EXHIBIT NUMBER 10.14
AGREEMENT TO LEASE
THIS AGREEMENT TO LEASE ("Agreement"), made this 17 day of August, 1998 by and
between CHEROKEE EQUITES, LLC, a Colorado limited liability company (hereinafter
referred to as "Cherokee Equities"), and Stanford Telecom Corporation, a
Delaware Corporation (hereinafter referred to as "Stanford Telecom"), 0000
Xxxxxxxx Xxxxxx Xxxxxxxxx, XX 00000-0000.
WITNESSETH, THAT:
WHEREAS, Stanford Telecom desires to lease from Cherokee Equities and
Cherokee Equities desires to construct and lease to Stanford Telecom the
premises consisting of an office facility containing approximately 100,000
square feet (the "Improvements"), as described on Exhibit B, to be constructed
on a site on 1500 Garden of the Gods Road in the City of Colorado Springs,
County of El Paso, State of Colorado described on Exhibit A attached hereto (the
"Land") (the Land and Improvements together referred to as the "Premises").
WHEREAS, Cherokee Equities, as Landlord and Stanford Telecom, as Tenant
have entered into a Lease (the "Lease") of even date hereof for the Premises;
and
WHEREAS, Cherokee Equities has agreed with Stanford Telecom to develop and
construct the Improvements on the Land for use by Stanford Telecom; and
WHEREAS, Cherokee Equities and Stanford Telecom desire to supplement the
Lease with respect to certain other terms and conditions relating thereto; and
WHEREAS, it is intended by Cherokee Equities and Stanford Telecom that the
terms and provisions of this Agreement are a supplement to the Lease and are to
survive, where appropriate, the completion of the Improvements and the
commencement of the term of the Lease.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and in consideration of Ten Dollars ($10.00) in hand paid by
Cherokee Equities to Stanford Telecom, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
both Stanford Telecom and Cherokee Equities, it is hereby agreed as follows:
1. The preambles hereto are incorporated into and made a part of this
Agreement
2. Any capitalized terms utilized in this Agreement but not defined herein
shall have the meaning provided in the Lease.
3. This Agreement and the effectiveness of the Lease shall be subject to
and conditioned upon:
(a) Cherokee Equities closing on and obtaining by October 23, 1998 a
general warranty deed to the Land and a survey of the Land and title insured in
a manner satisfactory to Cherokee Equities in its sole discretion and with
condition of title and survey acceptable to Stanford Telecom pursuant to
paragraph 4(b) hereof.
(b) Cherokee Equities obtaining a phase 1, Environmental Site
Assessment of the Land satisfactory to Cherokee Equities and Stanford Telecom
each in its sole discretion pursuant to paragraph 5 hereof.
(c) Satisfactory evidence to Cherokee Equities and Stanford Telecom
that the Premises are properly zoned and that no governmental laws, rules or
regulations are in effect which would affect Stanford Telecom's free and
unencumbered right to conduct the business contemplated.
(d) Cherokee Equities receiving assurances that all permits, licenses
and approvals can be obtained from public authorities (excluding building
permits) which are necessary or deemed necessary by Stanford Telecom to operate
the proposed business on the Premises. Approval of the details pursuant to
paragraph 6 hereof.
Each condition, except Cherokee Equities obtaining a deed for the Premises,
shall be satisfied in the sole and independent discretion of Cherokee Equities
and Stanford Telecom five (5) days prior to the date on which Cherokee Equities
will acquire the Land and if not raised as a written objection to the other by
that time it shall thereafter be waived. Cherokee Equities shall notify Stanford
Telecom by August 31, 1998 of the status of the above conditions as to Cherokee
Equities and the proposed date of acquisition of the land. Cherokee Equities
shall not close upon and acquire the Land prior to such closing date without the
consent of Stanford Telecom. In the event a condition set out herein is not
satisfied or waived, then this Agreement and the Lease shall terminate and be of
no further force and effect, and the parties hereto shall have no further rights
or obligation hereunder.
4. (a) Cherokee Equities represents and warrants that it shall own fee
simple title in the Premises upon the date that Stanford Telecom is put into
possession of the Premises pursuant to the Lease between Cherokee Equities and
Stanford Telecom; that the Premises as of the Rent Commencement Date as defined
in Article 9 hereof, shall not be subject to the lien of any deed of trust,
mortgage, purchase option, right of first refusal or other similar encumbering
instrument having the potential of extinguishing Stanford Telecom's leasehold
interest, and that Cherokee Equities will put Stanford Telecom into complete and
exclusive possession of the Premises as of the Rent Commencement Date.
