Exhibit 10.69.1
PARKWAY POINT
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COMMERCIAL LEASE AGREEMENT
COMMERCE SQUARE ASSOCIATES, L.L.C.
A Colorado limited liability company
"LANDLORD or LESSOR"
AND
I.E.S. ELECTRONICS INDUSTRIES U.S.A., INC.,
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a Delaware corporation
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"TENANT or LESSEE"
Date: September 24, 1997
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(For reference purposes only)
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TABLE OF CONTENTS
Page
1. Basic Lease Terms........................................................................... 1
2. Rent........................................................................................ 2
3. Occupancy and Use........................................................................... 4
4. Utilities and Service....................................................................... 6
5. Repairs and Maintenance..................................................................... 7
6. Alterations and Improvements................................................................ 8
7. Casualty and Insurance...................................................................... 9
8. Condemnation................................................................................ 12
9. Assignment or Sublease...................................................................... 13
10. Liens....................................................................................... 15
11. Default and Remedies........................................................................ 15
12. Relocation.................................................................................. 17
13. Definitions................................................................................. 17
14. Miscellaneous............................................................................... 18
15. Amendment and Limitation
of Warranties.............................................................................. 21
16. Other Provisions............................................................................ 21
17. Signatures.................................................................................. 22
Exhibit A - Rules and Regulations
Exhibit B - Description of the Leased Premises
Exhibit C - Work Letter
Exhibit D - Agreement for Signage
Exhibit E - Agreement for Parking
Exhibit F - Commencement of Lease Term and Estoppel Certificate
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COMMERCIAL LEASE AGREEMENT
ARTICLE 1
BASIC LEASE TERMS
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1.0 Basic Lease Terms
1.01 Parties. This lease agreement ("Lease") is entered into by and between
the following Lessor and Lessee:
COMMERCE SQUARE ASSOCIATES L.L.C. ("Landlord or Lessor") a
Colorado limited liability company
I.E.S. ELECTRONICS INDUSTRIES U.S.A., INC. ("Tenant or Lessee") a
Delaware corporation
1.02 Leased Premises. In consideration of the rents, terms, provisions and
covenants of this Lease, Lessor hereby leases, lets and demises to
Lessee the following described premises ("Leased Premises" or
"Premises"):
approximately 5,700 square feet
0000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxx 00000
1.03 Term. Subject to and upon the conditions set forth herein, the term of
this Lease shall commence on October 1, 1997 and shall terminate
thirty-six (36) months thereafter on September 30, 2000.
1.04 Base Rent and Security Deposit. Lessee shall pay to Lessor Total Base
Rent of One Hundred Thirty-Six Thousand Eight Hundred and 00/100
Dollars ($136,800.00) payable as follows:
----------------- --------------------------- ---------------------- --------------------- ---------------------
BASE RENTAL MONTHLY
RATE/RSF/YR BASE RENT TOTAL BASE RENT FOR
PERIOD DATES NNN NNN PERIOD NNN
----------------- --------------------------- ---------------------- --------------------- ---------------------
12 months 10/1/1997 - 9/30/1998 $8.00 $3,800.00 $45,600.00
----------------- --------------------------- ---------------------- --------------------- ---------------------
12 months 10/1/1998 - 9/30/1999 $8.00 $3,800.00 $45,600.00
----------------- --------------------------- ---------------------- --------------------- ---------------------
12 months 10/1/1999 - 9/30/2000 $8.00 $3,800.00 $45,600.00
----------------- --------------------------- ---------------------- --------------------- ---------------------
Security Deposit is Three Thousand Eight Hundred and 00/100 Dollars
($3,800.00),
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1.05 Addresses.
Lessor's Address: Lessee's Address:
Integrated Property Management, Inc. I.E.S. ELECTRONICS INDUSTRIES U.S.A., INC.
000 Xxxxxxx Xxxxxx, Xxxxx 000 0000 Xxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000 Xxxx Xxxx, Xxxxxxxx 00000
1.06 Permitted Use. General office and warehouse use for a high tech computer
software and hardware design and development company.
ARTICLE 2
RENT
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2.0 Rent
2.01 Base rent. Lessee agrees to pay monthly as base rent during the term
of this Lease the sum of money set forth in section 1.04 of this
Lease, which amount shall be payable to Lessor at the address shown
above. One monthly installment of rent shall be due and payable on the
date of execution of this Lease by Lessee for the first month's rent
and a like monthly installment shall be due and payable on or before
the first day of each calendar month succeeding the commencement date
or completion date during the term of this Lease; provided, if the
commencement date or the completion date should be a date other than
the first day of a calendar month, the monthly rental set forth above
shall be prorated to the end of the calendar month, and all succeeding
installments of rent shall be payable on or before the first day of
each succeeding calendar month during the term of this Lease. Lessee
shall pay, as additional rent, all other sums due under this Lease.
