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EXHIBIT 10.15
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
3. Guarantor: N/A
4. Premises: Suite No. 205
5. Rentable Square Feet: 23,985
6. Commencement Date: March 12, 1999
7. Expiration Date: March 11, 2004
8. Term: Five (5) years
9. Rent Commencement Date: May 15, 1999
10. Initial Base Rent (Annually): $12.85 per rentable square foot
11. Initial Base Rent (Monthly): $1.0708 per rentable square foot
12. Increase in Base Rent: See Paragraph 3
13. Security Deposit: $25,683.00
14. Parking Spaces: 5 per 1,000 USF
15. Tenant's Pro Rata Share
of the Building: 24.50%
16. Option on Additional Space: None
17. Option to Renew: Two (2) five (5)-year periods
18. Landlord Broker: Xxxxxxxxx Xxxx Company
19. Tenant Broker: Colorado Group
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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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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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BUILDING LEASE
THIS LEASE is made this 23rd day of December 1998, 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 23,985 square feet of space (Rentable Area) on the east end of the
second floor(s), suite(s)205 of the building known as Building Four
("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 sixty-two (62) months (the
"Primary Lease Term") commencing at 12:01 a.m. on March 12, 1999 (the
"Commencement Date") and terminating at 12:00 midnight on May 11, 2004 (the
"Termination Date"), unless sooner terminated pursuant to the terms hereof. In
the event the Premises are not "Ready for Occupancy" as such term is defined in
Paragraph 20 hereof, the Commencement Date shall mean and refer to the date the
Premises are Ready for Occupancy.
(b) If, as a result of the postponement or acceleration of the
Commencement Date, the Primary Lease Term would begin other than on the first
day of the month, Tenant shall pay proportionate rent at the same monthly rate
set forth herein (also in advance) for such partial month and all other terms
and conditions of this Lease shall be in force and effect during such partial
month, and the end of the Primary Lease Term hereof shall be adjusted to a date
which is the last day of the month sixty-two (62) 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
-------------------- ---------------- ----------------- --------
1-2 $0.00 $0.00 N/A
3-38 $308,207.25 $25,683.94 $12.85
39-62 $335,790.00 $27,982.50 $14.00
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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 Twenty Five Thousand, Six
Hundred-Eighty Three and no/100 Dollars ($25,683.00), the receipt of which is
hereby acknowledged, as security for the payment by Tenant of the rent and all
other sums herein agreed to be paid and for the faithful performance of all the
terms, conditions and covenants of this Lease. If, at any time during the term
hereof, Tenant shall be in default in the performance of any provisions of this
Lease, Landlord shall have the right, but shall not be obligated, to use said
deposit, or so much thereof as necessary, in payment of any rent in default,
reimbursement of any expense incurred by Landlord, and in payment of any damages
incurred by the Landlord by reason of Tenant's default. In such event, Tenant
shall, on written demand of Landlord, forthwith remit to Landlord a sufficient
amount in cash to restore said deposit to its original amount. In the event said
deposit has not been utilized as aforesaid, said deposit, or as much thereof as
has not been utilized for such purposes, shall be refunded to Tenant without
interest, within thirty (30) days after the termination of this Lease upon full
performance of this Lease by Tenant and vacation of the Premises by Tenant.
Landlord shall have the right to commingle said deposit with other funds of
Landlord. Landlord 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., 23,985 square
feet) and the denominator of which is the Building Rentable Area (i.e., 97,916
square feet), and is equal to 24.50%. At such time, if ever, any space is added
to or subtracted from the Premises pursuant to the terms of this Lease, Tenant's
Pro Rata Share shall be increased or decreased accordingly.
(3) "Operating Expenses" shall mean:
A. All operating expenses of any kind or nature which are
necessary, ordinary or customarily incurred with respect to the operation and
maintenance of the Building Complex as determined in accordance with generally
accepted accounting principles and shall include, but not be limited to:
(i) Costs of supplies, including but not limited to the
cost of "relamping" all tenant lighting as the same may be required from time to
time;
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(ii) Costs incurred in connection with obtaining and
providing energy for the Building Complex, including but not limited to costs of
propane, butane, natural gas, steam, electricity, solar energy and fuel oils,
coal or any other energy sources as well as costs for heating, ventilation, and
air conditioning services ("HVAC");
(iii) Costs of water and sanitary and storm drainage
services;
(iv) Costs of janitorial services;
(v) Costs of Security services or systems;
(vi) Costs of general maintenance and repairs,
including costs under HVAC and other mechanical maintenance contracts; and
repairs and replacements of equipment used in connection with such maintenance
and repair work;
(vii) Costs of maintenance and replacement of
landscaping; and costs of maintenance, repair, striping and repaving of parking
areas, common areas, plazas and other areas used by tenants of the Building
Complex, exclusively or in common with others, including trash and snow removal;
(ix) 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;
(x) Labor costs, including wages and other payments,
costs to Landlord of worker's compensation and disability insurance, payroll
taxes, and welfare fringe benefits.
(xi) 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);
(xii) 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;
(xiii) 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
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(xiv) "Real Estate Taxes" including all real property
taxes and assessments levied against the Building Complex by any governmental or
quasi-governmental authority, including any taxes, assessments, surcharges, or
service or other fees of a nature not presently in effect which shall hereafter
be levied on the Building Complex as a result of the use, ownership or operation
of the Building Complex or for any other reason, whether in lieu of or in
addition to any current real estate taxes and assessments; provided, however,
that any taxes which shall be levied on the rentals of the Building Complex
shall be determined as if the Building Complex were Landlord's only property and
provided further, that in no event shall the term "Taxes and Assessments", as
used herein, include any federal, state or local income taxes levied or assessed
on Landlord, unless such taxes are a specific substitute for real property
taxes; such term shall, however, include gross taxes on rentals and expenses
incurred by Landlord for tax consultants and in contesting the amount or
validity of any such Taxes or Assessments (all of the foregoing are collectively
referred to herein as "Taxes"). "Assessments" shall include any and all
so-called special assessments, license tax, business license fee, business
license tax, commercial rental tax, levy, charge or tax imposed by any authority
having the direct power to tax, including any city, county, state or federal
government, or any school, agricultural, lighting, water, drainage or other
improvement or special district thereof, against the Premises, the Building or
the Building Complex, or against any legal or equitable interest of Landlord
therein. For the purposes of this Lease, any special assessment shall be deemed
payable in such number of installments as is permitted by law, whether or not
actually so paid. If the Building Complex has not been fully assessed as a
completed project, for the purposes of computing the Real Estate Taxes for any
adjustment required herein, the same shall be increased by Landlord's
accountants, in accordance with their estimate of what the assessment will be,
upon full completion of the Building Complex, including installation of all
tenant finish items.