(b) Cherokee Equities shall provide Stanford Telecom with a copy of
the survey, as well as a copy of Cherokee Equities Title Commitment and any
amendments thereto not less than twenty (20) days prior to closing on the
acquisition of the Land, together with the documents referred to therein as
exceptions to title ofthe Land. Stanford Telecom shall have ten (10) days after
receipt of title and survey or five (5) days prior to the closing, whichever is
earlier, to review said title and survey and make written objections to Cherokee
Equities of any matter contained therein.
Irrespective of the representations, warranties and obligations of Cherokee
Equities contained herein relating to the survey and title, Stanford Telecom may
not object to matters affecting title to the Premises disclosed on said title
commitment or survey and not raised by Stanford Telecom as written objections to
title as permitted herein.
5. (a) Cherokee Equities will conduct or cause to be conducted a due
diligence phase I Environmental Site Assessment (ESA) of the Premises and
provide a report of findings for review by Stanford Telecom. The primary purpose
of the ESA will be to evaluate the potential presence of contamination on the
Premises from current or historical uses within the land or contamination
impacts to properties in the vicinity of the Land that could potentially impact
the Land. At the minimum, the assessment report will address ownership of the
Land, describe and
characterize the Land, provide history and description of surrounding land uses,
sensitive receptors within a 1,000 foot radius of the Land, regulatory issues
and references consulted, including interviews with personnel.
(b) Following a review of the Phase I ESA findings by Stanford
Telecom, additional environmental investigation(s) may be necessary to satisfy
Stanford Telecom of the actual environmental conditions. Stanford Telecom will
provide Cherokee Equities with written notice of its objections to the Phase I
ESA and its concerns (if any) within ten (10) days after receipt of the Phase I
ESA or five (5) days prior to the closing, whichever is earlier, and direct,
before proceeding to purchase and improve the Land, that a due diligence Phase
II ESA be accomplished. Approval of the Phase II ESA shall be in the same
manner. Stanford Telecom shall approve the environmental condition of the Land
as a condition precedent to the obligation of Cherokee Equities to purchase the
Land and proceed with the construction of the improvements described herein. If
Stanford Telecom has not objected to the environmental condition of the Land, or
requested additional environmental testing in writing prior to the date
specified above, it shall be deemed to have approved the environmental condition
of the Land. The approval of the environmental condition of the Land by Stanford
Telecom or by Cherokee Equities shall not constitute any agreement on behalf of
Stanford Telecom or Cherokee Equities to the other with respect to the
remediation of any contamination within, on or under the Land present on or
before the acquisition of the Land by Cherokee Equities.
(c) Cherokee Equities warrants and represents that any use, storage or
transportation of any Regulated Substance that occurs in or on the Premises
during the time period commencing at the acquisition of the Land by Cherokee
Equities and ending at the commencement of the term of the Lease (except by
Stanford Telecom, its agents, employees and fixturing contractors) shall be in
compliance with all applicable Environmental Laws. Cherokee Equities
additionally agrees that it shall take all reasonable measures to avoid any such
release, leak, discharge, spill, disposal or emission of any Regulated Substance
in, on or from the Premises during said period (collectively referred to herein
as "Discharge") and shall promptly, diligently and expeditiously perform any
containment removal or remediation ("cure") of any Discharge in compliance with
the requirements of environmental laws. If a material Discharge does occur that
is not cured, Stanford Telecom shall have the right to terminate the Lease.
(d) If Stanford Telecom objects to Environmental Condition of Land the
Lease shall be terminated and the parties hereto shall have no further rights
hereunder.
6. (a) Preliminary plans, elevations and a description of the work to
complete the improvements are attached as Exhibit C hereto and are approved by
Cherokee Equities, its contractor FCC Construction, Inc. and Stanford Telecom.