2.02 Operating Expenses. Lessee shall also pay as additional rent Lessee's
pro rata share of the operating expenses of Lessor for the building
and/or project of which the leased premises are a part. Lessor may
invoice Lessee monthly for Lessee's pro rata share of the estimated
operating expenses for each calendar year, which amount shall be
adjusted each year based upon anticipated operating expenses. Within
nine (9) months following the close of each calendar year, Lessor
shall provide Lessee and
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accounting showing in reasonable detail all computations of additional
rent due under this section. In the event the accounting shows that
the total of the monthly payments made by Lessee exceeds the amount of
additional rent due by Lessee under this section, the accounting shall
be accompanied by a refund. In the event the accounting shows that the
total of the monthly payments made by Lessee is less than the amount
of additional rent due by Lessee under this section, the accounting
shall be accompanied by an invoice for the additional rent.
Notwithstanding any other provision in the Lease, during the year in
which this Lease terminates, Lessor, prior to the termination date,
shall have the option to invoice Lessee for Lessee's pro rata share of
operating expenses based upon the previous year's operating expenses.
If this Lease shall terminate on a day other than the last day of
calendar year, the amount of any additional rent payable by Lessee
applicable to the year in which the termination shall occur shall be
prorated on the ratio that the number of days from the commencement of
the calendar year to and including such termination date bears to 365.
Lessee shall have the right, at its own expense and within a
reasonable time, to audit Lessor's books relevant to the additional
rent payable under this section. Lessee agrees to pay any additional
rent due under this section within ten days following receipt of the
invoice or accounting showing the additional rent due. The current
estimate of Lessee's share of operating expenses is Two and 95/100
Dollars ($2.95) per square foot of the Leased Premises which shall be
paid in addition to and along with base rent. Lessee's prorated share
of the projects operating expenses shall be 6.31%.
2.03 Definition of Operating Expenses. The term "operating expenses"
includes all expenses incurred by Lessor with respect to the
maintenance and operation of the building of which the Leased Premises
are a part, including, but not limited to, the following: maintenance,
repair and replacement costs; security; management fees, wages and
benefits payable to employees of Lessor whose duties are directly
connected with the operation and maintenance of the building; all
services, utilities, supplies, repairs, replacements or other expenses
of maintaining and operating the common parking and plaza areas; the
cost, including interest, amortized over its useful life, or the costs
(amortized over their useful life) of capital improvements are
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structural repairs and replacements made in or to the building
(including finance costs) in order to conform to any applicable laws,
ordinances, rules, regulations, or orders of any governmental or
quasi-governmental authority having jurisdiction over the building;
the cost, including interest, amortized over its useful life, of
installation of any device or other equipment which improves the
operating efficiency of any system with the Leased Premises and
thereby reduces operating expenses; all other expenses which would
generally be regarded as operating and maintenance expenses which
would reasonably be amortized over a period not to exceed five (5)
years; 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 of which the Leased Premises are a part during the term of
this Lease; and all insurance premiums Lessor is required to pay or
deems necessary to pay, including public liability insurance, with
respect to the building. The term operating expenses does not include
the following: repairs, restoration or other work occasioned by fire,
wind, the elements or other casualty; income and franchise taxes of
Lessor; expenses incurred in leasing to or procuring of Lessees,
leasing commissions, advertising expenses and expenses for the
renovating of space for new Lessees; interest or principal payments on
any mortgage or other indebtedness of Lessor, compensation paid to any
employee of Lessor above the grade of property manager; and
depreciation allowance or expense; or operating expenses which are the
responsibility of Lessee.
2.04 Late Payment Charge. Other remedies for nonpayment of rent
notwithstanding, if the monthly rental payment is not received by
Lessor on or before the fifth (5th) day of the month for which the
rent is due, or if any other payment due Lessor by Lessee is not
received by Lessor on or before the fifth (5th) day of the month next
following the month in which Lessee was invoiced, a late payment
charge of five percent (5%) of such past due amount shall become due
and payable in addition to such amounts owed under this Lease.
2.05 Interest Due. If any amount due from Lessee to Lessor hereunder
whether it be rental or other charges, is not paid within five (5)
days of when due, Lessee shall pay
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Lessor an amount equal to eighteen percent (18%) per annum of the
total amount due Lessor, from the original due date until paid.