(xv) 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 4 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 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.
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(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 (x) (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 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
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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 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
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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
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.
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(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 8 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
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
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.
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(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 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.
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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), 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
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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 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.
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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 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
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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.
(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
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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 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 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.
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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;
(8) Tenant shall fail to perform any of the other agreements,
terms, covenants or conditions hereof on Tenant's part to be performed (other
than the obligation to pay rent or any other charges payable hereunder), and
such nonperformance shall continue for a period of fifteen (15) days after
notice thereof by Landlord to Tenant; provided, however, that if Tenant cannot
reasonably cure such nonperformance within fifteen (15) days, Tenant shall not
be in default if it commences cure within said fifteen (15) days and diligently
pursues the same to completion; and
(9) Tenant shall fail to obtain a release of any mechanic's lien,
as required herein.
(10) Tenant shall violate or breach any covenants or condition
contained in the Covenants or any rules or regulations of the Association
established pursuant thereto and shall not cure such violation or breach within
fifteen (15) days after notice thereof from the Association or from Landlord.
(b) Upon the occurrence of an event of default, Landlord shall have
the right, at its election, then or at any time thereafter and while any such
event of default shall continue, either:
(1) To give Tenant written notice of Landlord's intention to
terminate this Lease on the date such notice is given or on any later date
specified therein, whereupon, on the date specified in such notice, Tenant's
right to possession of the Premises shall cease and this Lease shall thereupon
be terminated; provided however, all
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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.
(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.
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(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 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
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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.
(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
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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 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,
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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 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
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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: ________________
Facsimile Number: ________________
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
Colorado Group (the "Tenant 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 with Landlord's separate agreement with the Tenant 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.
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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.
33. Rights Reserved to Landlord:
(a) All portions of the Building are reserved to Landlord except the
Premises and the inside surfaces of all walls, windows and doors bounding in the
Premises, but including exterior building walls, core corridor walls and doors
and any core corridor entrance. Landlord also reserves any space in or adjacent
to the Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts,
electric or other utilities, sinks or other building facilities, and the use
thereof, as well as the right to access thereto through the Premises for the
purposes of operation, maintenance and repair, upon written notice of not less
than twenty-four (24) hours, except in the event of emergencies or apparent
emergencies, when no prior notice shall be required.
(b) Landlord shall have the following rights without liability to
Tenant for damage or injury to property, person or business (all claims for
damage being hereby waived and released), and without effecting an eviction or
disturbance of Tenant's use or possession of the Premises or giving rise to any
claim for setoffs or abatement of rent:
(1) To enter the Premises as more fully provided in this Lease.
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(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.
34. 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.
35. Signage:
(a) No sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the inside or outside of the Building unless of such
color, size and style and in such place upon or in the Building as shall be
first designated by Landlord, but there shall be no obligation or duty on
Landlord to allow any sign, advertisement or notice to be inscribed, painted or
affixed on any part of the inside or outside of the Building. A directory in a
conspicuous place, 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 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.
36. Attorneys' Fees: In the event of any dispute hereunder, or any default
in the performance of any term or condition of this Lease, the prevailing party
shall be entitled to recover all costs and expenses associated therewith,
including reasonable attorneys' fees.
37. Hazardous Materials:
(a) Tenant shall not cause or permit any Hazardous Material to be
brought upon, kept, or used in or about the Premises by Tenant, its agents,
employees, contractors, licensees or invitees, without the prior written consent
of Landlord
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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 presently in
effect or that may be promulgated in the future, as such statutes, regulations
and ordinances may be amended from time to time.
38. Americans with Disabilities Act.
(a) Landlord shall, subject to reimbursement as part of the Building's
Operating Expenses 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
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that Landlord shall have no obligation to consent to, or permit, a use of the
Premises, or an assignment of the Lease or a sublease of the Premises
(collectively herein a "Use Change") if such Use Change would require the making
of any alterations, modifications or improvements to the Premises or the Common
Areas, or the acquisition of any auxiliary aids, required under the ADA, unless
Tenant performs all such acts and satisfies Landlord's requirements for
financial responsibility for the costs of such compliance (which may include, by
way of example, posting of a completion bond, or establishment of an escrow
account).
(d) With respect to the Leasehold Improvements (as described in the
Work Letter Agreement), Tenant shall be responsible for compliance with the ADA
in the design and layout of the Leasehold Improvements and Landlord shall have
no responsibility therefore.
39. Bankruptcy or Insolvency. If the Tenant becomes a debtor under Chapter
7 of the United States Bankruptcy Code, or in the event that a petition for
reorganization or adjustment of debts is filed concerning the Tenant under
Chapter 11 or Chapter 13 of the Bankruptcy Code, or a proceeding filed under
Chapter 7 is transferred to Chapter 11 or 13, the Trustee or the Tenant, as
Debtor-in-Possession, shall be deemed to have rejected this Lease. No election
by the Trustee or Debtor-in-Possession to assume this Lease shall be effective
unless each of the following conditions, which Landlord and Tenant hereby
acknowledge to be commercially reasonable in the context of a bankruptcy
proceeding, has been satisfied, and the Landlord has so acknowledged in writing:
(a) The Trustee or Debtor-in-Possession has cured, or has provided the
Landlord "adequate assurance" (as hereinafter defined) that from the date of
such assumption, the Trustee or Debtor-In-Possession will promptly cure all
monetary and non-monetary defaults under this Lease.
(b) The Trustee or Debtor-in-Possession has compensated, or has
provided to the Landlord adequate assurance that within ten (10) days of the
date of assumption, the Landlord will be compensated, for any pecuniary loss
incurred by the Landlord arising from default of the Tenant, the Trustee or the
Debtor-in-Possession as recited in the Landlord's written statement of pecuniary
loss sent to the Trustee or Debtor-in-Possession.
(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.
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(e) The following conditions shall apply to any assignment of this
Lease in Bankruptcy Proceedings:
(1) If the Trustee or Debtor-in-Possession has assumed this Lease
and elects to assign the Lease to any other person, such interest or estate of
Tenant in this Lease may be so assigned only if the Landlord has acknowledged in
writing that the intended assignee can provide to the Landlord "adequate
assurance of future performance" (as hereinafter defined) of all of the terms,
covenants and conditions of this Lease to be performed by the Tenant.
(2) For the purposes of this provision, Landlord and Tenant
acknowledge that, in the context of a bankruptcy proceeding, at a minimum,
"adequate assurance of future performance" shall mean that each of the following
conditions has been satisfied, and the Landlord has so acknowledged in writing:
A. The proposed assignee has submitted a current financial
statement audited by a Certified Public Accountant which shows the net worth and
working capital and amounts determined by Landlord to be sufficient to assure
the future performance by such assignee of all of Tenant's obligations under
this Lease;
B. The proposed assignee, if requested by the Landlord,
shall have obtained guarantees in form and substance satisfactory to the
Landlord from one or more persons who satisfy the Landlord's standards of
creditworthiness;
C. The Landlord has obtained all consents or waivers from
any third party required under any lease, mortgage, financing arrangement, or
other agreement by which the Landlord is bound, in order to permit the Landlord
to consent to such assignment.
40. Miscellaneous:
(a) The rules and regulations attached hereto as Exhibit E, as well as
such 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
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and any holder of a mortgage or deed of trust covering the Building Complex or
any portion thereof whose address Tenant has been notified in writing and so
long as an opportunity has been granted to Landlord and such holder to correct
such violation as provided in Paragraph 40(h) hereof.
(e) If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there shall be added as
a part of this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable, provided such addition does not increase or decrease the
obligations of or derogate from the rights or powers of either Landlord or
Tenant.
(f) The captions of each paragraph are added as a matter of
convenience only and shall be considered of no effect in the construction of any
provision or provisions of this Lease.
(g) Except as herein specifically set forth, all terms, conditions and
covenants to be observed and performed by the parties hereto shall be applicable
to and binding upon their respective heirs, administrators, executors,
successors and assigns. The terms, conditions and covenants hereof shall also be
considered to be covenants running with the land.
(h) Except as otherwise specifically provided herein, in the event
Landlord shall fail to perform any of the agreements, terms, covenants or
conditions hereof on Landlord's part to be performed, and such nonperformance
shall continue for a period of thirty (30) days after written notice thereof,
from Tenant to Landlord, or if such performance cannot be reasonably had within
such thirty (30) day period, and Landlord shall not in good faith have commenced
such performance within such thirty (30) day period and proceed therewith to
completion, it shall be considered a default of Landlord under this Lease.
Tenant shall give written notice to Landlord in the matter herein set forth and
shall afford Landlord a reasonable opportunity to cure any such default. In
addition, Tenant shall send notice of such default by certified or registered
mail, with proper postage prepaid, to the holder of any mortgages 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.
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(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.
(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.
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41. 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/ XXXXXXX XXXXX
--------------------------------------------
Name: XXXXXXX XXXXX
------------------------------------------
Title: PRESIDENT/CEO
-----------------------------------------
STATE OF COLORADO )
) SS
COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 23rd day of
December, 1998, 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
[STAMP]
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STATE OF COLORADO )
) SS
COUNTY OF BOULDER )
The foregoing instrument was acknowledged before me this 23rd day of
December, 1998, by Xxxxxxx Xxxxx as President/CEO of Requisite Technology, Inc.
Witness my hand and official seal.
My commission expires: November 13, 1999.
/s/ [ILLEGIBLE]
---------------------------------------------
Notary Public
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ADDENDUM
This Addendum is attached to and forms an integral part to the Lease by and
between Westmoor Business Park Ltd., LLLP, a Colorado limited liability limited
partnership and Requisite Technology, Inc., a Delaware corporation., for the
Premises known as Suite 205, 10355 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.
1
38
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.
2
39
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. Right of Refusal. In the event that Landlord (i) offers to lease space in the
Building to a prospective tenant; or (ii) receives an offer to lease space in
the Building from a prospective tenant which it is willing to accept (the events
in (i) and (ii) are each a "Refusal Event" and such prospective tenant is
hereafter referred to as the "Third Party" with respect to all or a portion of
the balance of the leaseable space on the second floor of the Building, of which
Landlord has control, which is hereafter referred to as the "Refusal Space")
Landlord shall first offer to Tenant the right to lease the Refusal Space (the
"Refusal Right") on the following terms, conditions and procedures:
(A) Upon the occurrence of a Refusal Event, Landlord shall tender to
Tenant notice (the "Refusal Notice") of the fact of the Refusal Event and the
"Economic Terms" pursuant to which Landlord would be willing to lease the
Refusal Space to the Third Party. The Economic Terms shall only include (x) the
rentable area of the Refusal Space; (y) the Base Rent to be charged (z) the term
and commencement date of the prospective lease; (aa) the amount of tenant finish
allowance to be granted to the Third Party; (bb) the operating expense
methodology; (cc) renewal and expansion options and (dd) the location of the
Refusal Space.
(B) Tenant shall have a period of seven (7) business days from the
tender of the Refusal Notice to give notice to Landlord ("Refusal Notice
Response") of its irrevocable commitment to lease the Refusal Space upon the
Economic Terms and upon the other terms and conditions of the Lease except that
the term of the lease for the Refusal Space shall be the greater of (i) the time
remaining in the Primary Lease Term or any Option Term or (ii) the term set
forth in the Refusal Notice. Tenant's failure to timely tender the Refusal
Notice Response shall irrevocably be deemed a rejection of the Refusal Space.
(C) If Tenant rejects or is deemed to have rejected the Refusal Space,
Landlord may (i) lease the Refusal Space to the Third Party on the Economic
Terms and any other non Economic Terms and (ii) Tenant shall have no further
right to lease the Refusal Space.
(D) The Refusal Right is expressly subordinate to (i) the currently
existing rights of MediaOne Group, Inc., a Delaware corporation to lease the
Refusal Space pursuant to a lease by and between Landlord and MediaOne Group,
Inc. and (ii) the currently existing rights of Hitachi Software Global
Technology Ltd., a Colorado corporation to lease the Refusal Space pursuant to a
lease by and between Landlord and Hitachi Software Global Technology, Ltd.
(E) Tenant shall only be afforded the Refusal Right if Tenant is not
in default beyond any applicable cure periods of its obligations under the Lease
at the time of the Refusal Event.
(F) If Tenant timely exercises the Refusal Right, Tenant shall execute
and deliver to Landlord all documentation reasonably requested by Landlord.
3
40
3. Termination Right. In the event (i) the "final bid" for the construction
of the Improvements is greater than 108% of the "Requisite Technology
Preliminary Construction Bid Summary" provided by Sands Construction, Inc. dated
November 3, 1998, (ii) the increase in cost is not attributed to a change in the
scope of work originally bid by Sands Construction, Inc. and (iii) Tenant
reimburses Landlord for fifty percent (50%) of its actual cost and expense as of
the date of termination, for design fees owed in conjunction with the Premises,
then in that event the Tenant upon written notice to Landlord, within five (5)
days after receipt of the final bid, shall have the right to terminate this
Lease.
4. 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;
4
41
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).
5. 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.
6. 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.
5
42
7. 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.
8. 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.
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/ XXXXXXX XXXXX
-----------------------------------
Its: President/CEO
-----------------------------------
6
43
EXHIBIT A
[WESTMOOR TECH. PARK BLDG. FOUR(4)-LEVEL TWO(2) FLOOR PLAN]
44
EXHIBIT A-1
METHODOLOGY OF CALCULATION
Building Rentable Area:
Gross Building Area less penetrations through second floor per Exhibit
A-1b.
Useable Area:
Rentable Area less common areas (crosshatched) per Exhibits A-1a and
A-1b.
Multiplier:
The factor established by dividing the rentable area by the useable
area on a floor-by-floor basis.
Tenant's Rentable Area:
Area (useable) occupied by Tenant measured as follows:
o To exterior of exterior wall line at exterior walls
o To Tenant side of all interior or common area walls
o To centerline of adjoining tenant demising wall multiplied by the
floor multiplier
A-1-1
45
EXHIBIT A-1A
[WESTMOOR TECH. PARK LEVEL ONE(1)-BUILDING THREE(3) & FOUR(4) FLOOR PLAN]
46
EXHIBIT A-1B
[WESTMOOR TECH. PARK LEVEL TWO(2)-BUILDING THREE(3) & FOUR(4) FLOOR PLAN]
47
EXHIBIT B
LEGAL DESCRIPTION
Building Four
Xxx 0, Xxxxx 0, Xxxxxxxx Xxxxxxxxxx Xxxx, Xxxx of Westminster, County of
Jefferson, State of Colorado.
B-1
48
EXHIBIT C
ESTOPPEL AND COMMENCEMENT DATE CERTIFICATE
THIS ESTOPPEL AND COMMENCEMENT DATE CERTIFICATE ("Certificate") is executed
this ____ day of ____________, 19____ 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 December , 1998, for the
premises commonly known as _____________________________, Colorado ___________
("Premises").
WITNESSETH
WHEREAS, the parties desire to reaffirm and/or amend and certify to certain
provisions of the Lease; and
WHEREAS, the parties desire that the matters set forth herein be conclusive
and binding on the parties.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Lease Commencement Date is deemed and agreed to be ___________,
19_____, and the Lease Termination Date is agreed and deemed to be
________________, 19____, unless sooner terminated, as provided therein.
2. Tenant's first installment of Base Rent in the amount of
________________________ ______________________ Dollars ($_____________) for the
period of ___________ (is due on) (was paid on) _________________, 19___.
3. Tenant's first installment of Tenant's Pro Rata Share of Operating
Expenses in the amount of ______________________________________ Dollars
($______________) (is due on) (was paid on) ________________, 19____.
4. On _____________, 19____, Tenant deposited with Landlord a security
deposit in the form of __________________, in the amount of
_____________________________________ Dollars ($_____________).
5. By execution hereof, Tenant acknowledges and agrees that all
improvements or other work required of Landlord has been satisfactorily
performed and Tenant hereby accepts the Premises in full compliance with the
terms and conditions of the Lease.
6. Except as may be amended herein, all terms and conditions of the Lease
shall continue in full force and effect and are hereby republished, ratified and
reaffirmed in their entirety.
7. This Certificate shall be binding upon and may be relied upon by the
parties hereto and their respective legal representatives, successors and
assigns.
C-1
49
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
___________, 19____, by ____________________________________ as
______________________ of Westfield Development Company, Inc., as a Colorado
corporation as general partner of Westmoor Business Park Ltd., LLLP, a Colorado
limited liability limited partnership.
Witness my hand and official seal.
My commission expires: _________________________________.
----------------------------------------
Notary Public
C-2
50
STATE OF ______________________ )
)
COUNTY OF _____________________ )
The foregoing instrument was acknowledged before me this ______ day of
___________, 19____, by _______________________________ as
_____________________________________ of ___________________________.
Witness my hand and official seal.
My commission expires: _________________________________.
----------------------------------------------
Notary Public
C-3
51
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 Xxxx
Landlord's Representative: Xxxxxx Xxxxx/Xxxx Xxxxx
Submission Date: December 18, 1998
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: $20.65 (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
52
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 5%,
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 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
53
(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
54
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 23rd day of December, 1998.
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/ XXXXXXX XXXXX
--------------------------------
Its: PRESIDENT/CEO
--------------------------------
D-4
55
EXHIBIT X-0
XXXXXXXXX 0 XXX 0
XXXXXXXX XXXX & SHELL WORK
SITE
All on and off site improvements generally including landscaping, irrigation,
sidewalks, paving, lighting, utilities, curb and gutter, monument signage and
striping at Landlord's discretion.
BUILDING
o Foundations
o Underground utilities (wet and dry) to a single termination point
for each utility
o Building structure including concrete slabs
o Exterior walls and building "skin" including windows, exterior
doors, insulation, and finish material
Note: Tenant side of exterior walls will be completed (drywalled,
taped, sanded, and painted) as part of the tenant finish
allowance during tenant finish.
o Roof insulation and roofing
o Mechanical equipment screen sufficient in size to accommodate
shell mechanical Equipment
o Common Areas including:
Toilet Core
Lobby
Elevators
Main Electrical Room
Fire Sprinkler Riser Room
Telecommunications Room
Stairways
Showers
Public Corridors
Note: Tenant side of common area spaces will be exposed studs or
structural walls. All finishes will be done under the tenant
finish allowance during tenant finish construction.
MECHANICAL
Roof mounted gas fired HVAC equipment including all vertical and horizontal duct
distribution systems to variable air volume (VAV) boxes located throughout the
floor more particularly described in this section.
Note: VAV boxes will be powered and metered under the tenant finish allowance
during tenant finish construction.
ELECTRICAL
Main service to a central electrical room as described in this section. All
distribution to tenant spaces beyond the main electrical room will be done under
the tenant finish allowance during tenant finish.
PLUMBING
For all common areas and future tenant areas as described in this section.
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FIRE
Shell only sprinkler and alarm system more particularly described in this
section.
Note: Sprinkler heads will be installed pointing up into joist space at time
of shell. During tenant finish, under Tenant Finish Allowance, heads
will be "turned down" and lowered to finished ceiling height. Heads
will be relocated or additional heads added as required by code for the
tenant finish area again under the tenant finish allowance. Fire
protection shall be in compliance with NFPA 13, the owner's insurance
carrier, and the jurisdictional authority.
FIRE ALARM SYSTEM
As required for shell and common area work only.
The fire alarm system will be a fully addressable system meeting the
requirements of the Uniform Fire Code, The Americans with Disabilities Act
(ADA), UI 1971, and the Westminster Fire Department. Manual pull stations will
be located to meet National Fire Protection Association (NFPA) requirements and
horn/strobe units will be located to provide complete coverage in terms of both
the visual and audible components.
Detection will be required for special functions in selected areas and in
non-rated corridor-type open office areas. However, full smoke detection for the
building is not required by the 1991 National Fire Code or by the Westminster
Fire Department. Review of the tenant exiting paths will be required by the
Westminster Fire Xxxxxxxx.
The fire alarm system will be installed for core and shell common areas only.
All fire alarm systems required for tenant finish will be installed during
tenant finish under that allowance.
MECHANICAL SYSTEM
AIR DISTRIBUTION
There will be two, 75-ton rooftop units above each of two risers for a total of
four rooftop units and 240 tons. The units will be located near the toilet core
and arranged so that two units will serve the second floor and the other two the
first floor. The units will have DX refrigeration, a gas-fired heating section,
and full economizer and VAV controls. The roof curbs will be mounted on an 8"
concrete slab for sound attenuation.
Fan powered parallel flow type VAV boxes with electric heating coils will serve
perimeter zones and cooling only pinch down boxes will serve interior spaces. On
the average there will be one zone box for every 1,600 SF. Typically, each
exposure will have two fan-powered boxes at approximately 1,200 SF each, and the
interior spaces will have a box for approximately 2,000 SF each.
The riser and floor ductwork shall be medium pressure rectangular sheet metal
with 1" liner for a distance of 20 feet from the riser (1/2" beyond). The
ductwork on each floor will extend from the units or risers to a central spine
duct that runs in the middle of the floorplate parallel to the long dimension of
the building. Insulated sheet metal branches shall be connected to each fan
terminal unit and VAV box from the main under core and shell. All zone boxes
will be ducted to square ceiling diffusers during tenant finish.
EXHAUST SYSTEMS
The toilet rooms shall have a common exhaust riser with branch ductwork to each
toilet room and janitors closet. A centrifugal exhaust fan shall be mounted on
the roof and connected to the riser. Each toilet room will be ventilated to 2
CFM/SF.
The elevator machine room shall have an exhaust fan installed to dissipate
excessive heat during elevator operation.
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HEATING
The gas-fired heating section inside each rooftop unit will be used for morning
warm-up and overnight heating.
Each perimeter fan terminal will be provided with an electric heating coil to
allow for zone heating when required. (Connected to power source under tenant
finish.)
CONTROLS
The proposed control system shall be Direct Digital Controls (DDC) and shall
communicate with the rooftop units, fan terminal units and VAV boxes. The
control system will provide the capability to monitor each VAV box and provide
for off-hour HVAC.
ELECTRICAL SYSTEMS DESIGN CRITERIA
POWER
The basis for the design of the electrical distribution system is a load density
of 30 xxxxx/SF with the following breakdown:
Mechanical Systems (including elevators) 18.0 W/SF
Lighting 2.0 W/SF
General Purpose Power 8.0 W/SF
Spare 2.0 W/SF
---------
TOTAL 30.0 W/SF
A 400 amp, 480 volt switch is dedicated for Tenant use for each half floor, two
spare 800 amp, 480 volt switches are identified in the main distribution center
for future manufacturing or computer lab loads.
LIGHTING
The footcandle levels indicated below are the high-end maintained levels based
on recommendations by the Illuminating Engineering Society (IS):
Lobby 20 footcandles
Storage and Utility Rooms 10 footcandles
Corridors/Stairwells 30 footcandles
Restrooms 50 footcandles
Site Parking 2 to 3 footcandles (1 footcandle minimum at edges)
ELECTRICAL SYSTEM
POWER DISTRIBUTION
The distribution system for this building will initiate from a 4,000 amp,
480/277 volt main distribution switchboard located in the main electrical room.
The service will be fed from an exterior pad mounted Public Service Company
transformer.
The major mechanical equipment will be fed from the main switchboard located in
the main electrical room.
The tenant will need to provide and install an energy demand meter to monitor
their energy usage. The Tenant shall also install a data connection between the
demand meter and the building management system.
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All fan powered boxes shall be connected to the tenant panel by the Tenant
during the tenant finish phase.
The Tenant will be responsible for all electrical distribution equipment
starting at the 400 amp, 480 volt switch in the main electrical room.
LIGHTING
Main entry lobby lighting shall consist of fluorescent downlights with clear
alzak reflectors.
Elevator lobby lighting on all floors shall consist of fluorescent downlights
with clear alzak reflectors on each floor.
Typical floor and common corridor lighting shall consist of 2 x 4, T-8 three
lamp fluorescent troffers with an acrylic lens, on 8' centers, or building
standard equivalent.
Back-of-house equipment rooms shall be illuminated with 2-lamp, T-8, fluorescent
strips.
Typical toilet room lighting shall consist of fluorescent downlight fixtures
with clear alzak reflectors.
Loading dock lighting shall consist of metal halide wall paks.
Ground mounted uplights shall be provided for the exterior of the building.
Exterior parking lot lighting shall consist of single or double head, 1000 w
metal halide shoe box fixtures on 55' high poles mounted on 24" diameter,
concrete pole bases.
Power and lighting for site monument signs shall be provided as necessary.
Code required exit signage for the common areas is included.
Stairwells shall be illuminated with 2-lamp, T-8, fluorescent wraparound
fixtures, one per landing. All stairwell fixtures shall have battery packs to
provide minimum egress and emergency illumination.
Emergency lighting shall consist of battery packs integral to some fluorescent
luminaries and all exit signs. Battery packs will be utilized in a density
sufficient to provide one footcandle of even illumination along any egress path
in the event of a power outage. In addition, battery packs will be supplied for
luminaries in electrical rooms, mechanical rooms, and public restrooms to
provide safe egress from those spaces.
COMMUNICATION RACEWAYS
Incoming communications cable from U S West and conduit capacity for other
providers into the main telecom room on the first floor will be pulled in 4"
conduits run from a telephone pedestal located on the perimeter of the site. In
addition to the incoming conduits, two, 4" conduits shall be installed between
each building. Additional conduit required to cross a tenant space to link the
telecommunications room to a future unfinished space will be the responsibility
of the Landlord. The Tenant shall be responsible for all telecommunication work
from the main telephone room on. Sleeves will be provided in the second floor
over the telephone room for the tenants use.
CARD ACCESS SYSTEM
A card access system will be provided at the main entry and each of two
stairwell entrances on north side.
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PROPOSED PLUMBING SYSTEM
WASTE AND VENT SYSTEM
A 6" sanitary sewer service shall be provided to the building. Conventional
waste and vent system with stubouts for future connection in core area. Tenant
stacks are also provided at two locations per floor. The pipe material shall be
cast iron hub and spigot below floor and cast iron no hub above floor. Future
connection sizes shall be 4" for waste and 3" for vent.
DOMESTIC WATER
A 1 1/2" water meter with 2" service into the building shall be provided. A
reduced pressure backflow preventer and PRV station, if required, shall be
provided at water entrance into the building. Domestic water shall be routed to
all fixtures. Two tenant risers with a 1" stubout provided at each riser on
every floor located with the tenant stacks. Additionally, a 1" stubout shall be
provided at the toilet core. Four sillcocks shall be provided. Pipe material to
be type "L" copper with 95-5 tin antimony solder.
DOMESTIC HOT WATER
A gas fired 75 gallon hot water heater shall be provided to serve the needs of
the toilet core and showers.
PLUMBING FIXTURES
Fixtures shall be provided at core area of building. Water closets shall be of
the flush, tank floor set type with elongated bowl. Fixtures shall be ADA
accessible as required.
SHOWER FACILITIES
The building will contain public shower stalls with dressing areas divided
equally between men and women, located near or adjacent to the toilet rooms.
STORM
Roof drainage by leader heads and downspouts with overflow scuppers.
NATURAL GAS
Natural gas shall be extended from the gas meter to the rooftop units. Gas pipe
shall be black steel (threaded) for piping up to 2" in size. Piping 2 1/2" and
larger shall be butt weld black steel. All piping exposed to outdoor conditions
shall be painted.
LIGHTING
Main entry lobby lighting shall consist of 175 watt metal halide downlights with
clear alzak reflectors and decorate wall sconces.
Elevator lobby lighting on all floors shall consist of downlights with clear
alzak reflectors on each floor.
Typical floor and common corridor lighting shall consist of 2 x 4, three lamp
parabolic fluorescent troffers with 8' centers, or building standard equivalent.
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Back-of-house equipment rooms shall be illuminated with 2-lamp, T-8, fluorescent
strips.
Typical toilet room lighting shall consist of downlight fixtures with clear
alzak reflectors.
Exterior vestibule lighting shall consist of 8' diameter, 100W metal halide,
clear alzak downlighting.
Loading dock lighting shall consist of metal halide wall paks.
Low profile bollard style lighting shall be provided between the buildings.
Exterior parking lot lighting shall consist of single or double head, metal
halide shoe box fixtures on tapered steel poles mounted on 24" diameter, 8' deep
concrete pole bases.
Power and lighting for two site monument signs shall be provided.
Code required exit signage for the common areas is included.
Stairwells shall be illuminated with 2-lamp, T-8, fluorescent wraparound
fixtures, one per landing. All stairwell fixtures shall have battery packs to
provide minimum egress and emergency illumination.
Emergency lighting shall consist of battery packs integral to some fluorescent
luminaries and all exit signs. Battery packs will be utilized in a density
sufficient to provide one footcandle of even illumination along any egress path
in the event of a power outage. In addition, battery packs will be supplied for
luminaries in electrical rooms, mechanical rooms, and public restrooms to
provide safe egress from those spaces.
FIRE ALARM SYSTEM
The fire alarm system will be a fully addressable system meeting the
requirements of the Uniform Fire Code, The American's with Disabilities Act
(ADA), UI 1971, and the Westminster Fire Department. Manual pull stations will
be located to meet National Fire Protection Association (NFPA) requirements and
horn/strobe units will be located to provide complete coverage in terms of both
the visual and audible components.
Detection may be required for special functions in selected areas and in
non-rated corridor-type open office areas. However, full smoke detection for the
building is not required by the 1991 National Fire Code or by the Westminster
Fire Department.
COMMUNICATION RACEWAYS
Incoming communications cable from U S West and conduit capacity for other
providers into the main telecom room on the first floor will be pulled in 4"
conduits run from a telephone pedestal located on the perimeter of the site. In
addition to the incoming conduits, two, 4" conduits shall be installed between
each building. Additional conduit required to cross a tenant space to link the
telecommunications room to a future unfinished space will be the responsibility
of the landlord. The tenant shall be responsible for all telecommunication work
from the main telephone room on. Sleeves will be provided in the second floor
over the telephone room for the tenants use.
CARD ACCESS SYSTEM
A card access system will be provided at the main entry and each of two
stairwell entrances on the north side.
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PLUMBING SYSTEM
WASTE AND VENT SYSTEM
A 6" sanitary sewer service shall be provided to the building. Conventional
waste and vent system with stubouts for future connection in core area. Tenant
stacks are also provided at two locations per floor. The pipe material shall be
cast iron hub and spigot below floor and cast iron no hub above floor. Future
connection sizes shall be 4" for waste and 3" for vent.
DOMESTIC WATER
A 1 1/2" water meter with 2" service into the building shall be provided. A
reduced pressure backflow preventer and PRV station, if required, shall be
provided at water entrance into the building. Domestic water shall be routed to
all fixtures. Two tenant risers with a 1" stubout provided at each riser on
every floor located with the tenant stacks. Additionally, a 1" stubout shall be
provided at the toilet core. Four sillcocks shall be provided. Pipe material to
be type "L" copper with 95-5 tin antimony solder.
DOMESTIC HOT WATER
A gas fired 75 gallon hot water heater shall be provided to serve the needs of
the toilet core and showers.
PLUMBING FIXTURES
Fixtures shall be provided at core area of building. Water closets shall be of
the flush, tank floor set type with elongated bowl. Fixtures shall be ADA
accessible as required.
SHOWER FACILITIES
The building will contain public shower stalls with dressing areas divided
equally between men and women, located near or adjacent to the toilet rooms.
STORM
Roof drainage by leader heads and downspouts with overflow scuppers.
NATURAL GAS
Natural gas shall be extended from the gas meter to the rooftop units. Gas pipe
shall be black steel (threaded) for piping up to 2" in size. Piping 2 1/2" and
larger shall ve butt weld black steel. All piping exposed to outdoor conditions
shall be painted.
PROPOSED FIRE PROTECTION SYSTEM
The fire protection system shall be in compliance with NFPA 13 and 231, the
owners insurance carrier and the jurisdictional authority. Pipe material shall
be grooved or threaded; no segmental welded fittings shall be allowed. Sprinkler
head spacing shall be 133 SF per head maximum, system shall be designed to allow
for one additional head per installed head (total two). Sprinkler heads shall be
installed in a uniform manner with a 3" tolerance to center of tile in tenant
areas and centered in common areas. Sprinkler heads shall be mounted tight at
gypboard and common areas. Sprinkler heads shall be chrome recessed type in the
lobby and all gypboard areas and chrome semi-recessed in all other areas with
finished ceilings. A 6" service with backflow prevention device shall be
provided.
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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.
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8. 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 seventy-five (75) card keys without deposit,
and for any additional card keys requested by Tenant, Tenant shall deposit with
Landlord a reasonable sum not to exceed $25.00 for each card key issued to
Tenant and Tenant's employees, as a deposit to be refunded to Tenant upon return
of the applicable card key.
13. No window shades, blinds, screens, draperies or other window coverings
will be attached or detached by Tenant without Landlord's prior written consent.
Tenant agrees to abide by Landlord's rules with respect to maintaining uniform
curtains, draperies and/or linings at all windows and hallways.
14. No awnings shall be placed over any window.
15. If Tenant desires telegraphic, telephonic or other electric
connections, Landlord or Landlord's agents will direct the electricians as to
where and how the wires may be introduced and without such directions, no boring
or cutting for wires will be permitted. Any such installation and connection
shall be made at Tenant's expense.
16. Tenant shall not install or operate any steam or gas engine or boiler,
or carry on any mechanical operation in the Premises. The use of oil, gas or
inflammable liquids for heating, lighting or any other purpose is expressly
prohibited. Explosives or other articles deemed extra hazardous shall not be
brought into the Building Complex.
17. Any painting or decorating as may be agreed to be done by and at the
expense of Landlord shall be done during regular weekday working hours. Should
Tenant desire such work on Saturdays, Sundays, holidays or outside of regular
working hours, Tenant shall pay for the extra cost thereof. Tenant shall carry
out Tenant's repair, maintenance, alterations and improvements in the Premises
only during times agreed to in advance by Landlord and in a manner which will
not interfere with the rights of the other tenants in the Building or Building
Complex.
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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 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,
65
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.
66
EXHIBIT F
GUARANTY OF LEASE
INTENTIONALLY DELETED
67
EXHIBIT G
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") dated this _____ day of December,
1998, 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 ________________________, 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.
68
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.
69
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: _______________________________
_______________________________
_______________________________
Attn:__________________________
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.
70
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/ XXXXXXX XXXXX
---------------------------------
Its: PRESIDENT/CEO
---------------------------------
71
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE ("Amendment") is made this 12th day of August,
1999, by and between WESTMOOR BUSINESS PARK LTD., LLLP, a Colorado limited
liability limited partnership ("Landlord") and REQUISITE TECHNOLOGY, INC., a
Delaware corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Building Lease
dated December 23, 1998 ("Original Lease"); and
WHEREAS, pursuant to the Original Lease, Tenant leased 23,985 rentable
square feet of space, commonly known as Suite 205 and more particularly
identified in the Original Lease ("Original Premises");
WHEREAS, Tenant and Landlord wish to modify certain terms and
provisions of the Original Lease as more fully set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereby amend the Original Lease as follows:
1. Definitions. All capitalized terms used herein shall have the same
meaning as set forth in the Original Lease, unless otherwise defined herein. The
Original Lease, together with this Amendment, is hereinafter referred to
collectively as the "Lease".
2. Rent Commencement Date. The Rent Commencement Date shall be March
19, 1999.
3. Base Rent. Pursuant to Paragraph 5(b) of the Work Letter Agreement
attached as Exhibit D to the Lease, Tenant has elected to increase the amount of
the Tenant Finish Allowance by $2.00 per rentable square foot and Landlord has
agreed to give Tenant an additional Tenant Finish Allowance in the amount of
$0.60 per rentable square foot (i.e., aggregating an additional Tenant Finish
Allowance in the amount of $62,361.00) ("TI Increase"). The TI Increase shall be
amortized over the remaining Primary Lease Term. The amortization on the TI
Increase shall commence July 1, 1999.
4. Expansion. Tenant has exercised Tenant's Refusal Right with respect
to the Refusal Space, consisting of 9,040 rentable
72
square feet of space located adjacent to the Original Premises and more
particularly identified on Exhibit A attached hereto and incorporated herein by
this reference ("Additional Space"). The Additional Space, together with the
Original Premises, aggregating 33,025 rentable square feet, is leased by Tenant
on the following terms and conditions:
(a) The Additional Space is leased in its "as is," "where is,"
existing condition. Landlord shall have no obligation to make any improvements
whatsoever in the Additional Space.
(b) Notwithstanding the foregoing, Landlord shall give Tenant
a tenant finish allowance for the Additional Space in the amount of $22.00 per
rentable square foot of the Additional Space (i.e. $198,880.00) ("Additional
Space Allowance"). The Additional Space Allowance shall be paid by Landlord to
Tenant on the same terms and conditions as provided in the Lease with respect
to payment by Landlord of the Tenant Finish allowance.
(c) On December 1, 1999, Tenant shall commence paying Base
Rent on the Additional Space as hereinafter set forth in an amount of $13.80 per
rentable square foot of the Additional Space for the first 36 months and $15.04
per rentable square foot of the Additional Space for the balance of the Primary
Lease Term, as hereinafter defined.
5. Term. The Primary Lease Term with respect to the Original Premises
and the Additional Space (collectively referred to as the "Premises") shall
expire on August 31, 2004 ("Termination Date"). The period between the
Commencement Date of the Original Premises and the Termination Date is referred
to as the "Primary Lease Term").
2
73
6. Base Rent. Commencing July 1, 1999 and continuing thereafter during
the Primary Lease Term, Tenant shall pay to Landlord Base Rent as follows:
Period Annual Base Rent Monthly Base Rent Rate/RSF
------ ---------------- ----------------- --------
July 1, 1999 - $323,583.48 $26,965.29 13.4911(1)
November 30, 1999
December 1, 1999 - $448,342.68 $37,361.89 13.5759(2)
May 31, 2002
June 1, 2002 - $475,925.40 $39,660.45 14.4111(2)
November 30, 2002
December 1, 2002 - $487,127.76 $40,593.98 14.7503(2)
August 31, 2004
7. Pro Rata Share. From and after December 1, 1999, Tenant's Pro Rata
Share shall be 33.73%.
8. Conflict. In the event of any conflict or inconsistency between the
terms of the Original Lease and the terms of this Amendment, the terms of this
Amendment shall govern and control. In all other respects, the terms and
provisions of the Original Lease are hereby republished, ratified and reaffirmed
in their entirety.
--------
(1) Rental figure includes Base Rent as set forth in the Original Lease for the
Original Premises plus amortized portion of TI Increase in the amount of
$15,376.20 per annum.
(2) Rental figure includes Base Rent as set forth in the Original Lease for the
Original Premises plus amortized portion of TI Increase plus Base Rent for
the Additional Space.
3
74
IN WITNESS WHEREOF, the parties hereto have executed this Amendment the
day and year first written above.
LANDLORD:
WESTMOOR BUSINESS PARK LTD., LLLP, a
Colorado limited liability limited
partnership
By: Westfield Development Company, Inc.,
a Colorado corporation, General
Partner
By: /s/ XXXXXXX XXXXXXXXXX
-------------------------------
Title: President
-----------------------------
TENANT:
REQUISITE TECHNOLOGY, INC., a
Delaware corporation
By: /s/ X X XXXXXXXXXX
-------------------------------------
Title: Vice President & Chief Financial
----------------------------------
Officer
----------------------------------
4
75
ESTOPPEL AND COMMENCEMENT DATE CERTIFICATE
THIS ESTOPPEL AND COMMENCEMENT DATE CERTIFICATE ("Certificate") is
executed this 12th day of August, 1999 by WESTMOOR BUSINESS PARK LTD., LLP, 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 dated December 23, 1998, as
subsequently amended (the "Lease"), for the premises commonly known as 00000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxx.
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 to be March 19, 1999,
and the Lease Termination Date is agreed to be August 31, 2004, unless sooner
terminated, as provided therein.
2. Tenant's first installment of Base Rent in the amount of Ten
Thousand Six Hundred Ninety and 50/100 Dollars ($10,690.50) for the period of
May 12, 1999 through May 31, 1999 was paid on May 11, 1999.
3. Tenant's first installment of Tenant's Pro Rata Share of
Operating Expenses in the amount of Seven Thousand Four Hundred Fourteen and
72/100 Dollars ($7,414.72) for the period of March 12, 1999 through March 31,
1999 was paid on March 30, 1999.
4. On January 11, 1999, Tenant deposited with Landlord a
security deposit in the amount of Twenty Five Thousand Six Hundred Eighty Three
and 00/100 Dollars ($25,683.00).
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.
IN WITNESS WHEREOF, the parties have executed this certificate as of
the day and year first above written.
76
LANDLORD:
WESTMOOR BUSINESS PARK LTD., LLLP,
a Colorado limited liability limited
partnership
By: Westfield Development Company, Inc.,
a Colorado corporation, general
partner
By: /s/ XXXXXXX XXXXXXXXXX
--------------------------------
Its: President
--------------------------------
TENANT:
REQUISITE TECHNOLOGY, INC.,
a Delaware Corporation
By: /s/ X X XXXXXXXXXX
------------------------------------
Name: Vice President & Chief Financial
----------------------------------
Officer
----------------------------------
STATE OF COLORADO )
) ss
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this 12th day of
August, 1999, by Xxxxxxx XxXxxxxxxx, as 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: 2/2/03.
/s/ XXXXXXXX XXXXXX
-------------------------------
Notary Public
STATE OF COLORADO )
) ss
COUNTY OF JEFFERSON )
The foregoing instrument was acknowledged before me this 11th day of
August, 1999, by Xxxxx Xxxxxxxxxx as Vice President and Chief Financial Officer
of Requisite Technology, Inc., a Delaware corporation.
Witness my hand and official seal.
My commission expires: 2/2/03.
/s/ XXXXXXXX XXXXXX
-------------------------------
Notary Public