Cherokee Equities agrees that within (10) days after the date of this Agreement
to Lease, subject to force majeure, Cherokee Equities shall submit to Stanford
Telecom, for Stanford Telecom's approval, final detailed plans and detailed
specifications ("the Details"). The Details shall be consistent with Exhibit C
and shall include working drawings and design analysis. If, within ten (10) days
after Stanford Telecom receives the Details, Stanford Telecom has not given
written notice of any comments thereon to Cherokee Equities, then such complete
set of the Details shall be deemed approved by Stanford Telecom. If, within ten
(10) days after Stanford Telecom shall have received such Details, Stanford
Telecom shall give Cherokee Equities notice of comments thereon, Cherokee
Equities shall revise the Details in accordance with said comments and resubmit
the Details, as so revised, to Stanford Telecom for approval within twenty (20)
days after receipt of Stanford Telecom's notice of comments. If, within five (5)
days, after Stanford Telecom shall have received such revisions, Stanford
Telecom has not given written objection to such revisions, such shall be
deemed approved by Stanford Telecom. Approval or deemed approval of the Details
by Stanford Telecom shall indicate approval of the facility and its features by
Stanford Telecom but shall not constitute a waiver or acceptance by Stanford
Telecom of any defect therein or in the structural or engineering design set
forth in the Details, the approval of errors therein, or the compliance of said
Details with applicable laws or regulations, nor shall it be deemed the
representation or acknowledgment by Stanford Telecom of any warranty of
workmanship or materials.
(b) Any time after the date hereof and after the Details shall be
approved by Stanford Telecom, and prior to completion of construction, Stanford
Telecom may give written notice to Cherokee Equities of changes it desires in
Exhibit C or in the Details. Changes which do not affect the structure, add to
the cost of construction, do not delay the completion of construction work or
achieving Substantial Completion shall not require the approval of Cherokee
Equities; changes which do affect the structure, cost or which delay the
completion of construction work or achieving Substantial Completion shall
require the approval of Cherokee Equities, which approval Cherokee Equities
agrees it will not unreasonably delay or withhold. Upon receipt of such notice
from Stanford Telecom of any changes that affect the structure, cost or delay
the completion of construction work or achieving Substantial Completion,
Cherokee Equities shall notify Stanford Telecom of the estimate of cost and/or
delay of said change in writing. Stanford Telecom shall notify Cherokee Equities
of its approval or disapproval of the proposed change and/or delay in writing
within three (3) business days of receipt of notice of the Estimated Cost and/or
Delay. The additional cost of any change shall be bome by Stanford Telecom at
the actual cost of the change plus ten percent (10%) overhead and five percent
(5%) profit. Unless approved in writing by Stanford Telecom within said three
(3) business-day period, the change will not be implemented. The work necessary
to construct the Improvements in accordance with the Details, as the same may be
revised and changed as aforesaid, shall be known as "Cherokee Equities Work" or
the "Work".
(c) If Stanford Telecom shall give notice to Cherokee Equities that
extensive changes to the details have been involved, Cherokee Equities will
furnish "as built" drawings. Upon completion of construction Cherokee Equities
shall furnish photographs and operating instructions and all third party
warranties.
(d) Prior to the commencement of Cherokee Equities Work, Cherokee
Equities shall submit to Stanford Telecom for its approval a construction
schedule, and on or before the tenth (10th) day of each month during Cherokee
Equities Work, Cherokee Equities shall submit to Stanford Telecom a revised
construction schedule. Receipt of such schedule(s) by Stanford Telecom shall not
excuse any delay(s) indicated or reflected therein or waive any rights of
Cherokee Equities or Stanford Telecom with respect thereto.
(e) No employee or agent of Stanford Telecom other than Xxxxx Xxxxxxx
or Xxxxx Xxxxxxxxx or a representative designated in writing by one of them for
this purpose, has any authority to approve any plans or specifications or
approve any changes in plans or specifications, and any approval by any other
person shall not be binding upon Stanford Telecom unless such approval shall be
in writing.
(f) Cherokee Equities has proposed and Stanford Telecom has agreed to
a fixed Base Rent under the Lease based upon the preliminary plans, elevations
and description of the Work as set out in Exhibit C to this Agreement to Lease
and the allowances established on Exhibit D hereto for certain elements of the
Work. The project costs include allowances for the items listed on Exhibit D. In
the event the actual items of the cost of the Work shall vary upward or downward
from the anticipated cost of the Work on account of changes made by Stanford
Telecom to the preliminary plans, elevations and description of the Work
(Exhibit C), or in the approval of the Details, or the actual cost of allowance
items is more or less than the allowance amounts shown in Exhibit D, then
Cherokee Equities and Stanford Telecom agree to modify upward or downward as
appropriate the Base Rent figures established in the Lease in a manner
consistent with Section 6.(b) above, and to amend the Lease to provide for the
revised and adjusted rent as established herein.