Interest charges shall be in addition to, and not in substitution of,
late charges imposed. Notwithstanding the foregoing, and no more than
two (2) times in a given twelve (12) month period under this Lease,
(but not more often than a total of four (4) times over the term of
the Lease), Landlord will give Tenant written notice that a payment is
late and provide Tenant with an opportunity to make such late payment
without being considered to be in default of the Lease, and without
such payment being subject to a late payment charge or interest, as
long as (i) such late payment is received not more than seven (7) days
after the date notice is given; and (ii) (except for the payment of
rent as previously described in this paragraph), at no time since the
Commencement Date has there been more than one (1) event of default on
any twelve (12) month period under this Lease.
2.06 Increase in Insurance Premiums. If any increase in any insurance
premiums paid by Lessor for the building is caused by Lessee's use of
the Leased Premises in a manner other than as set forth in section
1.06, or if Lessee vacates the Leased Premises and causes an increase
in such premiums, then Lessee shall pay as additional rent the amount
of such increase to Lessor.
2.07 Security Deposit. The security deposit set forth above shall be held
by Lessor for the performance of Lessee's covenants and obligations
under this Lease, it being expressly understood that the deposit shall
not be considered an advance payment of rental or a measure of
Lessor's damage in case of default by Lessee. Upon the occurrence of
any event of default by Lessee or breach by Lessee of Lessee's
covenants under this Lease, Lessor 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 Lessor as a result
of the event of default or breach of covenant, and any remaining
balance of the security deposit is so used or applied, Lessee shall
upon ten (10) days written notice from Lessor, deposit with Lessor by
cash or cashier's check an amount sufficient to restore the security
deposit to its original amount.
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2.08 Holding Over. In the event that Lessee does not vacate the Leased
Premises upon the expiration or termination of the Lease, Lessee shall
be a tenant-at-will for the holdover period and all of the terms and
provisions of this Lease shall be applicable during that period,
except that Lessee shall pay Lessor as base rental for the period of
such holdover an amount equal to two times the base rent which would
have been payable by Lessee had the holdover period been a part of the
original term of this Lease. Lessee agrees to vacate and deliver the
Leased Premises to Lessor upon Lessee's receipt of notice from Lessor
to vacate. The rental payable during the holdover period shall be
payable to Lessor on demand. No holding over by Lessee, whether with
or without the consent of Lessor, shall operate to extend the term of
this Lease.
ARTICLE 3
OCCUPANCY AND USE
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3.0 Occupancy and Use
3.01 Use. Lessee warrants and represents to Lessor that the Leased Premises
shall be used and occupied only for the purpose as set forth in
section 1.06. Lessee shall occupy the Leased Premises, conduct its
business and control its agents, employees, invitees and visitors in
such a manner as is lawful, reputable and will not create a nuisance.
Lessee 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 Lessee in its normal business operations or Lessor in its
management of the building.
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Lessee shall neither permit any waste on the Leased Premises nor allow
the Leased Premises to be used in any way which would, in the opinion
of Lessor, be extra hazardous on account of fire or which would in any
way increase or render void the fire insurance on the building. Lessee
warrants to Lessor that the insurance questionnaire (filled out by
Lessee, signed and presented to Lessor prior to the executing of this
Lease, accurately reflects Lessee's original intended use of the
Leased Premises. The insurance questionnaire is made a part of this
Lease by reference as though full copied herein. If at any time during
the term of this Lease the State Board of Insurance or other insurance
authority disallows any of Lessor's sprinkler credits or imposes an
additional penalty or surcharge in Lessor's insurance premiums because
of Lessee's original or subsequent placement of use of storage racks
or bins, method of storage or nature of Lessee's inventory or any
other act of Lessee, Lessee agrees to pay as additional rent the
increase (between fire walls) in Lessor's insurance premiums.
3.02 Signs. No sign of any type or description shall be erected, placed or
painted in or about the Leased Premises or project except those signs
submitted to Lessor in writing and approved by Lessor in writing, and
which signs are in conformance with Lessor's sign criteria established
for the Project.
3.03 Compliance with Laws, Rules, and Regulations. Lessee shall not use the
Premises or permit anything to be done in or about the Premises which
will in any way conflict with any law, stature, ordinance or
governmental rule or regulation now in force or which may hereafter be
enacted or promulgated. Lessee shall at its sole cost and expense
promptly comply with all laws, statues, ordinances or governmental
rules, regulations and requirements now in force or which may
hereafter be in force and with the reasonable requirements of any
insurer, underwriter or other similar entity now or hereafter relating
to or affecting the condition, use or occupancy of the Premises,
excluding structural changes not related to or affected by Lessee's
improvements or acts. Lessee shall be solely responsible for
compliance with the provisions of the Americans with Disabilities Act
(the "ADA") as it applies to Lessee's business and the Premises.
