease,
except the rental to be paid by Tenant for each of
the Option Terms shall be the then current "Market
Rate" for such periods for similar quality buildings
in the competitive market but no less than the Base
Rent for the Premises at the end of the Primary Lease
Term, or the First Option Term.
B. For the purposes of this paragraph 1, 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 either Term) for substantially equivalent lease transactions
("Comparable Transactions") for new or renewal leases which are executed within
six (6) months of Tenant's exercise of either 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.
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C. Landlord and Tenant also agree that Landlord has not granted and
Tenant has no rights or options to renew or extend the term of the Lease
subsequent to the expiration of the Option Term.
D. 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
any Renewal Option.
E. 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 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 MAI 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.
4. The cost of arbitration shall be paid by Landlord and
Tenant equally.
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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.
2. Operation Expense Exclusions. Notwithstanding anything to the contrary
contained in this Lease, the following shall not be included within Operating
Expenses:
A. Leasing commissions, attorneys' fees, costs, disbursements,
and other expenses incurred in connection with negotiations or
disputes with tenants, or in connection with leasing,
renovating, or improving space for tenants or other occupants
or prospective tenants or other occupants of the Building;
B. The cost of any service sold to any tenant (including
Tenant) or other occupant for which Landlord is entitled to be
reimbursed as an additional charge or rental over and above
the Base Rent and/or escalations payable under the lease with
that tenant;
C. Any depreciation on the Building or Property;
D. Expenses in connection with services or other benefits of a
type that are not provided to Tenant but which are provided
another tenant or occupant of the Building or Property;
E. Costs incurred due to Landlord's violation of any terms or
conditions of this Lease or any other lease relating to the
Building or Property;
F. Overhead profit increments paid to Landlord's subsidiaries
or affiliates for management or other services on or to the
building or for supplies or other materials to the extent that
the cost of the services, supplies, or materials exceeds the
cost that would have been paid had the services, supplies, or
materials been provided by unaffiliated parties on a
competitive basis;
G. All interest, loan fees, and other carrying costs related
to any mortgage or deed of trust or related to any capital
item completed during the initial construction, and all rental
and other payable due under any ground or underlying lease, or
any lease for any equipment ordinarily considered to be of a
capital nature (except janitorial equipment which is not
affixed to the Building);
H. Any compensation paid to clerks, attendants, or other
persons in commercial concessions operated by Landlord;
I. Any costs, fines, or penalties incurred due to violations
by Landlord of any governmental rule or authority, this Lease
or any other lease in the Property, or due to Landlord's
negligence or willful misconduct;
J. Costs for sculpture, paintings, or other objects of art
(nor insurance thereon or extraordinary security in connection
therewith);
K. Wages, salaries, or other compensation paid to any
executive employees above the grade of building manager;
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L. The cost of correcting any building code or other
violations which were violations prior to the Commencement
Date; and
M. The cost of containing, removing, or otherwise remediating
any contamination of the Property (including the underlying
land and ground water) by any toxic or hazardous materials
(including, without limitation, asbestos and "PCB's") where
such contamination was not caused by Tenant.
Costs of a capital nature, except as provided in Sections
5(a)(3)A.(xiii), and 38(a).
3. Landlord's Warranties. Notwithstanding anything to the contrary in this
Lease, Landlord warrants to the best of its knowledge, that on the commencement
of the Primary Lease term hereof:
(A) the Premises shall substantially comply with all laws, codes,
ordinances and other governmental requirements then applicable
to the Premises and the building and/or complex in which the
premises are located, and
(B) the Premises, including the improvements and equipment
therein, shall be in good working order, condition, and
repair, and
(C) the Premises, the Building and/or complex in which the
Premises are located, and the land and groundwater thereunder
is in substantial compliance with Environmental Laws.
(D) Landlord is the owner of the Building, and
(E) Tenant's permitted use complies with the Covenants if any, and
(F) Landlord knows of no material defects in the Premises or
Building which would unreasonably interfere with Tenant's use
and enjoyment of the Premises.