(g) Cherokee Equities has agreed that the area of Stanford Telecom's
building, measured from exterior walls shall be not less than 100,000 square
feet. In the event the area of the building is less than 100,000 square feet,
the initial Base Rent as provided in the Lease, shall be reduced at the rate of
seven dollars and seventeen cents ($7.17) for each square foot less than 100,000
square foot of area with the similar adjustment in reduction being made to the
rental rate increases in the Lease.
(h) Promptly upon execution hereof, Cherokee Equities shall enter
into a written construction contract or design/build agreement with FCC
Construction, Inc. (the "Contractor") (the "Construction Contract") for the
construction of the Improvements. Such contract shall provide for a warranty
from the Contractor (i) covering any defects due to faulty materials or
workmanship which appear within a period of one (1) year from the date of
substantial completion of construction of the Improvements, (ii) covering latent
structural defects due to faulty materials or workmanship which appear within a
period of ten (10) years from the date of substantial completion of construction
of the Improvements; and (iii) shall also provide that Stanford Telecom is the
third-party baneficiary of any and all warranties received from materials and
equipment suppliers furnishing materials and equipment for the construction.
Cherokee Equities shall cause Contractor to obtain and provide warranties from
materials and equipment suppliers that are no less favorable to Stanford Telecom
than the most favorable warranties of substantially similar equipment or
materials obtained by Contractor from such suppliers at the relevant time or
times, provided Contractor shall have no obligation to purchase such warranties
or extended warranties except as provided in the Details. Cherokee Equities
shall provide Stanford Telecom with a list, and copies, of all warranties for
the building and systems at the commencement of the term of the Lease. Such
warranties shall be normal and customary warranties. Repairs made by or for
Cherokee Equities pursuant to the warranties from the Contractor shall be
performed and paid for such that no liens or encumbrances shall result
therefrom. Cherokee Equities shall indemnify Stanford Telecom from and against
injury to persons including death and damage to property of others (specifically
excluding from this indemnity the property and employees of Stanford Telecom and
entities affiliated with Stanford Telecom) to the extent resulting from or
arising out of structural defects due to faulty materials or workmanship for
which warranty is provided herein. In the event of a default or failure by
Cherokee Equities' Contractor to perform the one (1) year warranty for faulty
materials or workmanship or the five (5) year warranty for mechanical defects
due to faulty materials or workmanship, Cherokee Equities shall be obligated to
remedy such defect.
7. Construction of Cherokee Equities Work shall be done by or on behalf
of Cherokee Equities in a good and workmanlike manner prosecuted to completion
with due diligence and performed in accordance with all applicable laws,
ordinances, rules, regulations and requirements of all governmental authorities
having jurisdiction over the Premises including, but not limited to, the
Americans with Disabilities Act. Before commencing any work, Cherokee Equities
shall obtain, or cause to be obtained, workers' compensation insurance covering
all persons employed in connection with Cherokee Equities Work and with respect
to whom death or bodily injury claims could be asserted against Cherokee
Equities and/or Stanford Telecom, and general liability insurance insuring
Cherokee Equities and Stanford Telecom against any liability that may be
incurred as a result of any of Cherokee Equities Work in, to or upon the
Premises. A certificate of insurance shall be delivered to Stanford Telecom upon
written request. Cherokee Equities shall discharge all liens filed against the
Premises arising out of Cherokee Equities Work, and shall indemnify Stanford
Telecom against any loss, cost or
expense arising on account of or in connection with the actual performance of
Cherokee Equities Work or mechanic's liens. Cherokee Equities shall procure and
pay for all permits, licenses and authorizations required in connection with the
construction of the Improvements. Upon completion of the Improvements, Cherokee
Equities shall furnish Stanford Telecom with evidence that the Improvements are
free from all mechanics' and materialman's liens, which shall be in the form of
lien waivers from all contractors, subcontractors, suppliers and materialman
performing such construction work, or the furnishing of a bond as provided by
law if such liens are filed.