Lessor shall be solely responsible for compliance with the provisions
of the ADA as it applies to the Building. Lessor makes no warranty
express of implied that Lessee's intended use of the Premises is
suitable or allowable under any applicable governmental code, statue
or regulation. Lessee, at Lessee's sole cost and expense, shall comply
with all laws, ordinances,
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orders, rules and regulations of state, federal, municipal or their
agencies or bodies having jurisdiction over use, condition and
occupancy of the Leased Premises.
Lessee will comply with the rules and regulations of the building
adopted by Lessor which are set forth on a schedule attached to this
Lease. Lessor 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 operation or use of the building or the Leased Premises. All
changes and amendments to the rules and regulations of the building
will be sent by Lessor to Lessee in writing and shall thereafter be
carried out and observed by Lessee.
3.04 Warranty of Possession. Lessor warrants that it has the right and
authority to execute this Lease, and Lessee, upon payment of the
required rents and subject to the terms, conditions, covenants and
agreements contained in this Lease, shall have possession of the
Leased Premises during the full term of this Lease as well as any
extension or renewal thereof. Lessor shall not be responsible for the
acts or omissions of any other Lessee or third party that may
interfere with Lessee's use and enjoyment of the Leased Premises.
3.05 Inspection. In the event of an emergency, Lessor or its authorized
agents shall at any and all reasonable times have the right to enter
the Leased Premises at any time. When an emergency situation does not
exist, and provided Lessee is not in default of the Lease, Lessor will
attempt to provide Lessee with forty-eight (48) hour advance notice
before entering the Premises to inspect the same, to supply janitorial
service or any other service to be provided by Lessor, to show the
Leased Premises to prospective purchasers or Lessees, and to alter,
improve or repair the Leased Premises or any other portion of the
building. Lessee hereby waives any claim for damages for injury or
inconvenience to or interference with Lessee's business, any loss of
occupancy or use of the Leased Premises, and any other loss occasioned
thereby. Lessor shall at all times have and retain a key with which to
unlock all of the doors in, upon and about the Leased Premises.
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Lessee shall not change Lessor's lock system or in any other manner
prohibit Lessor from entering the Leased Premises. Lessor shall have
the right to use any and all means which Lessor may deem proper to
open any door in an emergency without liability therefore.
ARTICLE 4
UTILITIES AND SERVICE
4.0 Utilities and Service
4.01 Building Services. Lessor shall provide the normal utility service
connections to the building. Lessee shall pay the cost of all utility
services, including, but not limited to, initial connection charges,
all charges for gas, electricity, water, sanitary and storm sewer
service, and for all electric lights. However, in a multi-occupancy
building, Lessor may provide water to the Leased Premises, in which
case Lessee agrees to pay to Lessor its pro rata share of the cost of
such water. Lessee shall be responsible for the installation and
maintenance of any dilution tanks, holding tanks, settling tanks,
sewer sampling devices, and sand traps, grease traps or similar
devices as may be required by any governmental subdivision for
Lessee's use of the sanitary sewer system. If the Leased Premises are
in a multi-occupancy building, Lessee shall pay all surcharges levied
due to Lessee's use or sanitary or waste removal services insofar as
such surcharges affect Lessor or other Lessees in the building. Lessor
shall not be required to pay for any utility services, supplies or up
keep in connection with the Leased Premises or building.
4.02 Theft or Burglary. Lessor shall not be liable to Lessee for losses to
Lessee's property or personal injury caused by criminal acts or entry
by unauthorized persons into the Leased Premises or the building.
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ARTICLE 5
Repairs and Maintenance
-----------------------
5.0 Repairs and Maintenance
5.01 Lessor Repairs. Lessor shall not be required to make any improvements,
replacements or repairs of any kind or character to the Leased
Premises or the project during the term of this Lease except as are
set forth in this section. Lessor shall maintain (in a first class
manner similar to the level of service provided in comparable
properties in the area) only the roof, foundation, parking and common
areas, and the structural soundness of the exterior walls (excluding
windows, windowglass, plate glass and doors) Lessor's costs of
maintaining the items set forth in this section are subject to the
additional rent provisions in section 2.02. Lessor shall not be liable
to the Lessee, except as expressly provided in this Lease, for any
damage or inconvenience, and Lessee shall not be entitled to any
abatement or reduction of rent by reason of any repairs, alterations
or additions made by the Lessor under this Lease.
