BUSINESS LEASE
This Lease, dated January 22, 1997, by and between XXXXXX FAMILY
PARTNERSHIP, as Landlord, and Western Fidelity Funding, Inc., as Tenant.
In consideration of the payment of the rent and the performance of the
covenants and agreements by the Tenant set forth herein, the Landlord does
hereby lease to the Tenant the following described Premises situate in Jefferson
County, in the State of Colorado; the address of which is 0000 Xxxx 00xx Xxxxxx,
Xxxxxxxx, Xxxxxxxx, 00000 (Northeast corner of West 14th Avenue and Brentwood).
Said Premises, with all the appurtenances, are leased to the Tenant from
the date of February 1, 1997, until the date of January 31, 2001 at and for a
rental for the full term of $52,800, payable in monthly installments of $1,100,
in advance, on the 1st day of each calendar month during the term of this lease
payable at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000.
THE TENANT, IN CONSIDERATION OF THE LEASING OF THE PREMISES
AGREES AS FOLLOWS:
1. To pay the rent for the premises described above.
2. To keep the improvements upon the Premises, including sewer connections,
plumbing, wiring and glass in good repair, all at Tenant's expense, and at the
expiration of this Lease to surrender the Premises in as good a condition as
when the Tenant entered the Premises, loss by fire, inevitable accident, and
ordinary wear excepted. To keep all sidewalks on and around the Premises free
and clear of ice and snow, and to keep the entire exterior Premises free from
all litter, dirt, debris and obstructions; to keep the Premises in a clean and
sanitary condition as required by the ordinances of the city and county in which
the property is situate.
3. To sublet no part of the Premises, and not to assign the Lease or any
interest therein without the written consent of the Landlord, which consent
shall not be unreasonably withheld.
4. To use the Premises only as retail sales of used automobiles and for no
other purpose, and to use the Premises for no purposes prohibited by the laws of
the United States or the State of Colorado, or of the ordinances of the city or
town in which said Premises are located, and for no improper or questionable
purposes whatsoever, and to neither permit nor suffer any disorderly conduct,
noise or nuisance having a tendency to annoy or disturb any persons occupying
adjacent premises.
5. To neither hold nor attempt to hold the Landlord liable for any injury
or damage, either proximate or remote, occurring through or caused by the
repairs, alterations, injury or accident on or to the Premises, or adjacent
premises, or other parts of the above Premises not herein demised, or by reason
of the negligence or default of the owners or occupants thereof or any other
person, nor to hold the Landlord liable for any injury or damage occasioned by
the defective electric wiring, or the breakage or stoppage of plumbing or
sewerage upon said premises or upon adjacent premises, whether breakage or
stoppage results from freezing or otherwise; to neither permit nor suffer said
Premises, or the walls or floors thereof, to be endangered by overloading, nor
said Premises to be used for any purpose which would render the insurance
thereon void or the insurance risk more hazardous, nor make any alterations in
or changes in, upon, or about said premises without first obtaining the written
consent of the Landlord therefor, but to permit the Landlord to place a "For
Rent" sign, upon the leased Premises at any time after sixty (60) days before
the end of this Lease.
6. To allow the Landlord to enter upon the Premises at any reasonable hour.
IT IS EXPRESSLY UNDERSTOOD AND AGREED BETWEEN LANDLORD AND
TENANT AS FOLLOWS:
7. All charges for water and water rents are to be paid by Tenant. All
charges for heating and lighting are to be paid by Tenant. Janitorial services
are to be paid by Tenant.
8. No assent, express or implied, to any breach of any one or more of the
agreements hereof shall be deemed or taken to be a waiver of any succeeding or
other breach.
9. If, after the expiration of this Lease, the Tenant shall remain in
possession of the Premises and continue to pay rent without a written agreement
as to such possession, then such tenancy shall be regarded as a month-to-month
tenancy, at a monthly rental, payable in advance equivalent to the last month's
rent paid under this lease, and subject to all the terms and conditions of this
Lease.