8. (a) "Substantial Completion" shall mean the date of completion of
construction of the work in such fashion, excluding issuance of a permanent
certificate of occupancy, as to enable Stanford Telecom, upon performance of any
work to be done by Stanford Telecom and the installation of its equipment,
fixtures and inventory, to open its office for business in a normal manner, but
not necessarily including completion or correction of all normal "punch list"
items as certified by Cherokee Equities architect or other qualified
representative. Cherokee Equities shall keep Stanford Telecom informed from time
to time in writing of the anticipated date of Substantial Completion of the
Improvements. Stanford Telecom may, at its expense, retain an independent
architect who shall from time to time visit the Improvements and become familiar
with the Details.
Such architect shall have the right to inspect the site on the date
Cherokee Equities architect or other qualified representative intends to certify
such Substantial Completion. Upon Substantial Completion, Cherokee Equities, as
Landlord, and Stanford Telecom, as Tenant, shall execute and deliver an
amendment to the Lease for the Premises to make any changes to the Base Rent
under paragraph 6 hereof to reflect Stanford Telecom requested changes, any
adjustment on account of allowance items or the rent reduction applicable if the
final size of Tenant's Building is less than 100,000 square feet.
(b) Within thirty (30) days after Substantial Completion, Stanford
Telecom shall issue to Cherokee Equities Stanford Telecom's written "punch list"
of particulars in which the Improvements are not in accordance with the Details
(the "Punch List"), and Cherokee Equities shall diligently and expeditiously
materially satisfy each item on the Punch List. Cherokee Equities shall complete
the Punch List to Stanford Telecom's reasonable satisfaction within thirty (30)
days after its issuance or such additional time as reasonably is necessary to
complete such Punch List items provided that Cherokee Equities is proceeding
with due diligence. Except for completion of the Punch List items, and except
for the warranties contained herein, Stanford Telecom accepts the Premises in
its as-is condition.
(c) Stanford Telecom's architect and Cherokee Equities architect or
other qualified representative shall concur in the determination of Substantial
Completion and if unable to do so a third architect shall be retained to make
the determination and if Substantial Completion has not been achieved the
requirements therefor. This independent architect shall be either agreeable to
the parties or if the parties do not agree, selected by the president of the
local association of architects. The charges for the third architect shall be
paid by the party whose determination of Substantial Completion differs from the
determination of the independent architect.
9. The Term of the Lease shall commence on the "Rent Commencement Date,"
which shall occur on the earlier of the following events:
(a) The date on which Stanford Telecom shall have received a
certificate of occupancy for the Premises, if required, executed by appropriate
public authority, together with all permits and authorizations permitting lawful
occupancy of the Premises from the City of Colorado
Springs; provided, however, that all of the work has reached Substantial
Completion as agreed and consented to by Stanford Telecom's architect, if any,
and if no certificate of occupancy is required, upon Substantial Completion; or
(b) The date Stanford Telecom shall have commenced using the Premises
but no earlier than Substantial Completion; or
(c) 10 days after Substantial Completion, if any delay in attaining
the Certificate of Occupancy is a result of Stanford Telecom's actions,
inactions, or work.
10. At its own risk and expense, Stanford Telecom shall have the right,
prior to and during progress of construction, from time to time, to enter upon
the Premises in order to install its furniture, fixtures, appliances and
equipment and for purposes incidental thereto including, but not limited to,
installation of telephone, computer and other communication lines, without
obligation to pay any sum of money as rent or for use and occupation prior to
the date set out therefor herein; provided. however, that Stanford Telecom shall
have given Cherokee Equities at least two (2) days prior written notice of such
entry and such entry shall not unreasonably interfere with nor damage the
construction of the Improvements on the Premises by Cherokee Equities; and
provided, further, that, prior to such entry, Stanford Telecom shall cause
Cherokee Equities and its contractor to be named as additional insureds on
liability insurance to be maintained by Stanford Telecom at its own expense with
such coverages, limits of liability, term, and carriers as Cherokee Equities
shall reasonably require. Stanford Telecom shall provide evidence of such
coverage to Cherokee Equities and will also provide evidence workers'
compensation insurance in statutory limits and employer's liability with limits
of liability of $500,000.00.
11. (a) Cherokee Equities shall, as soon as practicable, but not later
than ten (10) business days following acquisition of the land by Cherokee
Equities (unless such date is extended pursuant to force majeure as deemed
herein), commence (either by actual construction or by engineering design work
preparatory thereto) and thereafter diligently prosecute to completion
construction of the Improvements, in a good and workmanlike manner and in
accordance with the Details.