5.02 Lessee Repairs. Lesee shall, at its sole cost and expense, maintain,
repair and replace all other parts of the Leased Premises in good
repair and condition, including, but not limited to heating,
ventilating and air conditioning systems ("HVAC Systems")
notwithstanding the foregoing, and provided Tenant has properly
maintained the same, if any part of the HVAC System serving the
Premises needs to be replace, the cost for such replacement part shall
be amortized over the part's expected reasonable useful life and
Tenant shall be responsible for the pro rata cost of the part
according to the remaining term of Tenant's Lease. By way of example,
if at the end of the first year of the lease term, (therefore Tenant
has two (2) years remaining on the Lease) a rooftop unit needs to be
replaced with a new unit that has an expected useful life of ten (10)
years, the Tenant would be responsible for two-tenths (2/10) or twenty
percent (20%) of the cost. However, Landlord shall not be responsible
for the cost of any equipment purchased by Tenant that will have a
useful life beyond the remaining term of the Tenant's lease unless
Tenant has received the Landlord's prior written
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consent before the equipment is purchased and installed, dock dumpers,
trash pick-up and removal. For Lessees Premises. Lessee shall repair
and pay for any damage caused by any act or omission of Lessee or
Lessee's agents, employees, invitees, licensees or visitors. If the
Leased Premises are in a multi-occupancy building or project, Lessor
shall perform, on behalf of Lessee, lawn maintenance, and exterior
painting, and common area trash pick-up and removal; Lessee agrees to
pay Lessor, as additional rent, Lessee's pro rata share of the cost of
such services within ten (10) days from receipt of Lessor's invoice,
or Lessor may by monthly invoice direct Lessee to prepay the estimated
costs for the current calendar year, and such amount shall be adjusted
annually. If Lessee fails to make the repairs of replacements promptly
as required herein, Lessor may, at its opinion, make the repairs and
replacements and the cost of such repairs and replacements shall be
charged to Lessee as additional rent and shall become due and payable
to Lessee within ten (10) days from receipt of Lessor's invoice. Costs
incurred under this section are the total responsibility of Lessee and
do not constitute operating expenses under section 2.02.
5.03 Request for Repairs. Except for emergency repair, all requests for
repairs or maintenance that are the responsibility of Lessor pursuant
to any provision of this Lease must be made in writing to Lessor at
the address in section 1.05. Lessor shall have ten (10) days after
written notice to complete the repair, or if repairs cannot reasonably
be completed within ten (10) days, additional time will be allowed
provided Landlord diligently pursues a cure through completion.
5.04 Lessee Damages. Lesee shall not allow any damage to be committed on
any portion of the Leased Premised or building, and at the termination
of this Lease, by lapse of time or otherwise, Lessee shall deliver the
Leased Premises to Lessor 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 Leased Premises shall be borne by Lessee.
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5.05 Maintenance Contract. Lessee shall, at its sole cost and expense
during the term of this Lease maintain a regularly scheduled
preventative maintenance/service contract with a maintenance
contractor for the servicing of all hot water, heating and air
conditioning systems and equipment within the Leased Premises. The
maintenance contractor and contract must be approved by Lessor and
must include quarterly servicing, replacement of filters, replacement
or adjustment of drive belts, periodic lubrication and oil change and
any other services suggested by the equipment manufacturer.
ARTICLE 6
ALTERATIONS AND IMPROVEMENTS
----------------------------
6.0 Alterations and Improvements
6.01 Lessor Improvements. If construction to the Leased Premises is to be
performed by Lessor prior to or during Lessee's occupancy, Lessor will
complete the construction of the improvements to the Leased Premises,
in accordance with plans and specification agreed to by Lessor and
Lessee, which plans and specifications are made a part of this Lease
by reference. Lessee shall execute a copy of the plans and
specifications and change orders if applicable, setting forth the
amount of any costs to be borne by Lessee within seven (7) days of
receipt of the plans and specifications. In the event Lessee fails to
execute the plans and specifications and change orders with the seven
(7) day period, Lessor may at its sole option, declare this Lease
canceled or notify Lessee that the base rent shall commence on the
completion date even though the improvements to be constructed by
Lessor 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 Lessor and Lessee and
shall constitute an amendment to this Lease.