10. If the Premises are left vacant and any part of the rent reserved
hereunder is not paid, then the Landlord may, without being obligated to do so,
and without terminating this Lease, retake possession of the said Premises and
rent the same for such rent, and upon such conditions as the Landlord may think
best, making such changes and repairs as may be required, giving credit for the
amount of rent so received less all expenses of such changes and repairs, and
the Tenant shall be liable for the balance of the rent herein reserved until the
expiration of the terms of this Lease.
11. The Landlord acknowledges receipt of a deposit in the amount of $0.00
to be held by the Landlord for the faithful performance of all of the terms,
conditions and covenants of this Lease. The Landlord may apply the deposit to
cure any default under the terms of this Lease and shall account to the Tenant
for the balance. The Tenant may not apply the deposit hereunder to the payment
of the rent reserved hereunder or the performance of other obligations.
12. At the Landlord's option, it shall be deemed a breach of this Lease if
the Tenant defaults (a) in the payment of the rent or any other monetary
obligation herein; or (b) in the performance of any other term or condition of
this Lease. The Landlord may elect to cure such default and any expenses of
curing may be added to the rent and shall become immediately due and payable.
In the event that the Landlord elects to declare a breach of this Lease,
the Landlord shall have the right to give the Tenant three (3) days written
notice requiring payment of the rent or compliance with other terms or
provisions of the Lease, or delivery of the possession of the Premises. In the
event any default remains uncorrected after three (3) days written notice, the
Landlord, at Landlord's option, may declare the term ended, repossess the
Premises, expel the Tenant and those claiming through or under the Tenant and
remove the effects of the Tenant, all without being deemed guilty in trespass or
of a forcible entry and detainer and without prejudice to any other remedies to
which the Landlord may be entitled. If at any time this lease is terminated
under this paragraph, the Tenant agrees to peacefully surrender the Premises to
have the Landlord immediately upon termination, and if the Tenant remains in
possession of the Premises, the Tenant shall be deemed guilty of unlawful
detention of the Premises. The Lessor shall be entitled to recover from the
Tenant all damages by reason of the Tenant's default, including but not limited
to the cost to recover and repossess the premises, the expenses of reletting,
necessary renovation and alteration expenses, commissions and the rent for the
balance of the term of this Lease.
13. In the event the Premises shall become untenantable on account of
damage by fire, floor or act of God, this lease may be thereupon terminated and
the rent apportioned to the date of the occurrence of such damage.
14. In the event of any dispute arising under the terms of this Lease, or
in the event of non-payment of any sums arising under this Lease and in the
event the matter is turned over to an attorney, the party prevailing in such
dispute shall be entitled, in addition to other damages or costs, to receive
reasonable attorneys' fees from the other party.
15. In the event any payment required hereunder is not made within ten (10)
days after the payment is due, a late charge in the amount of five percent (5%)
of the payment will be paid by the Tenant.
16. In the event of a condemnation or other taking by any governmental
agency, all proceeds shall be paid to the Landlord hereunder, the Tenant waiving
all rights to any such payments.
17. This Lease is made with the express understanding and agreement that in
the event the Tenant becomes insolvent, the Landlord may declare this Lease
ended, and all rights of the Tenant hereunder shall terminate and cease.
18. The Landlord and the Tenant further agree to the terms, covenants, and
conditions set forth in the Rider to this Lease hereto attached and incorporated
by this reference.
Tenant shall provide Xxxxxx Family Partnership a copy of their current
dealers license and the renewal of such license each year for the length of the
lease.
Tenant shall notify Xxxxxx Family Partnership immediately of any actions
taken by the Colorado Dealers Administration that would revoke Tenant's dealers
license at 0000 X. 00xx Xxxxxx.
SHOULD ANY PROVISION of this Lease violate any federal, state or local law
or ordinance, that provision shall be deemed amended to so comply with such law
or ordinance, and shall be construed in a manner so as to comply.
This Lease shall be binding on the parties, their personal representatives,
successor and assigns.
When used herein, the singular shall include the plural, and the use of any
gender shall apply to both genders.
Attest: XXXXXX FAMILY PARTNERSHIP,
-------------------- Landlord
By:
----------------------------
Partner
Attest: WESTERN FIDELITY FUNDING, INC.
------------------- Tenant
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Title: President
GUARANTEE
For value received, I, Xxxx Xxxxxx, hereby personally guarantee the payment
of the rent and the performance of the covenants and agreements by the Tenant
between Xxxxxx Family Partnership, and Western Fidelity Funding in the above
Lease covenanted and agreed, in manner and form as in said Lease provided.
Dated:
-----------------------
------------------------------ ------------------------------
ASSIGNMENT AND ACCEPTANCE
For value received --------------------------------------------------,
assignor, hereby assigns all right, title and interest in and to the within
lease unto ----------------------------------, assignee, the heirs, successors
and assigns of the assignee, with the express understanding and agreement that
the said assignor shall be and remain liable for the full payment of the rent
reserved and the performance of all the covenants and agreements made in said
lease by the Tenant therein named, and will pay said rent and fully perform said
covenants and agreements in case said assignee shall fail so to do; and in
consideration of this assignment, the said assignee hereby assumes and agrees to
make all the payments and perform all the covenants and agreements contained in
said lease, by the Tenant therein agreed to be made and performed.
Dated:
-----------------------
------------------------------ ------------------------------
CONSENT OF ASSIGNMENT
Consent to the assignment of the within lease to ------------------, is
hereby given, on the express condition, however, that the assignor shall remain
liable for the prompt payment of the rent and performance of the covenants on
the part of the Tenant as herein mentioned, and that no further assignment of
said lease or sub-letting of the premises or any part thereof shall be made
without further written assent first had thereto.
Dated:
-----------------------
------------------------------ ------------------------------
LANDLORD'S ASSIGNMENT
In consideration of One Dollar, in hand paid, I hereby transfer, assign and
set over to ---------------------------------------------------------------- and
assign my interest in the within lease, and the rent therein reserved.
Dated:
-----------------------
------------------------------ ------------------------------
RIDER TO LEASE
between
XXXXXX FAMILY PARTNERSHIP as Landlord,
and
WESTERN FIDELITY FUNDING, INC., a Corporation, as Tenant,
dated January 22, 1997
Landlord and Tenant further agree as follows:
1. Liability Insurance:
(a) Tenant shall procure and maintain at its own cost at all times
during the term of this Lease and any extensions hereof, hazard, fire and
extended coverage on Tenant's property and the contents of the Premises,
comprehensive general liability insurance, including coverage for bodily injury,
property damage, and personal injury with the following limits of liability:
Five Hundred Thousand and no/100 Dollars, ($500,000.00) each Occurrence combined
single limit for bodily injury, property damage and personal injury. All such
insurance shall be procured from a responsible insurance company or companies
authorized to do business in Colorado, and shall be otherwise satisfactory to
Landlord. All such policies shall name Landlord as an additional insured, and
shall provide that the same may not be canceled or altered except upon thirty
(30) days prior written notice to Landlord. All insurance maintained by Tenant
shall be primary to any insurance provided by Landlord. Tenant shall provide
certificate(s) of such insurance to Landlord upon commencement of die Lease term
and at least thirty (30) days prior to any annual renewal date thereof and upon
request from time to time and such certificates shall disclose that such
insurance names Landlord as an additional insured, in addition to the other
requirements set forth herein. The limits of such insurance shall not, under any
circumstances, limit the liability of Tenant hereunder.
(b) Each party agrees to use its best efforts to include in each of
its policies insuring against loss, damage or destruction by fire or other
casualty a waiver of the insurer's right of subrogation against the other party.
2. Mortgages: It is agreed that this Lease e is subject to and subordinate
to the lien of any trust deeds or mortgages now on, or which at any time may be
made a lien upon the Premises, or the building in which the demised Premises are
situate, and to all advances made or hereafter to be made upon the security
thereof. The Tenant agrees to execute and deliver upon request such further
instrument or instruments, subordinating this Lease to the lien of any, such
trust deeds or mortgages as shall be desired by any mortgagee or proposed
mortgagee.
3. Condemnation:
(a) If the whole of the Premises or so much thereof as to render the
balance unusable by Tenant for the proper conduct of its business shall be taken
under power of eminent domain or transferred under it thereof, then this Lease,
at the option of either Landlord or Tenant exercised by either party giving
notice to the other of such election within thirty (30) days after such
conveyance or taking possession, whichever is earlier, shall forthwith cease and
terminate and the rent shall be duly apportioned as of the date of such taking
or conveyance. No award for any partial or entire taking shall be apportioned
and Tenant hereby assigns to Landlord any award which may be made in such taking
or condemnation, together with any and all rights of Tenant now or hereafter
arising or to the same or any part thereof. Notwithstanding the foregoing,
Tenant shall be entitled to directly from the condemning authority, an award for
its removable trade fixtures, equipment and personal property and relocation
expenses, if any, to the extent Landlord's award is not diminished. In the event
of a partial taking which does not result in a termination of this Lease, rent
shall be reduced in proportion to the reduction in the size of the Premises so
taken and this Lease shall he modified accordingly. Promptly after obtaining
knowledge thereof, Landlord or Tenant, as the case may be, shall notify the
other of any pending or threatened condemnation or taking affecting the Premises
or the building.
(b) If all or any portion of the Premises shall be condemned or taken
for governmental occupancy for a limited period, this Lease shall not terminate
and Landlord shall be entitled to receive the entire amount of any such award or
payment thereof as damages, rent or otherwise. Tenant hereby assigns to Landlord
any award which may be made in such temporary taking, together with any and all
rights of Tenant now or hereafter arising, in or to the same or any part
thereof. Tenant shall be entitled to receive an abatement of rent in proportion
to the reduction in the size of the Premises so taken.
4. Maintenance and Repairs: Landlord shall keep and maintain the roof and
structural components of the leased premises. Except for the Landlord's
obligations, aforesaid, Tenant shall maintain the leased premises in good repair
and working order, including any plumbing, heating, ventilation, air
conditioning and electrical components. Notwithstanding anything to the contrary
contained in this paragraph, it is specifically recognized and agreed that
Tenant shall make all repairs necessitated by the negligence of Tenant's agents
and employees and shall also be responsible for and bear the sole cost of all
ordinary maintenance required in respect to the same. Tenant shall be fully
responsible for all broken and cracked glass in or upon the Premises, excepting
glass damaged by fire or other casualty to the extent covered by Landlord's fire
and extended coverage insurance.
5. Fire and Casualty Insurance: Tenant shall neither bring, nor keep on the
demised Premises anything that will cause an increase in the fire or casualty
insurance premiums on the buildings of which the demised Premises are a part,
nor shall Tenant use the Premises in any manner or for any purpose that will
cause either an increase in insurance premiums, the cancellation of any
insurance coverage, or the refusal of any insurance carrier to insure the
demised Premises against the specified hazards, and Tenant shall not permit the
employees, agents, guests, or subtenants to do any of the acts prohibited to
Tenant herein.
Tenant shall pay on demand, as additional rent, any increase that may
be required in the insurance premiums as a result of any violation of this
provision.
Landlord shall have the option to terminate is Lease if any violation
of this provision results in either the cancellation of any insurance on the
premises or the refusal by an insurance carrier to insure the premises. If
Landlord elects not to terminate this Lease, Landlord may take available legal
action to enjoin Tenant from continuing the Lease or conduct detrimental to the
present insurance rate herein.
6. Indemnity: Tenant shall indemnify Landlord against all expenses,
liabilities, and claims of every kind including reasonable attorneys' fees, by
or on behalf of any person or entity arising out of either (1) a failure by
Tenant to perform any of the terms or conditions of this Lease, (2) any injury
or damage happening on or about the demised premises, (3) failure to comply with
any law of any governmental authority, or (4) any mechanic's lien or security
interest filed against the demised premises or equipment, materials or
alterations of buildings or improvements thereon.
7. Restrictions on Use: Tenant shall neither permit on the premises any
act, sale, or storage that may be prohibited under standard forms of fire
insurance policies, nor use the Premises for any such purpose. In addition, no
use shall be made or permitted to be made that shall result in (1) waste on the
Premises, (2) a public or private nuisance that may disturb the quiet enjoyment
of other tenants in the building, (3) improper, unlawful, or objectionable use,
including sale, storage or preparation, or any materials generating an odor on
the Premises, (4) noises or vibrations that may disturb other tenants. Landlord
shall be the judge of what constitutes undue waste, nuisance, odors, noises and
vibrations, or abandonment of the rise of the Premises for retail sales of used
automobiles. A copy of the Non-Conforming Use Certificate, City of Lakewood, is
attached and incorporated Herein.
8. Public Utilities: Landlord shall not be liable for any failure of a
public or private utility company or municipality to supply any utility (sewer,
water, gas or electrical service) to the demised Premises. Furthermore, any
reduction or termination of said services by utility companies or municipalities
will not alter or terminate the Lease between Landlord and Tenant.
9. Suitability: Tenant acknowledges that neither Landlord nor any agent of
Landlord has made any representations or warranties with respect to the leased
Premises or the building or with respect to the suitability of either for the
conduct of Tenant's business, nor has Landlord agreed to undertake any
modification, alteration or improvement to the Premises except as provided in
this Lease. The taking of possession of the leased premises by Tenant shall
conclusively establish that the Premises and the building are at such time in
satisfactory condition.
10. Alterations and Additions: Tenant shall make no alterations, additions
or improvements to the leased Premises or any part thereof without obtaining the
prior written consent of Landlord, which consent shall not be unreasonably
withheld. All such alterations, additions or improvements shall at the
expiration or earlier termination of this Lease become the property of Landlord
and remain upon and be surrendered with the leased Premises.
11. Late Charge: Tenant shall pay to Landlord a late charge of five percent
(5 %) of any installment of rent not received by Landlord within ten (10) days
after the payment is due.
12. Hazardous Materials: Tenant shall not (either with or without
negligence) (a) cause or permit the escape, disposal, or release of any
biologically or chemically active or other hazardous substances or materials, or
(b) allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for the
storage and use of such substances or materials, or (c) allow any such materials
or substances to be brought onto the Premises except to use in the ordinary
course of the Tenant's business, and then only after written notice is given to
the Landlord of the identity of such substances or materials. The Tenant shall
defend, indemnify and hold harmless the Landlord against and from availability,
claim of liability, or expense arising out of any release of hazardous materials
on the Premises occurring while the Tenant is in possession thereof, or
elsewhere if caused by the Tenant or any person acting under the Tenant.
13. Signs: The Tenant shall have the right to erect from time to time
within the premises such signs as it desires, in accordance with applicable law,
with the approval of the City of Lakewood and Landlord. Landlord's approval
shall not be unreasonably withheld.
14. Effect of Rider: This Rider shall amend the Lease to which this Rider
is attached. In the event of any inconsistencies between this Rider and the
Lease, the provisions of this Rider shall control. Except as may be expressly
amended by this Rider, all of the terms, provisions, and conditions of this
Lease shall be and remain in full force and effect.
15. Total Agreement: This Lease contains the entire agreement between the
parties and cannot be changed or terminated except by written instrument
subsequently executed by the parties hereto. This Lease and the terms and
conditions hereof apply to and are binding on the heirs, legal representatives,
successors, and assigns of both parties.
Landlord:
XXXXXX FAMILY PARTNERSHIP
By:
-------------------------------
Partner
Tenant:
WESTERN FIDELITY FUNDING, INC.
By: /s/Xxxx X. Xxxxxx
-------------------------------
Title: President