(b) Cherokee Equities shall obtain Substantial Completion on or before
May 15, 1999, subject to force majeure. If Substantial Completion does not occur
on or before May 15, 1999, subject to force majeure, Cherokee Equities shall be
liable to Stanford Telecom for liquidated damages in the amount of five hundred
dollars ($500.00) per calendar day as Stanford Telecom 's sole and exclusive
remedy on account of such failure to obtain Substantial Completion. In addition,
if Substantial Completion does not occur on or before June 15, 1999, subject to
force maieure, Cherokee Equities shall be liable to Stanford Telecom for
liquidated damages in the amount of one thousand dollars ($1,000.00) per
calendar day after June 15, 1999, as Stanford Telecom 's sole and exclusive
remedy on account of such failure to obtain Substantial Completion. In addition,
if Substantial Completion does not occur on or before August 15, 1999, subject
to force majeure, at Stanford Telecom's sole option, by notice in writing to
Cherokee Equities within ten (10) days, Stanford Telecom shall have the option
to cancel the lease in which event the parties shall be relieved from all
further obligations under the lease and premises.
12. (a) The time for performance as provided herein shall be extended
for the number of days equal to such delays caused by an event of "force
majeure," as hereinafter defined.
(b) "Force majeure" shall mean events beyond the control of Cherokee
Equities, including, without limitation, fire, flood, tornado, or earthquake,
war, riot, insurrection, strike, lockout, boycott or embargo, changes ordered by
Stanford Telecom to the Improvements which result in delays, acts of God,
unavoidable casualties, labor disputes, and unusual delays in transportation,
unavailability of materials, adverse weather conditions not reasonably
anticipatable, delays caused by concealed conditions, delays caused by Stanford
Telecom, its employees, agents, or separate contractors, any delay in execution
of this Agreement to Lease beyond August 18, 1998, delay beyond October 30,
1998, in securing final unappealable zoning and platting for the land necessary
for the proposed Improvements, delay not caused by Cherokee Equities beyond
October 30, 1998, in Closing Cherokee Equities purchase of the Land, delay
beyond November 6, 1998, in the issuance of a final and complete building
permit, provided that Cherokee Equities or its agents or representatives
diligently and in good faith attempt to make filings for such preliminary and
final building permits as promptly as practicable after approval of the details
and that any submittal therefor required to be made by Cherokee Equities has
been made in proper form, delays in the issuance of any other permits,
authorizations, certificates, or approvals required to commence construction of
Cherokee Equities Work, provided that any submittal therefor required to be made
by Cherokee Equities has been made as promptly as practicable and in proper
form, or any other cause beyond Cherokee Equities' reasonable control, which is
similar to the foregoing.
(c) Except for events of force majeure occurring as the result of
delay in the execution of this Agreement to Lease, rezoning the land, in Closing
on the purchase of the Land, and issuance of permits beyond the dates
established therefor in subparagraph (b) above for which notice shall not be
required, any party who asserts the occurrence of force majeure shall give
Stanford Telecom written notice within ten (10) working days after the
commencement of a delay caused by an event of force majeure, and any party
making claim therefor shall give a supplemental notice of the period of time
such delay caused by an event of force majeure is expected to last, otherwise
any right of claim therefor shall be deemed waived. The parties hereto shall
take all reasonable actions to assure resumption of normal performance under
this Agreement to Lease as soon as possible after the end of the force majeure
event.
13. It is expressly recognized that Cherokee Equities may or may not
cause to be prepared following completion of construction an "as built" survey
of the Premises, and that if such a survey were to be prepared, minor variations
in measurements might be evidenced from the dimensions shown on Exhibit B due to
topographic or construction variables. Stanford Telecom 's failure to request
that such an "as built" survey be prepared, or to reasonably object to minor
dimension deviations between the Premises as built and Exhibit B shall in no way
invalidate Exhibit B or constitute a waiver by Stanford Telecom of its rights
under this Paragraph 13, but rather Exhibit B shall ipso facto be amended to
incorporate such minor dimension deviations therein.