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6.02 Lessee Improvements. Lessee shall not make or allow to be made any
alterations or physical additions in or to the Leased Premises without
first obtaining the written consent of the Lessor, which consent will
not be unreasonably withheld or delayed. However, Landlord will
require that any alterations, additions, or improvements be performed
by a licensed, properly insured contractor approved by Lessor and all
work shall be done in accordance with all applicable governmental
rules and regulations. Any alterations, physical additions or
improvements to the Leased Premises made by the Lessee shall at once
become the property of Lessor and shall be surrendered to Lessor upon
the termination of this Lease; provided, however at the time Lessor
consents to the improvements, Lessor may notify Lessee that Lessee
must remove any physical additions and/or repair any alterations in
order to restore the Leased Premises to the condition existing at the
time Lessee took possession, all costs of removal and all alterations
to be borne by Lessee. This clause shall not apply to moveable
equipment or furniture owned by Lessee, which may be removed by Lessee
at the end of the term of this Lease if Lessee is not then in default
and if such equipment and furniture are not then subject to any other
rights, liens and interests of Lessor.
6.03 Mechanics Lien. Lessee will not permit any mechanic's or materialman's
lien(s) or other lien to be placed upon the Leased Premises or the
building and nothing in this Lease shall be deemed to constructed in
any way as constituting the consent or request of Lessor, express or
implied, by interference or otherwise, to any person for the
performance of any labor or the furnishing of any materials to the
Leased Premises, or any part thereof, nor as giving Lessee any right,
power, or authority to contract for or permit the rendering of any
services of the furnishing of any materials that would give rise to
any mechanic's materialman's or other lien against the Leased
Premises. In the vent any such lien is attached to the Leased
Premises, then, in addition, any other right or remedy of Lessor may,
but shall not be obligated to, obtain the release of or otherwise
discharge the same. Any amount paid by Lessor for any of the aforesaid
purposes shall be paid by Lessee to Lessor on demand as additional
rent.
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ARTICLE 7
CASUALTY AND INSURANCE
----------------------
7.0 Casualty and Insurance
7.01 Substantial Destruction. If the Leased Premises should be totally
destroyed by fire or other casualty, or if the Leased Premises should
be damaged so that rebuilding cannot reasonably be completed within
ninety (90) working days after the date of written notification by
Lessee to Lessor of the destruction, this Lease shall terminate and
the rent shall be abated for the unexpired portion of the Lease,
effective as of the date of the written notification. Notwithstanding
the foregoing there shall be no abatement of rent in the event Tenant
is responsible in whole or in part of the casualty or destruction.
7.02 Partial Destruction. If the Leased Premises should be partially
damaged by fire or other casualty, and rebuilding or repairs can
reasonable be completed within ninety (90) working days from the date
of written notification by Lessee to Lessor of the destruction, this
Lease shall not terminate, and Lessor shall at its sole risk and
expense proceed with reasonable diligence to rebuild or repair the
building or other improvements to substantial the same condition in
which they existed prior to the damage. If the Leased Premises are to
be rebuilt or repaired and are untenatable in whole or in part
following the damage, and the damage or destruction was not caused or
contribute to by act or negligence of the Lessee, its agents,
employees, invitees, or those for whom Lessee is responsible, the rent
payable under this Lease during the period for which the Leased
Premises are untenantable shall be adjusted to such an extent as may
be fair and reasonable under the circumstances. In the event if the
Lessor fails to complete the necessary repairs or rebuilding within
ninety (90) working days from the date of written notice of
termination to Lessor whereupon all rights and obligations under this
Lease shall cease to exist.
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7.03 Waiver of Subrogation. Anything in this Lease to the contrary
notwithstanding, Lessor and Lessee 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 Leased Premises, improvements
to the building of which the Leased Premises are a part, or personal
property within the building, by reason of fire or the elements,
regardless of cause of origin, including negligence of Lessor or
Lessee 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 property
endorsed, if necessary, to prevent the invalidation of the insurance
overages by reason of the mutual waivers.
7.04 Hold Harmless. Lessor shall not be liable to Lessee's employees,
agents, invitees, licensees or visitors, or to any other person, for
any injury to any other person, for any injury to person or damage to
property on or about the Leased Premises caused by any act or omission
Lessee, its agents, servants or employees, or of any other person
entering upon the Leased Premises under express or implied invitation
by Lessee, or caused by the improvements located on the Leased
Premises becoming out of repair, the failure or cessation of any
service provided by Lessor (including security service and devices),
or caused by leakage of gas, oil, water or steam or by electricity
emanating from the Leased Premises. Lessee agrees to indemnify and
hold harmless Lessor of and from any loss, attorney's fees, expenses
or claims arising out of any such damage or injury.
Landlord, its agents and employees shall not be liable, and Tenant
hereby waives its right, if any, to claim for any damage or loss as a
result of any failure of the Building to comply strictly with ADA as
applies to the Building. Tenant hereby agrees to save, hold harmless
and defend Landlord from any claims, suits or
15
liabilities made against the Landlord by any of Tenant's existing or
prospective clients, employees, agents, servants or invitees as a
result of or in connection with any non-compliance of the Building
with the ADA. In the event of any failure substantially interferes
with the operation of Tenant's business in the Premises, Tenant's sole
remedy shall be for termination of this Lease, provided that, Tenant
shall have no claim for termination of this Lease, based on the
non-compliance with the ADA by the Building unless Tenant (i) promptly
gives notice of any such non-compliance and allows Landlord a
reasonable time to correct any such non-compliance, and (ii) if any
such compliance is not effected within a reasonable time, Tenant gives
no less than ninety (90) days prior written notice of the termination
date, Tenant actually vacates the Premises on or before such
termination date, and Tenant is in compliance with its obligations
under this Lease on the date the notice is given and on the
termination date.
In case any claim, demand, action or proceeding is made or brought
against Landlord, its agents or employees, as a result of Tenant's
default or alleged default of any obligation on Tenant's part to be
performed under the terms of this Lease, or arising from any act,
omission or negligence of Tenant, its agents or employees, or which
gives rise to Tenant's obligation to indemnify Landlord, Tenant shall
be responsible for all costs and expenses, including by not limited to
reasonable attorney's fees incurred in defending or prosecution of the
same, as applicable.
7.05 Tenant's Insurance. Tenant shall, at its own cost, at all times during
the term of this Lease and any extensions hereof, procure and maintain
special covered causes of loss insurance on Tenant's Property and the
contents of the Premises in an amount equal to full replacement cost
thereof. Tenant shall also maintain workers' compensation and
employers' liability insurance in the minimum statutory amount and
including a waiver of subrogation in favor of the Landlord and
Landlord's insurer, and commercial general liability insurance on an
occurrence basis, including coverage for bodily injury, property
damage, personal injury products and completed operations, liability
assumed under and insured
16
contract host liquor legal liability and cross liability with the
following limits of liability; One Million Dollars ($1,000,000)
combined single limit for each occurrence of bodily injury and
property damage and personal injury. Two Million Dollars ($2,000,000)
aggregate for bodily injury and property damage for products and
completed operations. Tenant shall further, at its own cost, at all
times during the term of this Lease and any extensions hereof, procure
and maintain insurance for automobile liability including coverage for
bodily injury and property damage for owned and hired autos with the
following limits and liability; One Million Dollars ($1,000,000)
combined single limit for each occurrence of bodily injury and
property damage. Tenant shall also maintain business interruption
insurance in an amount sufficient to reimburse Tenant for direct and
indirect loss of earnings attributable to prevention of access to the
Building or Premises as a result of such perils, and such other forms
and amounts of insurance as Landlord or its mortgage may reasonably
require from time to time. All such insurance shall be procured from a
reasonable insurance company or companies authorized to do business in
the State where the Premises are located, with general policyholder's
ratings of not less than "A-" and a financial rating of not less than
"VI" in the most current available bent's Insurance Reports, and shall
be otherwise reasonably satisfactory to Landlord. All such policies
except Workers Compensation shall name Landlord and Landlord's
property management agent as additional insureds, and shall provide
that the same may not be cancelled except upon thirty (30) days prior
to the annual renewal date thereof and upon request from time to time
and such certificate(s) shall disclose that insurance names Landlord
and Landlord's designated property management agent as an additional
insured, in addition to the other requirements set forth herein. The
time limits of such insurance shall not, under any circumstances,
limit the liability of Tenant hereunder.
Should Tenant fail to procure such insurance within the time period
hereinbefore specified, Landlord may, at its opinion, but Landlord
shall have no obligation to do so, procure such insurance and pay the
premiums therefore and Tenant agrees to reimburse Landlord for the
cost thereof plus interest thereon at the rate of
17
eighteen percent (18%) per annum (but in no event in excess of the
maximum rate permitted under law), as Additional rent on the first day
of the calendar month following the rendition of the xxxx or bills
therefore and Landlord shall have the same rights and remedies in
enforcing the payment of such additional rent as in the case of
Tenant's failure to pay the rent herein reserved.
