FIRST LEASE AMENDMENT
THIS AGREEMENT is made and entered into this 7th day of March, 1997, by and
between Life Investors Insurance Company of America, hereinafter referred to as
"Lessor", by and through AEGON USA Realty Management, Inc., its duly authorized
agent, located at 4333 Edgewood Road, N.E., Cedar Rapids, IA 52499, and Image
Guided Technologies, Inc., a Colorado corporation, hereinafter referred to as
"Lessee", located at 5700 Flatiron Parkway, Suite 5710, Boulder, Colorado,
80301.
WHEREAS, Lessor and Lessee entered into a Lease, dated January 11, 1996,
for Premises known as Suite 5710 located in the Gemini Building, Boulder,
Colorado, which Lease is incorporated herein by reference; and
WHEREAS, the parties have agreed to expand the Premises through the addition
of 6,726 square feet; and
WHEREAS, the parties have also agreed to extend the term of the Lease; and
WHEREAS, Lessor and Lessee desire to set forth in writing the above
agreement as well as any other changes they have agreed upon as to the Lease.
NOW THEREFORE,
WITNESSETH:
That in consideration of the promises and covenants hereinafter contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties mutually agree to and hereby amend
the Lease as follows:
1. AS TO PARAGRAPH 2: Exhibits "A" and "B" to the Lease shall be deleted and
Exhibits "A", and "B" attached to this Agreement shall be inserted in lieu
thereof.
2. AS TO PARAGRAPH 2: The Premises, as described in Paragraph 2 of said
Lease, is hereby modified as of May 1, 1997 to include the area highlighted on
Exhibits "A" and "B" attached hereto and made a part hereof. Lessee shall
occupy such additional 6,726 square feet, which space is in addition to Lessee's
existing Premises in Suite 5710 and all Lease rents and charges shall be based
on 18,395 square feet through the end of the Lease term.
3. AS TO PARAGRAPH 3: The term of said Lease is hereby extended through
April 30, 2000.
4. AS TO PARAGRAPH 3.1; RENEWAL OPTION: Provided Lessee is: (i) open and
operating its business in the Premises; and (ii) not in default under the Lease,
Lessee shall have the right and option to renew and extend the term of this
Lease for an additional two (2) year period commencing May 1, 2000 and
continuing through April 30, 2002 upon the following terms and conditions:
(a) Lessee shall provide Lessor with written notice, by certified or
registered mail, of its exercise of such option no later than one hundred twenty
(120) days prior to the expiration of the term of this Lease as extended by this
Agreement.
(b) All terms, covenants, conditions and provisions contained in this
Lease shall continue in full force and effect during the renewal period with the
exception of monthly rental, which shall be as set forth below. Lessee's
obligation to pay all additional Lease rents and charges shall be calculated in
accordance with the terms of the Lease during such extended Lease term. Lessee
agrees to accept the Premises in their "as is" condition, subject to repair,
maintenance and replacement obligations under this Lease.
(c) If Lessee exercises its option to extend the term of this Lease
in the manner and within the time provided for herein, subject to adjustments as
otherwise provided in the Lease, the monthly rental shall be as follows:
Commencing May 1, 2000 and continuing through April 30, 2001, the sum of
$184,269.60 per annum payable monthly, in advance, at the rate of $15,355.80 per
month.
Commencing May 1, 2001 and continuing through April 30, 2002, the sum of
$193,483.08 per annum payable monthly, in advance, at the rate of $16,123.59 per
month.
5. AS TO PARAGRAPH 4: Subject to adjustments as otherwise provided in said
Lease, the monthly rental shall be as follows:
Commencing May 1, 1997 and continuing through April 30, 1998, the sum of
$180,551.04 per annum, payable monthly, in advance, at the rate of $15,045.92
per month.
Commencing May 1, 1998 and continuing through April 30, 1999, the sum of
$188,510.04 per annum, payable monthly, in advance, at the rate of $15,709.17
per month.
Commencing May 1, 1999 and continuing through April 30, 2000, the sum of
$196,866.84 per annum, payable monthly, in advance, at the rate of $16,405.57
per month.
6. AS TO PARAGRAPH 7.3: Notwithstanding any of the terms and provisions of
Paragraph 7.3 to the contrary, Lessor shall, at Lessor's sole cost and expense,
provide the following improvements to the Premises:
(i) Insulate the walls of the electrical room located adjacent to the
Premises; and
(ii) Replace broken ceiling tiles and repair existing holes in
the walls of the Premises.
7. AS TO PARAGRAPH 7.3: Provided Lessee is not in default under the terms and
provisions of this Lease, Lessee shall, at Lessee's sole cost and expense,
except for a contribution of $55,185.00 which Lessor agrees to make, remodel the
office areas, install additional electrical work, re-carpet and re-paint the
Premises. Prior to commencement of any work in the Premises, Lessee shall
provide Lessor with one (1) full and completed set of plans and specifications,
drawings, a list of contractors and subcontractors and a construction contract
(collectively the "Plan") which shall be approved by Lessor. It shall be the
Lessee's sole responsibility and Lessee hereby represents and warrants that the
Plans and the Premises after completion of the improvements in accordance with
the Plans shall meet or exceed all applicable federal, state, city and county
ordinances, rules, codes and regulations including the Americans with
Disabilities Act. Lessor's $55,185.00 contribution shall be paid upon Lessee's
full compliance with the following:
(a) Receipt by Lessor of an affidavit of the general contractor or
contractors performing work in Lessee's Premises stating that such work has been
fully completed in compliance with the approved working drawings (plans) and
specifications and that all subcontractors, laborers and material suppliers who
supplied labor and/or material for such work (whose names and addresses shall be
recited in the affidavit) have been paid in full, and that all liens therefore
that have been filed have been discharged of record or waived; and
(b) Receipt by Lessor of a complete notarized release and waiver of
lien with respect to the Premises, executed by each of Lessee's general
contractor, subcontractors, or material suppliers supplying labor and/or
materials for Lessee's work or, in lieu thereof, an attorney's certification
that the lien period for the Lessee's work performed by Lessee in the Premises
has expired and no liens in connection therewith have been filed; and
(c) Receipt by Lessor of Lessee's written acceptance of the Premises
stating that Lessor has completed all of the work required to be performed by
Lessor pursuant to the terms of the approved plans and specifications and that
Lessee reserves no claims, offsets or back-charges or stating those claimed; and
(d) Receipt by Lessor of a completed indemnification by Lessee,
indemnifying Lessor as to any and all claims by contractors, subcontractors or
suppliers of material which may arise as a result of the work performed in the
Premises; and
(e) Receipt by Lessor of a Certificate of Occupancy issued by the
relevant governmental authority; and
(f) Receipt by Lessor of an executed tenant estoppel certificate
confirming the commencement and termination dates of the Lease term, certifying
that this Lease is in full force and effect, that all conditions under the Lease
to be performed have been satisfied and verifying the amount of the Security
Deposit, if any.
8. AS TO PARAGRAPH 8.1: Paragraph 8.1 is deleted in its entirety and the
following language inserted therefor:
"Notwithstanding anything to the contrary set forth in this Lease,
Lessee covenants and agrees that so long as this Lease remains in effect and
during such other times as Lessee occupies the Premises or any part thereof,
Lessee at its sole cost and expense, shall obtain, maintain and keep in full
force and effect as to the Premises:
(a) Commercial General Liability Insurance including Blanket
Contractual, Personal Injury, Fire Legal Liability, Broad Form Liability, Owned,
Non-Owned and Hired Automobile coverages naming Lessee as insured, and Lessor,
any mortgagee of the Building, any Lessee under the Lease of the property on
which the Building is located, and AEGON USA Realty Management, Inc. as Lessor's
agent, as additional insureds, with minimum limits of $1,000,000 combined single
limit for property damage and bodily injury per occurrence for any and all
claims for injury or damage to persons or property or for the loss of life or
damage to persons or property of for the loss of life or of property occurring
upon, in or about the Premises and the public portions of the Building arising
out of or in connection with any act or omission of Lessee, its employees,
agents, contractors, customers and invitees.
(b) All Risk Insurance including without limitation sprinkler
leakage and flood and earthquake. if flood and earthquake exposure exists,
acts of vandalism and malicious mischief on a 100% replacement cost basis
covering all contents, merchandise, inventory, equipment, floor coverings,
fixtures and improvements owned or installed by Lessee. Lessee shall apply
all insurance proceeds attributable to any of the foregoing items to the
repair and restoration thereof. In addition, Lessee shall obtain and keep in
full force and effect during the term of this lease Business Interruption
Insurance with All Risk Perils and such other insurance in such amounts as
Lessor shall reasonably require.
(c) Worker's Compensation Insurance as required by law and Employers'
Liability Coverage for a minimum of $100,000 per occurrence.
(d) The limits of insurance coverages shall not limit the liability
of Lessee. If Lessee fails to procure or maintain insurance coverages as
provided above, Lessor may, but shall not be required to, procure and maintain
coverage at the expense of Lessee."
9. All other Lease charges, as set forth in the Lease, shall be computed and
based in accordance with the provisions of said Lease.
10. Except as amended above, all terms, provisions and covenants contained in
said Lease are in all respects hereby ratified and confirmed in their entirety.
IN WITNESS WHEREOF, the parties hereto have executed this First Lease Amendment
the day and year first above written.
WITNESS: LESSOR: LIFE INVESTORS INSURANCE COMPANY
of AMERICA, by AEGON USA Realty Management, Inc.
its duly authorized agent
/s/ illegible signature /s/ Bill Sindlinger
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Bill Sindlinger, Vice President
WITNESS: LESSEE: IMAGE GUIDED
TECHNOLOGIES, INC.,
a Colorado corporation
/s/ Robert E. Silligman /s/ Jeffrey J. Hiller V.P.
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Jeffrey J. Hiller, Vice President
[Graphical representation of the first floor plan of the premises indicating
space leased by Image Guided Technologies, Inc.]
EXHIBIT A
[Graphical representation of the first floor plan of the premises]
EXHIBIT B