14. Cherokee Equities agrees that on the Rent Commencement Date the
Premises shall be connected to the electric and gas lines serving the
municipality wherein the Premises are located and to the water and sewer systems
of such municipality. Cherokee Equities agrees that on the Rent Commencement
Date (i) all such water, electricity and gas shall be in such amounts per unit
of time as shall be required by the Details (including, without limitation,
sufficient water for air conditioning) and (ii) all such sewerage disposal
facilities shall be of such capacity as shall be required by the Details. If for
any reason the Premises cannot be connected to such municipality's water and/or
sewer systems on the Rent Commencement Date, Cherokee Equities shall then
provide water and/or sewer systems which (i) shall be of such capacity as shall
be required by the Details, (ii) shall be subject to the prior written approval
of Stanford Telecom which shall not be unreasonably withheld, delayed, or
conditioned and (iii) shall meet the requirements of all public authorities
having jurisdiction with respect thereto. Cherokee Equities shall not take, or
permit any person claiming under Cherokee Equities to take, any
action which shall unreasonably interrupt, or interfere with, any electric, gas,
water, sewerage or telephone service to the Premises. Stanford Telecom agrees to
save Cherokee Equities harmless from, and indemnify Cherokee Equities against,
all charges for utilities services consumed in the Premises from the Rent
Commencement Date until expiration of the term or any holding over thereafter.
15. The provisions of this Agreement are a supplement to the Lease and
shall survive Stanford Telecom's entering into possession upon the commencement
of the Lease Term for the periods of time herein contemplated by the separate
covenants and agreements. The Lease and this Agreement are expressly made
contingent each on the other and shall constitute the reciprocal obligations of
the parties. In the event of any inconsistency between the provisions of this
Agreement and the provisions of said Lease, the provisions of this Agreement
shall control and be intended to be the understanding of the parties hereto.
16. Any notice or demand which either party hereto either is required to
or may desire to serve upon the other, must be in writing, and shall be
sufficiently served if (i) personally delivered, (ii) sent by registered or
certified mail, postage prepaid, or (iii) sent by recognized commercial
overnight carrier, and addressed, in the instance of Cherokee Equities, to:
Cherokee Equities, LLC
Attn: Xxxxx Xxxxx Xxxxxxxx
0000 Xxxx Xxxxxxx Xxxx.
Xxxxxxxx Xxxxxxx, XX 00000
with a copy to:
Sparks Dis, P.C.
Attn: Mr. Xxxxx Xxxxxx
000 X. Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
in the instance of Stanford Telecom, to:
Stanford Telecom Corporation
0000 Xxxxxxxxxx Xxxx.
Xxxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
with a copy to:
Stanford Telecom Corporation
Attn: Mr. Xxxxx Xxxxxxxx,
Vice President of Administration
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
or any other address which Stanford Telecom may be notified of in writing by
Cherokee Equities, and or such other address which Cherokee Equities may be
notified in writing by Stanford Telecom.
Such notice shall be deemed to have been served on the day of the time of
the mailing thereof or upon receipt in the event of personal service or on the
day of delivery to the overnight courier; provided, however, that should such
notice pertain to the change of address to either of the parties hereto, such
notice shall be deemed to have been served upon receipt thereof by the party to
whom such notice is given.
17. If any term or provision of this Agreement shall to any extent be
held invalid or unenforceable, the remaining terms and provisions of this
Agreement shall not be affected thereby, but each term and provision of this
Agreement shall be valid and be enforced to the fullest extent permitted by law.
This Agreement shall be construed and enforced in accordance with the laws of
the State in which the Premises is located.
18. Each party shall pay the other party's reasonable legal costs and
attorney's fees incurred if such party prevails in litigation or arbitration
enforcing any covenants, terms or conditions of this Ayeement.
l 9. Cherokee Equities and Stanford Telecom, and the persons signing for
them, each represent that the execution and delivery of this Agreement, the
Lease and the performance of all of the covenants and agreements contained
herein and therein, have been duly authorized, ratified and confirmed by all
necessary corporate action on the part of each of said parties, and that said
parties are validly existing and in good standing.
20. This Agreement and the Lease between the parties hereto with respect
to the Premises represent the entire agreement between the parties hereto and no
modification of this Agreement or the Lease, and no waiver of the terms of
either of said instruments, shall be effective unless made in writing and duly
executed by the parties hereto.
21. The covenants and agreements herein contained shall bind and inure to
the benefit of Cherokee Equities, its successors and assigns, and Stanford
Telecom, its permitted successors and assigns.
22. In the event of a conflict between the terms of this Agreement to
Lease and the Lease, this Agreement to Lease will prevail.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed as of the day and year first above written.
WITNESS: CHEROKEE EQUITIES, LLC
By:
Name:
Its:
WITNESS: STANFORD TELECOM CORPORATION
By:
