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EXHIBIT 10.10
OFFICE LEASE BETWEEN
ST. XXXX PROPERTIES, INC.
AND
THE TRIZETTO GROUP
ATRIUM I
0000 X. XXXXXX XXXXX
XXXXXXXXX, XXXXXXXX
JULY 26, 1999
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TABLE OF CONTENTS
ARTICLE 1.00 BASIC LEASE TERMS...................................................................................1
1.01 Parties.............................................................................................1
1.02 Lease Premises......................................................................................1
1.03 Definition of Terms.................................................................................1
A. Building.....................................................................................1
B. Premises.....................................................................................1
C. Building Manager.............................................................................1
D. Commencement Date............................................................................1
E. Completion Date..............................................................................1
F. Termination Date.............................................................................1
G. Term.........................................................................................1
H. Base Rent....................................................................................1
I. Monthly Installments of Base Rent............................................................1
J. Tenant's Proportionate Share.................................................................1
K. Security Deposit.............................................................................1
L. Landlord's Mailing Address...................................................................1
Tenant's Mailing Address.....................................................................2
M. Normal Business Hours........................................................................2
N. State........................................................................................2
O. Parking Spaces...............................................................................2
P. Broker.......................................................................................2
Q. Permitted Use................................................................................2
R. Tenant's Representatives.....................................................................2
ARTICLE 2.00 RENT................................................................................................2
2.01 Base Rent...........................................................................................2
2.02 Operating Expenses..................................................................................2
2.03 Definition of Operating Expenses....................................................................3
2.04 Late Payment Charge.................................................................................3
2.05 Increase in Insurance Premiums......................................................................3
2.06 Security Deposit....................................................................................3
2.07 Holding Over........................................................................................4
ARTICLE 3.00 OCCUPANCY AND USE...................................................................................4
3.01 Use.................................................................................................4
3.02 Signs...............................................................................................4
3.03 Compliance with Laws, Rules and Regulations.........................................................4
3.04 Warranty of Possession..............................................................................4
3.05 Inspection..........................................................................................4
ARTICLE 4.00 UTILITIES AND SERVICE...............................................................................4
4.01 Building Services...................................................................................4
4.02 Theft or Burglary...................................................................................5
4.03 Janitorial Service..................................................................................5
4.04 Excessive Utility Consumption.......................................................................5
4.05 Window Coverage.....................................................................................5
4.06 Charge for Service..................................................................................5
ARTICLE 5.00 REPAIRS AND MAINTENANCE.............................................................................5
5.01 Landlord Repairs....................................................................................5
5.02 Tenant Repairs......................................................................................5
5.03 Request for Repairs.................................................................................5
5.04 Tenant Damages......................................................................................5
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ARTICLE 6.00 ALTERATIONS AND IMPROVEMENTS........................................................................5
6.01 Landlord Improvements...............................................................................5
6.02 Tenant Improvements.................................................................................6
ARTICLE 7.00 CASUALTY AND INSURANCE..............................................................................6
7.01 Substantial Destruction.............................................................................6
7.02 Partial Destruction.................................................................................6
7.03 Property Insurance..................................................................................6
7.04 Tenant's Insurance..................................................................................6
7.05 Waiver of Subrogation...............................................................................7
7.06 Hold Harmless.......................................................................................7
ARTICLE 8.00 CONDEMNATION........................................................................................7
8.01 Substantial Taking..................................................................................7
8.02 Partial Taking......................................................................................7
ARTICLE 9.00 ASSIGNMENT OR SUBLEASE..............................................................................7
9.01 Landlord Assignment.................................................................................7
9.02 Tenant Assignment...................................................................................7
9.03 Conditions of Assignment............................................................................9
9.04 Rights of Mortgagee.................................................................................9
9.05 Estoppel Certificates...............................................................................9
ARTICLE 10.00 LIENS..............................................................................................9
10.01 Landlord's Lien....................................................................................9
10.02 Uniform Commercial Code...........................................................................10
ARTICLE 11.00 DEFAULT AND REMEDIES..............................................................................10
11.01 Default by Tenant.................................................................................10
11.02 Remedies for Tenant's Default.....................................................................10
ARTICLE 12.00 RELOCATION........................................................................................11
12.01 Relocation Option.................................................................................11
12.02 Expenses..........................................................................................11
ARTICLE 13.00 DEFINITIONS.......................................................................................11
13.01 Abandon...........................................................................................11
13.02 Force Majeure.....................................................................................11
13.03 Building..........................................................................................11
13.04 Commencement Date.................................................................................11
13.05 Completion Date...................................................................................11
13.06 Square Feet.......................................................................................11
ARTICLE 14.00 MISCELLANEOUS.....................................................................................11
14.01 Waiver............................................................................................11
14.02 Force Majeure.....................................................................................12
14.03 Attorneys' Fees...................................................................................12
14.04 Successors........................................................................................12
14.05 Rent Tax..........................................................................................12
14.06 Captions..........................................................................................12
14.07 Notice............................................................................................12
14.08 Submission of Lease...............................................................................12
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14.09 Corporate Authority...............................................................................12
14.10 Severability......................................................................................12
14.11 Lessor's Liability................................................................................12
14.12 Indemnity.........................................................................................12
14.13 Recording.........................................................................................12
14.14 Waiver of Trial by Jury...........................................................................13
ARTICLE 15.00 AMENDMENT AND LIMITATION OF WARRANTIES............................................................13
15.01 Entire Agreement..................................................................................13
15.02 Amendment.........................................................................................13
15.03 Limitation of Warranties..........................................................................13
ARTICLE 16.00 OTHER PROVISIONS..................................................................................13
16.01 Documents Incorporated by Reference...............................................................13
ARTICLE 17.00 SIGNATURES........................................................................................13
Addendum
Exhibit A - Description of Building and Premises
Exhibit B - Provisions Relating to Construction of Tenant's Space (Finish Allowance only)
Exhibit C - Rules and Regulations
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OFFICE LEASE
ARTICLE 1.00 BASIC LEASE TERMS
1.01 PARTIES. This Lease Agreement ("Lease") dated as of April 26,
1999, is entered into by and between St. Xxxx Properties, Inc., a Delaware
Corporation, ("Landlord"), and The Trizetto Group, a Delaware corporation
("Tenant").
1.02 LEASE PREMISES. In consideration of the Rent, terms,
provisions and covenants of this Lease, Landlord leases to Tenant and Tenant
accepts from Landlord the Premises (as outlined on the plan attached hereto as
Exhibit A) located in the Building, together with the non-exclusive right to
use, in common with Landlord and others, the following portions of the Building:
the entrance foyer and lobby; the corridors and lavatories on the floor on which
the Premises are situated; and the stairways, and elevators (sometimes referred
to as the "Common Areas").
1.03 DEFINITION OF TERMS. As used in this Lease, the following
terms shall have the following meanings:
A. Building: The Building on the real property situated at 0000
Xxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx, and commonly known as
Atrium I - Denver Technological Center, containing
approximately 131,445 rentable square feet.
B. Premises: That part of the Building outlined on Exhibit A,
called Suite 310 on the third floor(s) of the Building,
containing approximately 23,610 rentable square feet,
including tenant improvements made by Landlord as part of the
Tenant Finish Buildout.
C. Building Manager: JCA Property Management, 0000 X. Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xx.
Xxx Xxxxx, or such other person as Landlord may designate from
time to time.
D. Commencement Date: October 1, 1999, unless delayed by Force
Majeure, or as otherwise delayed as provided in Exhibit "B -
Provisions Relating to Construction of Tenant's Space."
E. Completion Date: October 1, 1999, unless delayed by Force
Majeure, or as otherwise delayed as provided in Exhibit "B -
Provisions Relating to Construction of Tenant's Space."
F. Termination Date: October 31, 2004, unless sooner terminated
as provided in this Lease, or as otherwise provided in Exhibit
"B.
G. Term: A period commencing on the Commencement Date and
expiring at 11:59 p.m. local time on the Date which is the
last day of the month that is sixty-one (61) months following
the Commencement Date, unless extended or earlier terminated
as provided in this lease.
H. Base Rent: Tenant shall pay total aggregate Base Rent during
the term of the lease of Two Million Three Hundred Seventy
Thousand Three Hundred Forty-five and 63/100 Dollars
($2,370,345.63) ($19.75/rentable square foot/year).
I. Monthly Installments of Base Rent: Base Rent shall be payable
monthly, in advance, without demand, deduction or set-off at
the rate of Thirty-eight Thousand Eight Hundred Fifty-eight
and 13/100 Dollars ($38,858.13) per month ($19.75/rentable
square foot/year).
Rent Abatement. The foregoing notwithstanding, and provided
that no default (or no event which, with the passage of time
or the giving of notice or both, would constitute an event of
default under the Lease) shall have occurred under this Lease,
Base Rent for the Premises, net of operating expenses, shall
be abated for a period of one (1) month following the
Commencement Date. In the event of any default by Tenant, the
entire amount of Base Rent which was otherwise abated, as set
forth above, shall be immediately due and payable.
J. Tenant's Proportionate Share: 17.962%
K. Security Deposit: Seventy-seven Thousand Seven Hundred Sixteen
and 25/100 Dollars ($77,716.25).
L. Landlord's Mailing Address: 000 Xxxxxxxxxx Xxxxxx, Xx. Xxxx,
Xxxxxxxxx, 00000, Attention: Vice President-Asset Management.
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Tenant's Mailing Address: 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000.
M. Normal Business Hours: The hours from 6:00 a.m. to 6:00 p.m.
Monday through Friday and 8:00 a.m. to 1:00 p.m. on Saturday,
except recognized holidays.
N. State: The State of Colorado.
O. Parking Spaces: Tenant shall be entitled to the non-exclusive
use in common with Landlord and others of a maximum of
seventy-seven (77) parking spaces in the building parking
areas at no charge during the primary term of the Lease. In
addition, through June 30, 2002, Tenant may be entitled to use
additional parking spaces, in an amount to be determined by
Landlord, on a non-reserved, non-exclusive basis, in that
certain parking lot adjacent to the Building parking lot and
currently leased by Landlord and known as the "Sheplers"
parking lot, at no additional cost to Tenant. Landlord
reserves the right to strictly enforce the number of parking
spaces utilized by Tenant during the term of this Lease based
upon a parking ratio of 3.3 parking spaces per 1,000 rentable
square feet. Landlord further reserves the right to assign and
reassign, from time to time, particular parking spaces for use
by persons selected by Landlord, and to issue and implement
other rules and regulations with respect to parking spaces for
the Building, provided that Tenant's rights to the number of
parking spaces designated herein are preserved.
P. Brokers: The Venture Group, 0000 X. Xxxxxx Xxxx, Xxxxx 000,
Xxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxxx (representing
Landlord); Liberty-Greenfield, 000 00xx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000, in cooperation with Xxxxxx X. Xxxxxxx,
Inc., 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, XX
00000, Attention: Xxxxxxxxxxx X. Xxxxxx (representing Tenant).
Q. Permitted Use: General administrative offices purposes.
R. Tenant's Representatives: Tenant's employees, agents,
contractors, licensees and invitees.
ARTICLE 2.00 RENT
2.01 BASE RENT. Tenant shall pay Monthly Installments of Base Rent
in advance on the first day of each month of the Term, which amount shall be
payable to Landlord by submitting it to the Building Manager at the address
shown above. If the Commencement Date should be a date other than the first day
of a calendar month, the Monthly Installment of Base Rent shall be prorated to
the end of that calendar month. Tenant shall pay, as additional rent, all other
sums due under this Lease.
2.02 OPERATING EXPENSES. In the event Landlord's operating expenses
for the Building shall, in any calendar year during the Term, exceed the sum of
those expenses accrued during the 1999 base year ("Excess Expenses") Tenant
shall pay as additional rent Tenant's Proportionate Share of Excess Expenses. In
order to provide current payments on account of Excess Expenses Tenant shall, at
Landlord's request, pay as additional rent, an amount equal to Tenant's
Proportionate share of the Excess Expenses due for the ensuing twelve (12)
months, as estimated by Landlord from time to time, in twelve (12) equal monthly
installments, commencing on the first day of the month following the month in
which Landlord notifies Tenant of the amount. Following the close of each
calendar year, Landlord shall provide Tenant with a statement showing in
reasonable detail all computations of additional rent under this section. If
Tenant's Proportionate Share of the actual Excess Expenses for the preceding
calendar year exceeds the aggregate of the estimated monthly payments made by
Tenant for such year, Tenant shall within ten (10) days of the receipt of the
statement, pay to Landlord as additional rent an amount equal to such excess. If
such aggregate of the estimated monthly payments exceeds Tenant's Proportionate
share of the actual Excess Expenses for such calendar year, Landlord shall
credit against Tenant's next ensuing monthly installment or installments of the
rent an amount equal to such difference until the credit is exhausted. No
interest or penalties shall accrue on any amounts which Landlord is obligated to
credit to Tenant by reason of this provision. The obligations of Tenant and
Landlord to make payments or credits required by this provision shall survive
the Termination Date. Notwithstanding any other provisions in this Lease, during
the year in which the Lease terminates, Landlord, prior to the Termination Date,
shall have the option to invoice Tenant for Tenant's Proportionate share of the
Excess Expenses based upon the previous year's operating expenses. If the Lease
shall terminate on a day other than the last day of the calendar year, the
amount of any additional rent payable by Tenant applicable to the year in which
such termination shall occur shall be pro rated on the ratio that the number of
days from the commencement of the calendar year to and including the Termination
Date bears to 365.
Each annual statement given by Landlord or the Building Manager pursuant to this
section shall be conclusive and binding upon Tenant unless within ninety (90)
days after receipt of such statement Tenant shall notify Landlord that it
disputes the correctness of the statement, specifying the particular respects in
which it is claimed to be incorrect. If such dispute shall not have been settled
by agreement, then, pending the legal determination of such dispute by a later
agreement or litigation, Tenant shall pay additional rent in accordance with
such statement and such payment shall be without prejudice to Tenant's
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position. If the dispute shall be determined in Tenant's favor, Landlord shall
forthwith credit to Tenant the amount of Tenant's overpayment of additional rent
resulting from compliance with Landlord's statement. Landlord shall grant
Tenant, at Tenant's expense, reasonable access to Landlord's books and records
for the purpose of verifying the Excess Expenses.
If during any calendar year of this Lease, the occupancy of the Building
averages less than one hundred percent (100%), it is agreed that the Operating
Expenses that vary depending upon occupancy shall be computed as though the
Building had been 95% occupied for such calendar year. If Landlord recovers in
excess of 100% of its Operating Expenses that vary depending upon occupancy
during any calendar year of this Lease, Landlord shall credit against Tenant's
next ensuing monthly installment or installments of the rent an amount equal to
Tenant's Proportionate Share of such excess until the credit is exhausted, or if
the term of the Lease has expired refund to the Tenant the Tenant's
Proportionate Share of such excess.
2.03 DEFINITION OF OPERATING EXPENSES. The term "Operating
Expenses" includes all expenses paid or incurred by Landlord or on Landlord's
behalf with respect to the management, repair, operation and maintenance of the
Building of which the Premises are a part including, but not limited to, the
following: (1) salaries, wages and benefits of employees of Landlord engaged in
the management, repair, operation and maintenance of the Building; (2) payroll
taxes, workmen's compensation, uniforms and related expenses for such employees;
(3) the cost of all charges for oil, gas, steam, electricity, any alternate
source of energy, heat, ventilation, air-conditioning, water, sewers and other
utilities furnished to the Building (including the parking areas, Common Areas
and leased areas thereof), together with any taxes on such utilities; (4) the
cost of painting non-tenant space; (5) the cost of all charges for insurance
Landlord is required to pay or deems necessary to pay, including public
liability insurance, with regard to the Building and the maintenance or
operation thereof; (6) the cost of all supplies (including cleaning supplies),
tools, materials and equipment, the rental thereof and sales and other taxes
thereon; (7) depreciation of hand tools and other movable equipment used in the
repair, operation and maintenance of the Building; (8) the cost of all charges
for window and other cleaning and janitorial, snow and ice removal, and security
services; (9) charges of independent contractors; (10) repairs and replacements
made by Landlord at its expense; (11) exterior and interior landscaping and pest
control; (12) alterations and improvements to the Building made by reason of the
laws and requirements of any public authorities or the requirements of insurance
bodies; (13) management fees or, if no managing agent is employed by Landlord, a
sum in lieu thereof which is not in excess of the then prevailing rates for
management fees of other first class office buildings in the area in which the
Building is located; (14) the cost of any capital improvements or additions to
the Building and of any machinery or equipment installed in the Building which
are made or become operational, as the case may be, after the Commencement Date
and which the effect of reducing the expenses which otherwise would be included
in Operating Expenses to the extent of the lesser of (A) such cost, as
reasonably amortized by Landlord with interest on the unamortized amount at the
prime rate then generally available in the state, or (B) the amount of such
reduction in Operating Expenses; (15) reasonable legal, accounting and other
professional fees incurred in connection with the operation, maintenance and
management of the Building; (16) all other expenses or charges which would
generally be regarded as operating and maintenance expenses which would
reasonably be amortized over a period not to exceed five (5) years; (17) all
real property taxes and installments of special assessments, including dues and
assessments by means of deed restrictions and/or owners' associations which
accrue against the Building during the term of this Lease; and (18) all other
charges properly allocable to the repair, operation and maintenance of the
Building in accordance with generally accepted accounting principles. The term
operating Expenses does not include the following: casualty; income and
franchise taxes of Landlord, expenses incurred in leasing to or procuring of
leases, leasing commissions, advertising expenses and expenses for renovating
space for all tenants other than Tenant; interest or principal payments on any
mortgage or other indebtedness of Landlord; compensation paid to any employee of
Landlord above the grade of property manager; any depreciation allowance or
expense (except as provided above); or those operating expenses which are the
responsibility of Tenant.
2.04 LATE PAYMENT CHARGE. Other remedies for nonpayment of rent
notwithstanding, if any part of the rent is not paid within ten (10) days after
it is due, Tenant shall pay Landlord a late payment charge of five percent (5%)
on the amount due from its due date until paid and shall become immediately due
and payable in addition to any other amounts owed under this Lease.
2.05 INCREASE IN INSURANCE PREMIUMS. If an increase in any
insurance premiums paid by Landlord for the Building is caused by Tenant's use
of the Premises in a manner other than as set forth in section 1.03, or if
Tenant vacates the Premises and causes an increase in such premiums, then Tenant
shall pay as additional rent the amount of such increase to Landlord.
2.06 SECURITY DEPOSIT. The security deposit set forth in section
1.03 shall be held by Landlord for the performance of Tenant's covenants and
obligations under this Lease, it being expressly understood that the security
deposit shall not be considered an advance payment of rental or a measure of
Tenant's damage in case of default by Tenant. Upon the occurrence of any event
of default by Tenant or breach by Tenant of Tenant's covenants under this Lease,
Landlord may, from time to time, without prejudice to any other remedy, use the
security deposit to the extent necessary to make good any arrears of rent, or to
repair any damage or injury, or pay any expense or liability incurred by
Landlord as a result of the event of default or breach of covenant, and any
remaining balance of the security deposit shall be returned by Landlord to
Tenant upon termination of this Lease. If any portion of the security deposit is
so used or applied, Tenant shall
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upon ten (10) days written notice from Landlord, deposit with Landlord by cash
or cashier's check an amount sufficient to restore the security deposit to its
original amount.
2.07 HOLDING OVER. In the event that Tenant does not vacate the
Premises upon the expiration or termination of this Lease, Tenant shall be a
tenant at will for the hold over period and all of the terms and provisions of
this Lease shall be applicable during that period, except that Tenant shall pay
Landlord as base rental for the period of such hold over an amount equal to two
(2) times the Base Rent which would have been payable by Tenant had the hold
over period been a part of the original term of this Lease. If Tenant remains in
possession of the Premises after the termination of the Lease, Tenant agrees to
vacate and deliver the Premises to Landlord upon Tenant's receipt of notice from
Landlord to vacate. The rent payable during the hold over period shall be
payable to Landlord upon demand. No holding over by Tenant, with or without the
consent of Landlord, shall operate to extend the Term.
ARTICLE 3.00 OCCUPANCY AND USE
3.01 USE. Tenant warrants and represents to Landlord that the
Premises shall be used and occupied only for the purpose as set forth in section
1.03. Tenant shall occupy the Premises, conduct its business and control the
Tenant's Representatives in such a manner as is lawful, reputable and will not
create a nuisance. Tenant shall not permit any operation which emits any odor or
matter which intrudes into other portions of the Building, use any apparatus or
machine which makes undue noise or causes vibration in any portion of the
Building or otherwise interfere with, annoy or disturb any other tenant in its
normal business operations or Landlord in its management of the Building. Tenant
shall neither permit any waste on the Premises nor allow the Premises to be used
in any way which would, in the opinion of Landlord be extra-hazardous on account
of fire or which would in any way increase or render void the fire insurance on
the Building.
3.02 SIGNS. No sign of any type or description shall be erected,
placed or painted in or about the Premises or Building except those signs
submitted to Landlord in writing and approved by Landlord in writing, and which
signs are in conformance with Landlord's sign criteria established for the
Building.
3.03 COMPLIANCE WITH LAWS, RULES AND REGULATIONS. Tenant, at
Tenant's sole cost and expense, shall comply with all laws, ordinances, orders,
rules and regulations of state, federal, municipal or other agencies or bodies
having jurisdiction over the use, condition or occupancy of the Premises,
provided, however, that Tenant shall not be obligated to modify (or pay the cost
of modifying) any structural component of the Building outside of the Premises,
unless such change is required by Tenant's use of the Premises. Tenant will
comply with the rules and regulations of the Building adopted by Landlord which
are set forth on a schedule attached to this Lease. Landlord shall have the
right at all times to change and amend the rules and regulations in any
reasonable manner as may be deemed advisable for the safety, care, cleanliness,
preservation of good order and operational use of the Building or the Premises.
All changes and amendments to the rules and regulations of the Building will be
sent by Landlord to Tenant in writing and shall thereafter be carried out and
observed by Tenant. Landlord represents and warrants to Tenant that Landlord has
no actual knowledge, without inquiry or investigation, that Landlord has
received written notification from any governmental or regulatory agency of any
alleged violation of any laws, ordinances, orders, rules or regulations
pertaining to the Building.
3.04 WARRANTY OF POSSESSION. Landlord warrants that it has the
right and authority to execute this Lease, and Tenant, upon payment of the
required rents and subject to the terms, conditions, covenants and agreements
contained in this Lease, shall have possession of the Premises during the full
term of this Lease as well as any extension or renewal thereof. Landlord shall
not be responsible for the acts or omissions of any other tenant or third party
that may interfere with Tenant's use and enjoyment of the Premises.
3.05 INSPECTION. Landlord or its authorized agent shall at any and
all reasonable times have the right to enter the Premises to inspect the same,
to supply janitorial service or any other service to be provided by Landlord, to
show the Premises to prospective purchasers or tenants, and to alter, improve or
repair the Premises or any other portion of the Building. Tenant hereby waives
any claim for damages for injury or inconvenience to or interference with
Tenant's business, any loss of occupancy or use of the Premises, and any other
loss occasioned thereby. Landlord shall at all times have and retain a key with
which to unlock all of the doors in, upon and about the Premises. Tenant shall
not change Landlord's lock system or in any other manner prohibit Landlord from
entering the Premises. Landlord shall have the right to use any and all means
which Landlord may deem proper to open any door in an emergency without
liability therefor.
ARTICLE 4.00 UTILITIES AND SERVICE
4.01 BUILDING SERVICES. Landlord shall provide water and
electricity to Tenant during the term of this Lease. Tenant shall pay all
telephone charges. Landlord shall furnish Tenant hot and cold water at those
points of supply provided for general use of other tenants in the Building,
central heating and air conditioning in season (at times Landlord normally
provides these services to other tenants in the Building, and at temperatures
and in amounts as are considered by Landlord to be standard or in compliance
with any governmental regulations, such service on Saturday afternoons, Sundays,
evenings and holidays to be furnished only upon the request of Tenant, who shall
bear the entire cost). Landlord shall also provide
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routine maintenance, painting and electric lighting service for all public areas
and special service areas of the Building in the manner and to the extent deemed
by Landlord to be standard. Landlord may, in its sole discretion, provide
additional services not enumerated herein. Failure by Landlord to any extent to
provide these defined services or any other services not enumerated, or any
cessation thereof, shall not render Landlord liable in any respect for damages
to either person or property, be construed as an eviction of Tenant, work an
abatement of rent or relieve Tenant from fulfillment of any covenant of this
Lease. Should any of the equipment or machinery break down, or for any cause
cease to function properly, Landlord shall use reasonable diligence to repair
the same promptly, but Tenant shall have no claim for rebate of rent on account
of any interruption in service occasioned from the repairs. Landlord reserves
the right from time to time to make changes in the utilities and services
provided by Landlord to the Building.
4.02 THEFT OR BURGLARY. Landlord shall not be liable to Tenant for
losses to Tenant's property or personal injury caused by criminal acts or entry
by unauthorized persons into the Premises or the Building.
4.03 JANITORIAL SERVICE. Landlord shall furnish janitorial services
to the Premises and public areas of the Building five times per week during the
term of this Lease, excluding holidays. Landlord shall not provide janitorial
service to kitchens or storage areas included in the Premises.
4.04 EXCESSIVE UTILITY CONSUMPTION. Tenant shall pay all utility
costs occasioned by electrodata processing machines, telephone equipment,
computers and other equipment of high electrical consumption, including without
limitation, the cost of installing, servicing and maintaining any special or
additional inside or outside wiring or lines, meters or submeters, transformers,
poles, air conditioning costs, or the cost of any other equipment necessary to
increase the amount or type of electricity or power available to the Premises.
4.05 WINDOW COVERAGE. Landlord shall furnish and install window
covering on all exterior windows to maintain a uniform exterior appearance.
Tenant shall not remove or replace these window coverings or install any other
window covering which would affect the exterior appearance of the Building.
Tenant may install lined or unlined over-draperies on the interior sides of the
Landlord furnished window coverings for interior appearance or to reduce light
transmission, provided such draperies do not affect the exterior appearance of
the Building or affect the operation of the Building's heating, ventilating and
air conditioning system.
4.06 CHARGE FOR SERVICE. All costs of Landlord for providing the
services set forth in Article 4.00 (except those charges paid by Tenant pursuant
to section 4.04) shall be subject to the additional rent provisions in section
2.02.
ARTICLE 5.00 REPAIRS AND MAINTENANCE
5.01 LANDLORD REPAIRS. Landlord shall not be required to make any
improvements, replacements or repairs of any kind or character to the Premises
or the Building during the term of this Lease except as are set forth in this
section. Landlord shall maintain only the roof, foundation, parking and Common
Areas, the structural soundness of the exterior walls, doors, corridors, windows
and other structures or equipment serving the Premises. Landlord's cost of
maintaining and repairing the items set forth in this section are subject to the
additional rent provisions in section 2.02. Landlord shall not be liable to
Tenant, except as expressly provided in this Lease, for any damage or
inconvenience, and Tenant shall not be entitled to any abatement or reduction of
rent by reasons of any repairs, alterations or additions made by Landlord under
this Lease.
5.02 TENANT REPAIRS. Tenant shall, at its own cost and expense,
repair or replace any damage or injury to all or any part of the Premises caused
by any act or omission of Tenant or Tenant's Representatives; provided, however,
if Tenant fails to make the repairs or replacements promptly, Landlord may, at
its option, make the repairs or replacements, and the costs of such repairs or
replacements (including a 10% supervision fee) shall be charged to Tenant as
additional rent and shall become payable by Tenant with the payment of the rent
next due hereunder.
5.03 REQUEST FOR REPAIRS. All requests for repairs or maintenance
that are the responsibility of Landlord pursuant to any provision of this Lease
must be made in writing to the Building Manager at the address in section 1.03.
5.04 TENANT DAMAGES. Tenant shall not allow any damage to be
committed on any portion of the Premises or Building, and at the termination of
this Lease, by lapse of time or otherwise, Tenant shall deliver the Premises to
Landlord in as good condition as existed at the Commencement Date of this Lease,
ordinary wear and tear excepted. The cost and expense of any repairs necessary
to restore the condition of the Premises shall be borne by Tenant.
ARTICLE 6.00 ALTERATIONS AND IMPROVEMENTS
6.01 LANDLORD IMPROVEMENTS. If construction to the Premises is to
be performed by Landlord prior to or during Tenant's occupancy, Landlord will
complete the construction of the improvements to the Premises in accordance with
plans and specifications agreed to by Landlord and Tenant, which plans and
specifications are made a part of this Lease by
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reference. Within seven (7) days of receipt of plans and specifications, Tenant
shall execute a copy of the plans and specifications and, if applicable, change
orders setting forth the amount of any costs to be borne by Tenant. In the event
Tenant fails to execute the plans and specifications and change order within the
seven (7) day period, Landlord may, at its sole option, declare this Lease
canceled or notify Tenant that the Base Rent shall commence on the completion
date even though the improvements to be constructed by Landlord may not be
complete. Any changes or modifications to the approved plans and specifications
shall be made and accepted by written change order or agreement signed by
Landlord or Building Manager and Tenant and shall constitute an amendment to
this Lease.
6.02 TENANT IMPROVEMENTS. Tenant shall not make or allow to be made
any alterations or physical additions in or to the Premises without first
obtaining the written consent of Landlord, which consent may in the sole and
absolute discretion of Landlord be denied. Any alterations, physical additions
or improvements to the Premises made by Tenant shall at once become the property
of Landlord and shall be surrendered to Landlord upon the termination of this
Lease; provided, however, Landlord, at its option, may require Tenant to remove
any physical additions and/or repair any alterations in order to restore the
Premises to the condition existing at the time Tenant took possession, all costs
of removal and/or alterations to be borne by Tenant. This clause shall not apply
to moveable equipment or furniture owned by Tenant, which may be removed by
Tenant at the end of the term of this Lease if Tenant is not then in default and
if such equipment and furniture are not then subject to any other rights, liens
and interests of Landlord.
ARTICLE 7.00 CASUALTY AND INSURANCE
7.01 SUBSTANTIAL DESTRUCTION. If the Premises should be totally
destroyed by fire or other casualty, or the Premises should be damaged so that
rebuilding cannot reasonably be completed within one hundred and twenty (120)
working days after the date of written notification by Tenant to Landlord of the
destruction, this Lease may, at Landlord's option, terminate and the rent shall
be abated for the unexpired portion of the Lease, effective as of the date of
the written notification.
7.02 PARTIAL DESTRUCTION. If the Premises should be partially
damaged by fire or other casualty, and rebuilding or repairs can reasonably be
completed within one hundred and twenty (120) working days from the date of
written notification by Tenant to Landlord of the destruction, this Lease shall
not terminate, and Landlord shall at its sole risk and expense proceed with
reasonable diligence to rebuild or repair the Building or other improvements to
substantially the same condition in which they existed prior to the damage. If
the Premises are to be rebuilt or repaired and are untenantable in whole or in
part following the damage, and the damage or destruction was not caused or
contributed to by act or negligence of Tenant, Tenant's Representatives or those
for whom Tenant is responsible, the rent payable under this Lease during the
period for which the Premises are untenantable shall be adjusted to such an
extent as may be fair and reasonable under the circumstances. In the event that
Landlord fails to complete the necessary repairs or rebuilding within one
hundred and twenty (120) working days from the date of written notification by
Tenant to Landlord of the destruction, Landlord may, at its option, terminate
this Lease by delivering written notice of termination to Tenant, whereupon all
rights and obligations under this Lease shall cease to exist.
7.03 PROPERTY INSURANCE. Landlord shall at all times during the
term of this Lease maintain a policy or policies of insurance with the premiums
paid in advance, issued by and binding upon some solvent insurance company,
insuring the Building against all risk of direct physical loss in an amount
equal to at least ninety percent (90%) of the full replacement cost of the
Building structure and its improvements as of the date of the loss; provided
Landlord shall not be obligated in any way or manner to insure any personal
property (including but not limited to, any furniture, machinery, goods or
supplies) of Tenant upon or within the Premises, any fixtures installed or paid
for by Tenant upon or within the Premises, or any improvements which Tenant may
construct on the Premises. Tenant shall have no right in or claim to the
proceeds of any policy of insurance maintained by Landlord even if the cost of
such insurance is borne by Tenant as set forth in Article 2.00.
7.04 TENANT'S INSURANCE. At all times during the term of this
lease, Tenant shall carry and maintain, at Tenant's expense, the following
insurance in the amounts specified below or such other amounts as Landlord shall
from time to time reasonably request, with insurance companies and on forms
satisfactory to Landlord:
A. Public liability and property damage liability insurance, with
a combined single occurrence limit of not less than $1,000,000.00. All such
insurance shall specifically include without limitation contractual liability
coverage for the performance by Tenant of the indemnity agreements set forth in
this lease.
B. Workmen's compensation insurance satisfying Tenant's
obligations and liabilities under the workmen's compensation laws of the State.
All policies of public liability and property damage liability
insurance which Tenant is obligated to maintain according to this lease shall
name Landlord as an additional insured. Tenant shall deliver to Landlord a copy
of all such policies or certificates of insurance (including in any case
documentation naming Landlord as an additional insured) and evidence of payment
of all premiums for any such policies prior to Tenant's occupancy of the demised
premises and from
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time to time during the lease term, at least 30 days prior to the expiration of
the term of each such policy. All policies of public liability and property
damage liability insurance maintained by Tenant shall also contain a provision
that Landlord, although named as an additional insured, shall nevertheless be
entitled to recover under such policies for any loss sustained by Landlord, its
agents and employees as a result of the acts or omissions of Tenant. Such public
liability and property damage liability policies shall also be written as
primary policies, not contributing with and not in excess of coverage that
Landlord may carry. All policies required to be maintained by Tenant shall
provide that they may not be terminated or amended except after 30 days' prior
notice to Landlord.
7.05 WAIVER OF SUBROGATION. Anything in this Lease to the contrary
notwithstanding, Landlord and Tenant hereby waive and release each other of and
from any and all right of recovery, claim, action or cause of action, against
each other, their agents, officers and employees, for any loss or damage that
may occur to the Premises, improvements to the Building of which the Premises
are a part, or personal property within the Building, by reason of fire or the
elements, regardless of cause or origin, including negligence of Landlord or
Tenant and their agents, officers and employees. Landlord and Tenant agree
immediately to give their respective insurance companies which have issued
policies of insurance covering all risk of direct physical loss, written notice
of the terms of the mutual waivers contained in this section, and to have the
insurance policies properly endorsed, if necessary to prevent the invalidation
of the insurance coverages by reason of the mutual waivers.
7.06 HOLD HARMLESS. Landlord shall not be liable to Tenant,
Tenant's Representatives, or to any other person, for an injury to person or
damage to property on or about the Premises caused by any act or omission of
Tenant, Tenant's Representatives, or of any other person entering upon the
Premises under express or implied invitation by Tenant or Tenant's
Representatives, or caused by the improvements located on the Premises becoming
out of repair, the failure or cessation of any service provided by Landlord
(including security service and devices), or caused by leakage of gas, oil,
water or steam or by electricity emanating from the Premises. Tenant agrees to
indemnify and hold harmless Landlord of and from any loss, attorneys' fees,
expenses or claims arising out of any such damage or injury. Nothing in the
foregoing shall relieve Landlord of its liability or cause Tenant to indemnify
Landlord for Landlord's gross negligence or willful misconduct.
ARTICLE 8.00 CONDEMNATION
8.01 SUBSTANTIAL TAKING. If all or a substantial part of the
Premises are taken for any public or quasi-public use under any governmental
law, ordinance or regulation, or by right of eminent domain or by purchase in
lieu thereof, and the taking would prevent or materially interfere with the use
of the Premises for the purpose for which it is then being used, this Lease
shall terminate and the rent shall be abated during the unexpired portion of
this Lease effective on the date physical possession is taken by the condemning
authority. Tenant shall have no claim to the condemnation award or proceeds in
lieu thereof.
8.02 PARTIAL TAKING. If a portion of the Premises shall be taken
for any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain or by purchase in lieu thereof, and
this Lease is not terminated as provided in section 8.01 above, Landlord shall
at Landlord's sole risk and expense, restore and reconstruct the Building and
other improvements on the Premises to the extent necessary to make it reasonably
tenantable. The rent payable under this Lease during the unexpired portion of
the term shall be adjusted to such an extent as may be fair and reasonable under
the circumstances. Tenant shall have no claim to the condemnation award or
proceeds in lieu thereof.
ARTICLE 9.00 ASSIGNMENT OR SUBLEASE
9.01 LANDLORD ASSIGNMENT. Landlord shall have the right to sell,
transfer or assign, in whole or in part, its rights and obligations under this
Lease and in the Building. Any such sale, transfer or assignment shall operate
to release Landlord from any and all liabilities under this Lease arising after
the date of such sale, assignment or transfer.
9.02 TENANT ASSIGNMENT. Tenant shall not assign, in whole or in
part, this Lease, or allow it to be assigned, in whole or in part, by operation
of law or otherwise (including without limitation by transfer of a majority
interest of stock, merger, or dissolution, which transfer of majority interest
of stock, merger or dissolution shall be deemed an assignment) or mortgage or
pledge the same, or sublet the Premises, in whole or in part, without the prior
written consent of Landlord, as more fully described below, and in no event
shall any such assignment or sublease ever release Tenant or any guarantor from
any obligation or liability hereunder. No assignee or sublessee of the Premises
or any portion thereof may assign or sublet the Premises or any portion hereof.
Notwithstanding the above, Tenant may assign this Lease or sublease the Premises
upon fulfillment of all of the following express conditions, but not otherwise:
(A) Tenant has notified Landlord in writing of any
interest in this Lease which Tenant wishes to assign
or any portion of the Premises which Tenant wishes to
sublet or permit others to occupy; such notice shall
specify the terms and conditions of such transaction
and shall be
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accompanied by any information Landlord may
reasonably require with respect to the proposed
assignee, sublessee or occupant;
(B) Tenant is not then in default under any of the terms,
covenants, conditions, provisions, or agreements of
this Lease;
(C) The proposed assignee or subtenant shall be subject
to the prior written consent of Landlord, which
consent will not be unreasonably withheld, but,
without limiting the generality of the foregoing, it
shall be reasonable for Landlord to deny such consent
if:
(a) the use to be made of the Premises by the
proposed assignee or subtenant is [i] not
generally consistent with the character and
nature of all other tenancies in the
Building, or [ii] a use which conflicts with
any so-called "exclusive" then in favor of,
or any use which is the same as that stated
in any percentage Lease to, another tenant
of the Building, or [iii] a use which would
be prohibited by any other portion of this
Lease (including, but not limited to, any
Rules and Regulations then in effect); or
(b) the character, moral stability, reputation
and financial responsibility of the proposed
assignee or subtenant are not reasonably
satisfactory to Landlord or in any event not
at least equal to those which were possessed
by Tenant as of the date of execution of
this Lease;
(D) Neither such assignment or sublease, nor Landlord's
consent thereto, shall release or discharge Tenant of
or from any liability, whether past, present or
future, under this Lease;
(E) The consent by Landlord to any such assignment or
sublease shall not in any way be construed to relieve
Tenant or any assignee or subtenant from obtaining
the express consent in writing of Landlord to any
further assignment or sublease;
(F) Tenant shall not be released from any liability under
this Lease because of Landlord's failure to give
Tenant notice of default under any of the terms,
covenants, conditions, provisions or agreements of
this Lease;
(G) Tenant does not sublease the Premises to more than
one subtenant;
(G) The term of each sublease is not less than one year,
unless the unexpired term of this Lease is less than
one year, in which event the term of such sublease
shall be for the unexpired term of this Lease, less
one day; and, in no event shall the term of the
sublease be for a longer period than the unexpired
term of this Lease, less one day;
(H) Each sublease shall expressly provide that it is
subject and subordinate to this Lease;
(I) Tenant shall pay to Landlord Landlord's then standard
reasonable processing fee and the reasonable
attorneys' fees incurred in connection with each such
request;
(J) The proposed assignee or subtenant shall execute an
agreement pursuant to which it shall agree to perform
faithfully and be bound by all of the terms,
covenants, conditions, provisions and agreements of
this Lease; and
(K) An executed duplicate original of an assignment and
assumption agreement or sublease, on Landlord's then
standard form, shall be delivered to Landlord within
five ten (10) days after the execution of the
agreement, and such assignment or sublease shall not
be binding upon Landlord until the delivery of the
agreement to Landlord and the execution and delivery
of Landlord's consent to the agreement.
Landlord shall receive one-half (1/2) of any net
profits which Tenant may receive by assigning this
Lease or subleasing the Premises, including increased
Base Rent collected by Tenant. As used in this Lease,
the term "profits" shall mean the consideration
payable by the assignee or subtenant to Tenant fairly
attributable to this Lease and the Premises (which,
if payable on other than a monthly schedule, will be
prorated on a monthly basis), including the gross
monthly rent
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received by Tenant under such assignment or sublease,
less (i) the pro rata base monthly rent and
escalation additional rent payable by Tenant to
Landlord with respect to the Premises covered by the
assignment or sublease, and (ii) an amortized portion
of the aggregate of the broker's commissions payable
to an outside broker with respect to the assignment
or sublease, and (iii) a pro rata portion of the
unamortized portion of costs of any work performed at
Tenant's expense in the demised Premises at the
beginning of the term of the assignment or sublease.
Landlord shall have the option to terminate this
Lease, rather than approve the assignment or
subleasing of it.
9.03 CONDITIONS OF ASSIGNMENT. If Tenant desires to assign or
sublet all or any part of the Premises, it shall so notify Landlord at least
thirty (30) days in advance of the date on which Tenant desires to make such
assignment or sublease. Tenant shall provide Landlord with a copy of the
proposed assignment or sublease and such information as Landlord might request
concerning the proposed sublessee or assignee to allow Landlord to make informed
judgments as to the financial condition, reputation, operations and general
desirability of the proposed sublessee or assignee. Within fifteen (15) days
after Landlord's receipt of Tenant's proposed assignment or sublease and all
required information concerning the proposed sublessee or assignee, Landlord
shall have the following options: (1) cancel this Lease as to the Premises or
portion thereof proposed to be assigned or sublet; (2) consent to the proposed
assignment or sublease; or (3) refuse, in its reasonable discretion and
judgment, as provided above, to consent to the proposed assignment or sublease,
which refusal shall be deemed to have been exercised unless Landlord gives
Tenant written notice providing otherwise. Upon the occurrence of an event of
default, if all or any part of the Premises are then assigned or sublet,
Landlord, in addition to any other remedies provided by this Lease or provided
by law, may, at its option collect directly from the assignee or sublessee all
rents becoming due to Tenant by reason of the assignment or sublease, and
Landlord shall have a security interest in all properties on the Premises to
secure payment of such sums. Any collection directly by Landlord from the
assignee or sublessee shall not be construed to constitute a novation or a
release of Tenant or any guarantor from the further performance of its
obligations under this Lease.
9.04 RIGHTS OF MORTGAGEE. Tenant accepts this Lease subject and
subordinate to any recorded mortgage or deed of trust lien presently existing or
hereafter created upon the Building and to all existing recorded restrictions,
covenants, easements and agreements with respect to the Building. Landlord is
hereby irrevocably vested with full power and authority to subordinate Tenant's
interest under this Lease to any first mortgage or deed of trust lien hereafter
placed on the Premises, and Tenant agrees upon demand to execute additional
instruments subordinating this lease as Landlord may require. If the interests
of Landlord under this Lease shall be transferred by reason of foreclosure or
other proceedings for enforcement of any first mortgage or deed of trust on the
Premises, Tenant shall be bound to the transferee (sometimes called the
"Purchaser") at the option of the Purchaser, under the terms, covenants and
conditions of this Lease for the balance of the term remaining, including any
extensions or renewals, with the same force and effect as if the Purchaser were
Landlord under this Lease, and, if requested by the Purchaser, Tenant agrees to
attorn to the Purchaser, including the first mortgagee under any such mortgage
if it be the Purchaser, as its Landlord.
9.05 ESTOPPEL CERTIFICATES. Tenant agrees to furnish, from time to
time, within ten (10) days after receipt of a request from Landlord or
Landlord's mortgagee, a statement certifying, if applicable, the following:
Tenant is in possession of the Premises; the Premises are acceptable; the Lease
is in full force and effect; the Lease is unmodified; Tenant claims no present
charge, lien, or claim of offset against rent; the rent is paid for the current
month, but is not prepaid for more than one month and will not be prepaid for
more than one month in advance; there is no existing default by reason of some
act or omission by Landlord; and such other matters as may be reasonably
required by Landlord or Landlord's mortgagee. Tenant's failure to deliver such
statement, in addition to being a default under this Lease, shall be deemed to
establish conclusively that this Lease is in full force and effect except as
declared by Landlord, that Landlord is not in default of any of its obligations
under this Lease, and that Landlord has not received more than one month's rent
in advance.
ARTICLE 10.00 LIENS
10.01 LANDLORD'S LIEN. As security for payment of rent, including
any additional rent, damages and all other payments required to be made by this
Lease, Tenant hereby grants to Landlord a lien upon all property of Tenant now
or subsequently located upon the Premises. If Tenant abandons or vacates any
substantial portion of the Premises or is in default in the payment of any
rentals, damages or other payments required to be made by this Lease or is in
default of any other provision of this Lease, Landlord may enter upon the
Premises, by picking or changing locks, if necessary, and if permitted by law,
take possession of all or any part of the personal property, and may sell all or
any part of the personal property at a public or private sale, in one of
successive sales, with or without notice, to the highest bidder for cash, and,
on behalf of Tenant, sell and convey all or part of the personal property to the
highest bidder, delivering to the highest bidder all of Tenant's title and
interest in the personal property sold. The proceeds of this sale of the
personal property shall be applied by Landlord toward the reasonable costs and
expenses of the sale, including attorneys' fees, and then toward the
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payment of all sums then due by Tenant to Landlord under the terms of this
Lease. Any excess remaining shall be paid to Tenant or any other person entitled
thereto by law.
10.02 UNIFORM COMMERCIAL CODE. This Lease is intended as and
constitutes a security agreement within the meaning of the Uniform Commercial
Code of the State. Landlord, in addition to the rights prescribed in this Lease,
shall have all of the rights, title, liens and interests in and to Tenant's
property, now or hereafter located upon the Premises, which may be granted a
secured party, as that term is defined, under the Uniform Commercial Code to
secure to Landlord payment of all sums due and the full performance of all
Tenant's covenants under this Lease. Tenant will on request execute and deliver
to Landlord a financing statement for the purpose of perfecting Landlord's
security interest under this Lease or Landlord may file this Lease or a copy
thereof as a financing statement. Unless otherwise provided by law and for the
purpose of exercising any right pursuant to this section, Landlord and Tenant
agree that reasonable notice shall be met if such notice is given by ten (10)
days written notice, certified mail, return receipt requested, to Landlord or
Tenant at the addresses specified herein.
ARTICLE 11.00 DEFAULT AND REMEDIES
11.01 DEFAULT BY TENANT. The following shall be deemed to be events
of default by Tenant under this Lease: (1) Tenant shall fail to pay within ten
(10) days of when due any Monthly Installment of Base Rent, additional rent, or
any other payment required pursuant to this Lease; (2) Lessee shall abandon any
substantial portion of the Premises; (3) Tenant shall fail to comply with any
term, provision or covenant of this Lease, other than the payment of rent, and
the failure is not cured within thirty (30) days after written notice to Tenant;
(4) Tenant shall file a petition or be adjudged bankrupt or insolvent under any
applicable federal or state bankruptcy or insolvency law or admit that it cannot
meet its financial obligations as they become due; or a receiver or trustee
shall be appointed for all or substantially all of the assets of Tenant; or
Tenant shall make a transfer in fraud or creditors or shall make an assignment
for the benefit of creditors; or (5) Tenant shall do or permit to be done any
act which results in a lien being filed against the Premises or the Building of
which Premises are a part.
11.02 REMEDIES FOR TENANT'S DEFAULT. Upon the occurrence of any
event of default set forth in this lease, Landlord shall have the option to
pursue any one or more of the remedies set forth herein without any notice or
demand; (1) Landlord may enter upon and take possession of the Premises without
terminating this Lease, by picking or changing locks, if necessary, and if
permitted by law, lock out, expel or remove Tenant or any other person who may
be occupying all or any part of the Premises without being liable for any claim
for damages, and relet Premises on behalf of Tenant and receive the rent
directly by reasons of the reletting. Tenant agrees to pay Landlord on demand
any deficiency that may arise by reason of any reletting of the Premises;
further, Tenant agrees to reimburse Landlord for any expenditures made by it in
order to relet the Premises, including, but not limited to, remodeling and
repair costs; (2) Landlord may enter upon the Premises, by picking or changing
locks if necessary, without being liable for any claim for damages, 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 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 Lease unless
caused by the gross negligence or willful misconduct of Landlord or otherwise;
(3) Landlord may terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails to surrender the
Premises, Landlord may, without prejudice to any other remedy which it may have
for possession or arrearages in rent, enter upon and take possession of the
Premises, by picking or changing locks if necessary, and lock out, expel or
remove Tenant and any other person who may be occupying all or any part of the
Premises without being liable for any claim for damages. Tenant agrees to pay on
demand the amount of all loss and damage which Landlord may suffer by reason of
the termination of this Lease under this section, whether through inability to
relet the Premises on satisfactory terms or otherwise. Notwithstanding any other
remedy set forth in this Lease, in the event Landlord has made rent concessions
of any type or character, or waived any Base Rent, and Tenant fails to take
possession of the Premises on the Commencement or Completion Date or otherwise
defaults at any time during the term of this Lease, the rent concessions,
including any waived Base Rent, shall be canceled and the amount of the Base
Rent or other rent concessions shall be due and payable immediately as if no
rent concessions or waiver of any Base Rent had ever been granted. A rent
concession or waiver of the Base Rent shall not relieve Tenant of any obligation
to pay any other charge due and payable under this Lease including without
limitation any sum due under section 2.02. Notwithstanding anything contained in
this Lease to the contrary, this Lease may be terminated by Landlord only by
mailing or delivering written notice of such termination to Tenant, and no other
act or omission of Landlord shall be construed as a termination of this Lease.
Any property left on the demised premises at the expiration or other termination
of this lease, may, at the option of Landlord, either be deemed abandoned or be
placed in storage at a public warehouse in the name of and for the account of
and at the expense and risk of Tenant. If such property is not claimed by Tenant
within ten days after such expiration, termination, it may be sold or otherwise
disposed of by Landlord. Tenant expressly releases Landlord of and from any and
all claims and liability for damage to or loss of property left by Tenant upon
the demised premises at the expiration or other termination of this lease, and
Tenant hereby indemnifies Landlord against any and all claims and liability with
respect thereto.
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ARTICLE 12.00 RELOCATION
12.01 RELOCATION OPTION. Landlord reserves the right, at its option,
to transfer and remove Tenant from the Premises to any other available space in
the Building of substantially equal size and area.
12.02 EXPENSES. Landlord shall pay all out-of-pocket expenses of any
such relocation, including the expenses of moving and reconstruction of all
Tenant furnished and Landlord furnished improvements. Any such reconstruction
shall be substantially completed, subject to Landlord's architect's reasonable
approval, prior to relocation. In the event of such relocation, this Lease shall
continue in full force and effect without any change in the terms or conditions
of this Lease, but with the new location substituted for the old location set
forth in sections 1.02 and 1.03 of this Lease.
ARTICLE 13.00 DEFINITIONS
13.01 ABANDON. "Abandon" means the vacating of all or a substantial
portion of the Premises by Tenant, whether or not Tenant is in default of the
rental payments due under this Lease.
13.02 FORCE MAJEURE. "Force Majeure" is defined for purposes of this
Lease as strikes, lockouts, sitdowns, material or labor restrictions by any
governmental authority, unusual transportation delays, riots, floods, walkouts,
explosions, earthquakes, fire, storms, weather (including wet grounds or
inclement weather) which prevents commencement on the Commencement Date.
13.03 BUILDING. "Building" as used in this Lease means the Building
described in section 1.03, including the Premises and the land upon which the
Building is situated.
13.04 COMMENCEMENT DATE. "Commencement Date" shall be the date set
forth in section 1.03. The Commencement Date shall constitute the commencement
of the term of this Lease for all purposes, whether or not Tenant has actually
taken possession.
13.05 COMPLETION DATE. "Completion Date" shall be the date on which
the improvements erected and to be erected upon the Premises shall have been
completed in accordance with the plans and specifications described in Article
6.00 and Exhibit B to this Lease. Landlord shall use its best efforts to
establish the Completion Date as the date set forth in section 1.03. In the
event that the improvements have not in fact been completed as of that date,
Tenant shall notify Landlord in writing of its objections. Landlord shall have a
reasonable time after delivery of the notice in which to take such corrective
action as may be necessary and shall notify Tenant in writing as soon as it
deems such corrective action has been completed and the improvements are ready
for occupancy. Upon substantial completion of construction, Tenant shall deliver
to Landlord a letter accepting the Premises as suitable for the purposes for
which they are let and the date of such letter shall constitute the commencement
of the term of this Lease. Whether or not Tenant has executed such letter of
acceptance, taking possession of the Premises by Tenant shall be deemed to
establish conclusively that the improvements have been completed in accordance
with the plans and specifications, are suitable for the purposes for which the
Premises are let, and that the Premises are in good and satisfactory condition
as of the date possession was so taken by Tenant except for latent defects, if
any.
13.06 SQUARE FEET. "Square feet" or "square foot" as used in this
Lease includes the area contained within the Premises together with a common
area percentage factor of the Premises proportionate to the total Building area.
It is agreed and understood by the parties that in the event more than two (2)
tenants (including Tenant, but exclusive of any sub-tenants) occupy the floor on
which the Premises are located, the common area percentage factor of the
Premises shall change and will be recalculated by Landlord's architect in
accordance with the measurement standards then in effect and established by the
Building Owners and Managers Association ("BOMA"), and the size of the Premises
(Section 1.03(B)), Base Rent (Section 1.03(H)), Monthly Installments of Base
Rent (Section 1.03(I)) and Tenant's Proportionate Share (Section 1.03(J)) shall
all be recalculated according to said BOMA measurement standards. In the event
of any such re-measurement, Landlord and Tenant agree to enter into an amendment
to the Lease verifying the change in the common area percentage factor, and the
revised size of the Premises, Base Rent, Monthly Installments of Base Rent and
Tenant's Proportionate Share.
ARTICLE 14.00 MISCELLANEOUS
14.01 WAIVER. Failure of Landlord to declare an event of default
immediately upon its occurrence, or delay in taking any action in connection
with an event of default, shall not constitute a waiver of the default, but
Landlord shall have the right to declare the default at any time and take such
action as is lawful or authorized under this Lease. Pursuit of any one or more
of the remedies set forth in Article 11.00 above shall not preclude pursuit of
any one or more of the other remedies provided elsewhere in this Lease or
provided by law, nor shall pursuit of any remedy constitute forfeiture or waiver
of any rent or damages accruing to Landlord by reason of the violation of any of
the terms provisions or covenants of this Lease. Failure by Landlord to enforce
one or more of the remedies provided upon an event of default shall not be
Page 11 of 13
16
deemed or construed to constitute a waiver of the default or of any other
violation or breach of any of the terms, provisions or covenants contained in
this Lease.
14.02 FORCE MAJEURE. Landlord shall not be required to perform any
covenant or obligation in this Lease, or be liable in damages to Tenant, so long
as the performance or non-performance of the covenant or obligation is delayed,
caused or prevented by force majeure, by Tenant or Tenant's Representatives.
14.03 ATTORNEYS' FEES. In the event either party to this Lease
defaults in any of the terms, covenants, agreements or conditions contained
herein, the prevailing party shall be entitled to recover from the losing party
reasonable attorneys' fees and costs of suit.
14.04 SUCCESSORS. This Lease shall be binding upon and inure to the
benefit of Landlord and Tenant and their respective heirs, personal
representatives, successors and assigns. It is hereby covenanted and agreed that
should Landlord's interest in the Premises cease to exist for any reason during
the term of this Lease, then notwithstanding the happening of such event this
Lease nevertheless shall remain unimpaired and in full force and effect, and
Tenant hereunder agrees to attorn to the then owner of the Premises.
14.05 RENT TAX. If applicable in the jurisdiction where the Premises
are situated, Tenant shall pay and be liable for all rental, sales and use taxes
or other similar taxes, if any, levied or imposed by any city, state, county or
other governmental body having authority, such payments to be in addition to all
other payments required to be paid to Landlord by Tenant under the terms of this
Lease. Any such payment shall be paid concurrently with the payment of the rent,
additional rent, operating expenses or other charge upon which the tax is based
as set forth above.
14.06 CAPTIONS. The captions appearing in this Lease are inserted
only as a matter of convenience and in no way define, limit, construe or
describe the scope of intent of any section.
14.07 NOTICE. All rent and other payments required to be made by
Tenant shall be payable to Landlord in care of Building Manager at the Building
Manager's address set forth in section 1.03. All payments required to be made by
Landlord to Tenant shall be payable to Tenant at the address set forth in
section 1.03, or at any other address within the United States as Tenant may
specify from time to time by written notice. Any notice or document required or
permitted to be delivered by the terms of this Lease shall be deemed to be
delivered (whether or not actually received) five (5) days after deposit in the
United States Mail, postage prepaid, certified mail, return receipt requested,
addressed to the parties at the respective addresses set forth in section 1.03.
14.08 SUBMISSION OF LEASE. Submission of this Lease to Tenant for
signature does not constitute a reservation of space or an option to lease. This
Lease is not effective until execution by and delivery to both Landlord and
Tenant.
14.09 CORPORATE AUTHORITY. If Tenant executes this Lease as a
corporation, each of the persons executing this Lease on behalf of Tenant does
hereby personally represent and warrant that Tenant is a duly authorized and
existing corporation, that Tenant is qualified to do business in the State that
the corporation has full right and authority to enter into this Lease, and that
each person signing on behalf of the corporation has authority to do so. In the
event any representation or warranty is false, all persons who execute this
Lease shall be liable, individually, as Tenant.
14.10 SEVERABILITY. If any provision of this Lease or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Lease and the application of
such provisions to other persons or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by law.
14.11 LESSOR'S LIABILITY. If Landlord shall be in default under this
Lease and, if as a consequence of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out of the
right, title and interest of Landlord in the Building as the same may then be
encumbered and neither Landlord nor any person or entity comprising Landlord
shall be liable for any deficiency. In no event shall Tenant have the right to
levy execution against any property of Landlord nor any person or entity
comprising Landlord other than its interest in the Building as herein expressly
provided.
14.12 INDEMNITY. Landlord agrees to indemnify and hold harmless
Tenant from and against any liability or claim, whether meritorious or not,
arising with respect to any broker whose claim arises by, through or on behalf
of Landlord. Tenant agrees to indemnify and hold harmless Landlord from and
against any liability or claim, whether meritorious or not, arising with respect
to any broker whose claim arises by, through or on behalf of Tenant.
14.13 RECORDING. Neither this Lease, nor any notice nor memorandum
regarding the terms hereof shall be recorded by Tenant. Any such unauthorized
recording shall give Landlord the right to declare a breach of this Lease and
pursue the remedies provided herein.
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17
14.14 WAIVER OF TRIAL BY JURY. Landlord and Tenant hereby waive
trial by jury in any action, proceeding or counterclaim brought by either of the
parties against the other on any matter whatsoever arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant, Tenant's use
or occupancy of the premises.
ARTICLE 15.00 AMENDMENT AND LIMITATION OF WARRANTIES
15.01 ENTIRE AGREEMENT. IT IS EXPRESSLY AGREED BY LANDLORD AND
TENANT, AS A MATERIAL CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS
LEASE, WITH THE SPECIFIC REFERENCES TO WRITTEN EXTRINSIC DOCUMENTS, IS THE
ENTIRE AGREEMENT OF THE PARTIES. THAT THERE ARE, AND WERE, NO VERBAL
REPRESENTATIONS, WARRANTIES, UNDERSTANDINGS, STIPULATIONS, AGREEMENTS OR
PROMISES PERTAINING TO THIS LEASE OR TO THE EXPRESSLY MENTIONED WRITTEN
EXTRINSIC DOCUMENTS NOT INCORPORATED IN WRITING IN THIS LEASE.
15.02 AMENDMENT. THIS LEASE MAY NOT BE ALTERED, WAIVED, AMENDED OR
EXTENDED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LANDLORD AND TENANT.
15.03 LIMITATION OF WARRANTIES. LANDLORD AND TENANT EXPRESSLY AGREE
THAT THERE ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHANTABILITY,
HABITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT
OF THIS LEASE, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THOSE EXPRESSLY
SET FORTH IN THIS LEASE.
ARTICLE 16.00 OTHER PROVISIONS
16.01 DOCUMENTS INCORPORATED BY REFERENCE. Attached hereto are the
following Exhibits which are incorporated by reference as if set forth herein:
Exhibit A - Description of Building and Premises
Exhibit B - Provisions Relating to Construction of Tenant's Space (Finish Allowance only)
Exhibit C - Rules and Regulations
ARTICLE 17.00 SIGNATURES
Signed at ___________________ this ___ day of ___________, 19__.
LANDLORD:
ST. XXXX PROPERTIES, INC.
a Delaware corporation
By: /s/ R. Xxxxxxx Xxxxxxx
---------------------------------------
R. Xxxxxxx Xxxxxxx
Vice president-Asset Management
TENANT:
THE TRIZETTO GROUP,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: CEO
Page 13 of 13
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ADDENDUM
THIS ADDENDUM (the "Addendum") is attached to and made a part of that
certain Lease Agreement (the "Lease") dated as of April 26, 1999, by and between
St. Xxxx Properties, Inc., a Delaware corporation ("Landlord"), and The Trizetto
Group, a Delaware corporation ("Tenant"). In the event of a conflict between the
terms and provisions of the Lease to which this Addendum is attached and this
Addendum, the terms and provisions of this Addendum shall control. Unless
otherwise defined herein, or unless the context otherwise requires, terms
initially capitalized in this Addendum shall have the same meaning as such
initially capitalized terms do in the Lease.
1. Extension Option. Provided no Event of Default has occurred and is
continuing, and provided that Tenant has not assigned the Lease or sublet more
than 8,000 rentable square feet of the Premises, Tenant shall have the option to
extend the term of this Lease for one (1) additional period of five (5) years by
giving the Landlord written notice of Tenant's election to extend the term of
the Lease no more than nine (9) months but at least six (6) months prior to the
expiration of the Term of this Lease. Upon the giving of such notice, and upon
mutual execution within thirty (30) days of such notice a written amendment to
this Lease specifying the terms of such extension, this Lease shall be
considered as extended for such option term upon the same terms, conditions and
covenants as are contained in this Lease except that there shall be no
additional extension options; and except that the parties shall renegotiate the
cost for and the number of parking spaces under Section 1.03(O), and except that
Tenant shall not have the Right of Offer to Lease provided in Paragraph 2 of
this Addendum and except that the Base Rent shall be calculated by multiplying
the number of rentable square feet of the Premises by the then fair market base
rental value of the Premises then being asked by Landlord for other office space
within the Building, and except that the base year for the calculation of Excess
Expenses during the extended term shall be the year in which the primary term of
the Lease expires. The "then-fair market base rental value of the Premises"
means what a landlord under no compulsion to Lease the Premises and a tenant
under no compulsion to lease the Premises would determine as rents (including
initial monthly rent and rental increases) for the option period, as of the
commencement of the option period, taking into consideration the uses permitted
under this Lease, the quality, size, design and location of the Premises, the
credit-worthiness of the Tenant and the rent for comparable buildings located in
the areas of the Premises, any concessions given by Landlord, and any other
factor reasonably related to the determination of rental values
2. Right Of Offer To Lease. During the initial term of the Lease,
Tenant shall have a right of first offer, subject to existing rights granted to
other tenants as of the date of this Lease, to lease the vacant space adjacent
to the Premises and currently known as Suite 300 and which is on the third floor
of the Building as more particularly shown on Exhibit A-1 attached hereto (the
"First Offer Space"), if and when the First Offer Space becomes "available for
lease." For purposes of this right of first offer, the First Offer Space will be
considered to be "available for lease" if (i) no bona fide written lease
agreement is currently in force or effect with respect to such space, (ii) the
space becomes vacant, or will become vacant, because an existing tenant's lease
has or will expire or be terminated with no renewal or extension options subject
to being exercised with respect to such space, and (iii) Landlord makes the
First Offer Space available for leasing to others. Tenant's right of first offer
with respect to such First Offer Space shall be upon the following terms and
conditions:
a. In the event that (i) the First Offer Space, or any part thereof,
becomes or is about to become available for lease as provided above,
Landlord will notify Tenant of the rental terms on which it would be
willing to lease the First Offer Space to Tenant, and Tenant shall have
the right of first offer to lease that portion of the First Offer Space
identified in Landlord's notice, subject to existing rights granted to
other tenants as of the date of this Lease, at the rent and on the
terms and conditions contained in Landlord's notice.
b. The right of first offer will be exercised by Tenant signing a lease
amendment with respect to the subject portion of the First Offer Space
at the rent and on the terms set forth in Landlord's notice. Tenant
shall accept or reject the offer contained in Landlord's notice within
five business (5) days after the receipt by Tenant of Landlord's
notice. If an amendment incorporating the terms contained in Landlord's
notice is not signed within five business (5) days following receipt of
Landlord's notice, time being strictly of the essence, Landlord will
have the right to lease the First Offer Space free of the rights of
Tenant under this Paragraph 2, and Tenant's right of first offer
granted herein shall be null and void. Any space leased by Tenant will
be added to the Leased Premises as of the date provided in the proposed
amendment.
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c. Notwithstanding any other provision set forth above, it is agreed
that Tenant shall not be permitted to exercise any of its rights
contained in this Paragraph 1 (i) at any time when the Lease is not in
effect or at any time when an Event of Default exists, (ii) in the
event that Tenant assigns the Lease or sublets more than 8,000 rentable
square feet of the leased Premises at any time, and (iii) Tenant may
not exercise the right contained in this Paragraph 2 if the effective
date of the addition of the First Offer Space to the Premises
previously leased would be at any time during the last year of the then
existing term of the Lease.
d. In the event that Tenant fails to exercise the foregoing right of
first offer as provided in this Paragraph 1, time being strictly of the
essence, Tenant's right of first offer shall be null and void.
e. Tenant acknowledges that it is only being granted a right of offer
that is subject and subordinate to the rights of any existing tenant
with pre-existing rights of refusal, rights of offer, or options to
lease, as of the date of this Lease.
f. In no event shall Landlord be responsible for any brokerage
commission for any real estate broker retained by Tenant with respect
to this right of first offer.
3. Termination Option. Provided no Event of Default has occurred and is
continuing, and provided that Tenant has not assigned the Lease, and in the
event Landlord is unable to accommodate within the Building the growth
requirements of Tenant, Tenant shall have the option, in its sole discretion, to
terminate the Lease with respect to the Premises on September 30, 2002, by
providing Landlord with one-hundred eighty (180) days' prior written notice of
Tenant's intent to terminate the Lease with respect to the Premises, and
provided that by September 30, 2002, Tenant shall pay Landlord a termination fee
equal to the sum of all of Landlord's unamortized costs of leasing the Premises
to Tenant, including but not limited to leasing commissions, tenant improvements
and rental abatement, plus an amount equal to four (4) months of Base Rent for
the Premises.
LANDLORD:
ST. XXXX PROPERTIES, INC.
By: /s/ Illegible signature
------------------------------
Name:
Title:
TENANT:
THE TRIZETTO GROUP
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: CEO
Page 2 of 2
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EXHIBIT A
[Building Floorplan]
23,610 RSF
21
EXHIBIT "B"
PROVISIONS RELATING TO CONSTRUCTION OF TENANT'S SPACE
(FINISH ALLOWANCE ONLY)
1. Landlord will provide Tenant with a construction credit in the sum
of up to Twelve and No/100 Dollars ($12.00) per rentable square foot of the
Premises, which equals Two Hundred Eighty-three Thousand Three Hundred Twenty
and No/100 Dollars ($283,320.00) (the "Construction Credit"), which may be used
only against the cost of design and construction by Landlord of Improvements or
alterations permanently installed and incorporated in the realty of the
Premises, including space plans and working drawings of the Premises (excluding
specifically fixtures, furniture and equipment), as contemplated under the plans
and specifications and working drawings to be prepared by an architect selected
by Landlord and initialed by Tenant and by Landlord for identification and
approval (the "Plans"); provided, however, that Landlord shall provide Tenant
with one space plan for the Premises at no charge (the cost of any additional
space plans and all working drawings shall be paid for out of the Construction
Credit). Landlord will cause such work (the "Work") to be performed in a good
and workmanlike manner and in accordance with the Plans, using Landlord's
standard building materials (unless otherwise specified by Tenant), and using
one of Landlord's approved contractors for the Building. All Work performed
shall be subject to Landlord's review and approval, including but not limited to
administration of the Work, which administration shall be subject to a
construction management fee payable to Landlord equal to one percent (1%) of the
total cost of such Work, and which shall be paid out of the Construction Credit.
All Work shall also be subject to the reasonable approval of the architect. If
the Construction Credit is not used within six months of the Commencement Date,
the unused portion shall revert back to Landlord. In the event the cost of the
Work exceeds the Construction Credit, Landlord agrees to provide an additional
Construction Credit (the "Additional Construction Credit") of up to One Hundred
Eighteen Thousand Fifty and No/100 Dollars ($118,050.00) provided the cost of
any such Additional Construction Credit shall increase the Base Rent under the
Lease for the Premises by amortizing such Additional Construction Credit over
the Term at the rate of eleven percent (11%) per annum, compounded monthly, and
further provided, that Landlord and Tenant shall enter into an amendment to this
Lease memorializing the amount of the Additional Construction Credit used, and
the new Base Rent for the Premises.
2. All material and labor selected by Tenant must be readily available
in Denver, Colorado. Tenant agrees that promptly after the execution of the
Lease, Tenant will advise Landlord of all selections or designations as to
paint, color and materials, if other than Landlord's standard materials.
3. Any additional work which Landlord may agree to perform, or cost of
changes or any materials or installations other than Landlord standard materials
or installations which Landlord may agree to obtain over and above the
Construction Credit, or the Additional Construction Credit if utilized by
Tenant, (to be known as "Tenant's Overstandard Work"), shall be procured at a
cost, plus 10% thereof as an administration payment. Costs include but are not
limited to so-called "general conditions" (e.g., trash, clean-up and hauling,
job lighting and power, insurance, safety protection, security and hoists) in
whole or in part apportionable to Tenant's Overstandard Work. If the aggregate
of all Tenant's Overstandard Work to which Landlord agrees is less than
$2,000.00, the whole amount shall be payable promptly after completion of such
work and after Landlord's billing Tenant for the work. If the aggregate of all
Tenant's Overstandard Work exceeds $2,000.00, such aggregate shall be payable
50% upon Tenant's signing with Landlord the agreement under which Landlord
agrees to perform such Tenant's Overstandard Work, and the balance shall be
payable in substantially equal progress payments promptly after Landlord's
billing Tenant for that work. Such payments in either event shall be collectible
as additional obligations which Tenant shall bear pursuant to the Lease, and, if
Tenant defaults in the payment of that work, Landlord shall have (in addition to
all other remedies) the same rights as provided in the Lease in the event of
Tenants' default in the payment of rent. Any Tenant's Overstandard Work shall
also be subject to the terms of the Lease and shall also be subject to
Landlord's approval of plans and specifications as set forth in Paragraph 1
above.
4. If the Premises are not ready for occupancy because of delays
attributable to Tenant (such as changes by Tenant to its finish requirements
after approval of the initial design, delays in providing information or
approving space plans and drawings, and like delays, but not including the
architect's reasonable rejection of the Work under Paragraph 1 above) the
Commencement Date shall be the date the Premises would have been substantially
completed and ready for occupancy in the absence of such delays, which date is
agreed to be the Completion Date, as that term is defined in paragraph 13.05 and
is shown in paragraph 1.03 of the Lease. Failure by Landlord to complete the
tenant finish improvements shall not relieve Tenant of its duty to pay rent and
perform its obligations under the Lease if such failure is attributable to
Tenant's failure to determine its requirements, approve plans and specifications
or otherwise facilitate completion of the tenant finish improvements. However,
if the Premises are not ready for occupancy because of delays not attributable
to Tenant, including but not limited to the failure of the condition precedent
requiring Pulte Mortgage Corporation to vacate the Premises on or before August
9, 1999, Force Majeure, or architect's reasonable rejection of the Work pursuant
to Paragraph 1 above, the Commencement Date shall be the date the Work is
substantially complete and the Premises are substantially ready for occupancy.
In the event the Commencement Date is delayed beyond October 1, 1999, the
Termination Date of the Lease shall be extended to the date which is the last
day of the month that is sixty-one (61)
Page 1 of 2
22
months after the Commencement Date, and the parties shall enter into an
amendment to the Lease verifying the Commencement Date and the Termination Date
of the Lease. The foregoing notwithstanding, in the event that the Work is not
substantially completed by February 1, 2000, because of delays not attributable
to Tenant, then Tenant may terminate the Lease upon prior written notice to
Landlord, to be delivered no later than February 4, 2000.
5. The term "substantially complete" is defined as the date when
construction is sufficiently completed in accordance with the contract
documents, as modified by any change orders agreed to by the parties, and
subject to completion of Tenant's reasonable list of punch-list items, so that
Tenant can occupy the Premises for the use for which it was intended.
Page 2 of 2
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EXHIBIT "C"
RULES AND REGULATIONS
1. Landlord agrees to furnish Tenant two (2) keys without charge. Additional
keys will be furnished at a nominal charge. Tenant shall not change locks or
install additional locks on doors without prior consent of Landlord. Tenant
shall not make or cause to be made duplicates of keys procured from Landlord
without prior approval of Landlord. All keys to Premises shall be surrendered to
Landlord upon termination of this Lease.
2. Tenant will refer all contractors, contractor's representatives and
installation technicians rendering any service on or to the Premises for Tenant
to Building Manager for its approval before performance of any contractual
service. Tenant's contractors and installation technicians shall comply with
Landlord's rules and regulations pertaining to construction and installation.
This provision shall apply to all work performed on or about the Premises,
including installation of telephones, telegraph equipment, electrical devices
and attachments and installations of any nature affecting floors, walls,
woodwork, trim, windows, ceilings and equipment or any other physical portion of
the Premises.
3. Tenant shall not at any time occupy any part of the Premises as sleeping or
lodging quarters.
4. Tenant shall not place, install or operate on the Premises or in any part of
the Building any engine, stove or machinery, or conduct mechanical operations or
xxxx thereon or therein, (except for stove, microwave oven and other similar
kitchen appliances in the employee lounge) or place or use in or about the
Premises any explosives, gasoline, kerosene, oil, acids, caustics, or any
flammable, explosive or hazardous material without written consent of Landlord.
5. Landlord will not be responsible for lost or stolen personal property,
equipment, money or jewelry from the Premises regardless of whether such loss
occurs when the area is locked against entry or not, unless due to Landlord's or
its agents' or employees' gross negligence or willful misconduct.
6. No dogs, cats, fowl, or other animals shall be brought into or kept in or
about the Premises, with the exception of seeing eye dogs.
7. Employees of Landlord shall not receive or carry messages for or to any
Tenant or other person or contract with or render free or paid services to any
Tenant or to any of Tenant's Representatives.
8. None of the parking, plaza, recreation or lawn areas, entries, passages,
doors, elevators, hallways or stairways shall be blocked or obstructed or any
rubbish, litter, trash, or material of any nature placed, emptied or thrown into
these areas or such area used by Tenant or Tenant's Representatives at any time
for purpose inconsistent with their designation by Landlord.
9. The water closets and other water fixtures shall not be used for any purpose
other than those for which they were constructed, and any damage resulting to
them from misuse or by the defacing or injury of any part of the Building shall
be borne by the person who shall occasion it. No person shall waste water by
interfering with the faucets or otherwise.
10. No person shall disturb occupants of the Building by the use of any radios,
record players, tape recorders, musical instruments, the making of unseemly
noises or any unreasonable use.
11. Nothing shall be thrown out of the windows of the Building or down the
stairways or other passages.
12. Tenant and Tenant's Representatives shall park their vehicles only in those
parking areas designated by Landlord. Tenant shall furnish Landlord with state
automobile license numbers of Tenant's vehicles and its employees' vehicles
within five (5) days after taking possession of the Premises and shall notify
Landlord of any changes within five (5) days after such change occurs. Tenant
shall not leave any vehicle in a state of disrepair (including without
limitation, flat tires, out of date inspection stickers or license plates) on
the Premises. If Tenant or Tenant's Representatives park their vehicles in areas
other than the designated parking areas or leave any vehicle in a state of
disrepair, Landlord, after giving written notice to Tenant of such violation,
shall have the right to remove such vehicles at Tenant's expense.
13. Parking in a parking garage or area shall be in compliance with all parking
rules and regulations including any sticker or other identification system
established by Landlord. Failure to observe the rules and regulations shall
terminate Tenant's right to use the parking garage or area and subject the
vehicle in violation of the parking rules and regulations to removal and
impoundment. No termination of parking privileges or removal or impoundment of a
vehicle shall create any liability on Landlord or be deemed to interfere with
Tenant's right to possession of its Premises. Vehicles must be parked entirely
within the stall lines and all directional signs, arrows and posted speed limits
must be observed. Parking is prohibited in areas not striped for parking, in
aisles, where "No Parking" signs are posted, on ramps, in cross-hatched areas,
and in other areas as may be designated by Landlord. Parking stickers or other
forms of identification supplied by Landlord shall remain the property of
Landlord and not the property of Tenant and are not transferable. Every person
is required to
Page 1 of 2
24
park and lock his vehicle. All responsibility for damage to vehicles or persons
is assumed by the owner of the vehicle or its driver, unless due to Landlord's
or its agents' or employees' gross negligence or willful misconduct.
14. Movement in or out of the Building of furniture or office supplies and
equipment, or dispatch or receipt by Tenant of any merchandise or materials
which require use of elevators or stairways, or movement through the Building
entrances or lobby, shall be restricted to hours designated by Landlord. All
such movement shall be under supervision of Building Manager and carried out in
the manner agreed between Tenant and Building Manager by prearrangement before
performance. Such prearrangement will include determination by Building Manager
of time, method, and routing of movement and limitations imposed by safety or
other concerns which may prohibit any article, equipment or any other item from
being brought into the Building. Tenant assumes, and shall indemnify Landlord
against, all risks and claims of damage to persons and properties arising in
connection with any said movement.
15. Landlord shall not be liable for any damages from the stoppage of elevators
for necessary or desirable repairs or improvements or delays of any sort of
duration in connection with the elevator service.
16. Tenant shall not lay floor covering within the Premises without written
approval of the Landlord. The use of cement or other similar adhesive materials
not easily removed with water is expressly prohibited.
17. Tenant agrees to cooperate and assist Landlord in the prevention of
canvassing, soliciting and peddling within the Building.
18. Landlord reserves the right to exclude from the Building, between the hours
of 6:00 p.m. and 7:00 a.m. on weekdays and at all hours on Saturday, Sunday and
legal holidays, all persons who are not known to the Building security personnel
and who do not present a pass to the Building signed by the Tenant. Each Tenant
shall be responsible for all persons for whom it supplies a pass.
19. It is Landlord's desire to maintain in the Building the highest standard of
dignity and good taste consistent with comfort and convenience for Tenant and
Tenant's Representatives. Any actions or condition not meeting this high
standard should be reported directly to Landlord. Your cooperation will be
mutually beneficial and sincerely appreciated. Landlord reserves the right to
make such other and further reasonable rules and regulations as in its judgment
may from time to time be necessary, for the safety, care and cleanliness of the
Premises and for the preservation of good order therein.
Page 2 of 2