4. Indemnification. Notwithstanding anything to the contrary in Section 13:
(A) Tenant shall not be required to indemnify, defend, or hold
Landlord harmless from or against claims, liability, loss,
cost or expense arising out of (i) the breach by Landlord, or
Landlord's agents, employees, licensees, invitees, or
independent contractors (collectively "Landlord's Agents"), of
any covenant, representation or warranty under this Lease, or
(ii) any negligence or willful misconduct of Landlord or
Landlord's Agents.
(B) Landlord shall protect, defend and hold harmless Tenant and
Tenant's employees, officers, agents, directors, and
shareholders, and the successors and assigns of each of the
foregoing against and from any and all claims, demands,
losses, liabilities, damages, costs and expenses, (including,
without limitation, attorney's and consultants' fees and the
costs and expenses of defense) arising or resulting from (i)
Landlord's or Landlord's Agents' breach of any covenant,
representation or warranty under this Lease and (ii)
Landlord's or Landlord's Agents negligence or willful
misconduct. The mutual indemnity obligations of Landlord and
Tenant under this Lease shall not, however, release the
respective insurers of Landlord and Tenant from such insurers'
obligations under any policies covering their respective
insureds.
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5. Permitted Transfer. Notwithstanding anything to the contrary contained in
this Lease, Tenant may assign this Lease or sublet the Premises, or any portion
thereof, without Landlord's consent, to any entity which controls, is controlled
by, or is under common control with Tenant; to any entity which results from a
merger of, reorganization of, or consolidation with Tenant; to any entity
engaged in a joint venture with Tenant; or to any entity which acquires
substantially all of the stock or assets of Tenant, as a going concern, with
respect to the business that is being conducted in the Premises (hereinafter
each a "Permitted Transfer"). In addition, a sale or transfer of the capital
stock of Tenant shall be deemed a Permitted Transfer if (1) such sale or
transfer occurs in connection with any bona fide financing or capitalization for
the benefit of Tenant, or (2) Tenant is or becomes a publicly traded
corporation. Landlord shall have no right to terminate the Lease in connection
with, and shall have no right to any sums or other economic consideration
resulting from any Permitted Transfer.
6. Permitted Improvements. Notwithstanding the provisions of Paragraph 10 to the
contrary: Tenant shall be entitled to make alterations, additions, improvements
and utility installations in or to the Premises, without the prior consent of
Landlord, so long as each of the same (i) do not exceed the sum of $5,000.00 in
cost and (ii) do not affect any structural or exterior portions of the Building
or adversely affect the Building electrical, plumbing or HVAC systems.
In addition, Tenant shall not be required to remove any alterations,
additions, improvements or utility installations for which Tenant has obtained
Landlord's consent, unless Landlord has indicated at the time of granting such
consent, that such removal will be required at the end of the Lease term.
7. Termination. Provided that (i) Tenant is not in default of its obligations
hereunder, and (ii) Tenant executes a new lease agreement to relocate to new
premises within Westmoor Technology Park at a size and for a term acceptable to
Landlord, Tenant may terminate this Lease effective on the date of commencement
of the new lease. As consideration for the termination of this Lease, Tenant
shall pay to Landlord the following:
(A) The unamortized balances of (i) the $20.00 per rentable square foot
Tenant Improvement Allowance, and (ii) the leasing commission paid by Landlord
in connection with this Lease, which amounts shall be fully amortized over the
first five (5) years of the Lease Agreement at ten percent (10%) annual
interest.
(B) The unamortized balance of the $2.00 per rentable square foot
additional Tenant Improvement Allowance, if utilized by Tenant, as described in
Section 5(b) of Exhibit D, the Work Letter Agreement, which amount shall be
fully amortized over the seven (7) year Lease term at ten percent (10%) annual
interest.
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:
REQUISITE TECHNOLOGY, INC.,
a Delaware corporation
By: /s/ X. X. XXXXXXXXXX
----------------------------------
Its: Chief Financial Officer
---------------------------------
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