7.06 Landlord's Insurance. Landlord agrees to carry and maintain the
following insurance during the term of his Leas and any extension
hereof; general public liability insurance against claims for personal
injury, including death and property damage in or about the Premises
and the Building or the Building Complex (excluding Tenant's
Property), such insurance to be in an amount not less than One Million
Dollars ($1,000,000) combined single limit. Landlord shall also carry
fire and a casualty insurance covering the Building in an amount not
less than eighty percent (80%) of the replacement cost of same. Such
insurance may expressly exclude property paid for by tenants or paid
for by Landlord for which tenants have reimbursed Landlord located in,
or constituting a part of the Building or Building complex. Such
insurance hall afford coverage for damages resulting from (a) fire,
(b) perils covered by extended coverage insurance, and (c) explosion
of steam and pressure boilers and similar apparatus located in the
Building or the Building Complex. Landlord may carry such other
additional insurance coverage, as Landlord or Landlord's mortgage
deems appropriate including coverage for loss of rents. All such
insurance shall be procured from a responsible insurance company or
companies authorized to do business in the State where the Premises
are located, with general policyholder's rating of not less than "A-"
and a financial rating of not less than "XI" in the most current
available Best's Insurance Reports.
18
ARTICLE 8
CONDEMNATION
------------
8.0 Condemnation
8.01 Substantial Taking. If all or a substantial part of the Leased
Premises are taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or by right 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 Leased 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. Lessee shall have no claim to the condemnation
award or proceeds in lieu thereof.
8.02 Partial Taking. If a portion of the Leased 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, Lessor shall at Lessor's sole risk and expense, restore and
reconstruct the building and other improvements on the Leased Premises
to the extent necessary to make it reasonable tenantable. The rent
payable under this Lease during this unexpired portion of the term
shall be adjusted to such an extent as may be fair and reasonable
under the circumstance. Lessee shall have no claim to the condemnation
award or proceeds in lieu thereof.
ARTICLE 9
ASSIGNMENT OR SUBLEASE
----------------------
9.0 Assignment or Sublease
9.01 Lessor Assignment. Lessor 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. So long as an assignee of Lessor is capable
of performing and assumes Lessor's rights and obligations hereunder,
any such sale, transfer or assignment
19
shall operate to release Lessor from any and all such liabilities
under this Lease arising after the date of such sales, assignment or
transfer.
9.02 Lessee Assignment. Lessee 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, of 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 Leased
Premises, in whole or in part, without the prior written consent of
Lessor (which consent shall not be unreasonably withheld or delayed),
and in no event shall any assignment or sublease ever release Lessee
or any guarantor from any obligation or liability hereunder. No
assignee or sub lessee of the Leased Premises or any portion thereof
may assign or sublet the Leased Premises or any portion thereof.
9.03 Condition of Agreement. If Lessee desires to assign or sublet all or
any part of the Leased Premises, it shall so notify Lessor at least
thirty (30) days in advance of the date on which Lessee desires to
make such assignment or sublease. Lessee shall provide Lessor with a
copy of the proposed assignment or sublease and such information as
Lessor might request concerning the proposed sublessee or assignee to
allow Lessor 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 Lessor's receipt
of Lessee's proposed assignment or sublease and all required
information concerning the proposed sublessee or assigner, Lessor
shall have the following options: (1) cancel this Lease as to the
Leased Premises or portion thereof proposed to be assigned or sublet;
(2) consent to the propoed assignment or sublease, and, if the rent
due and payable by any assignee or sublessee under an such permitted
assignment or sublease (or a combination f the rent payable under such
assignment of the sublease plus any bonus or any other consideration
or any payment incident thereto) exceeds the rent payable under this
Lease for such space, Lessee shall pay to Lessor one half (1/2) of
such excess rent and other
20
excess consideration within ten (10) days following receipt thereof by
Lessee; or (3) refuse, in its reasonable judgment, to consent to the
proposed assignment or sublease which refusal shall be deemed to have
been exercised unless Lessor give Lessee written notice providing
otherwise. Upon the occurrence of an event of default, if all or any
part of the Leased Premises are then assigned or sublet, Lessor 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 Lessee by reason of the assignment
or sublease, and Lessor shall have a security interest in all
properties on the Leased Premises to secure payment of such sums. Any
collection directly by Lessor from the assignee or sublessee shall not
be construed to constitute a novation or release of Lessee or any
guarantor from the further performance of fits obligation under the
lease.
9.04 Subordination. Lessee accepts this Lease subject and subordinate to
any record mortgage or deed o trust lien presently existing or
hereafter created upon the building or project and to all existing
recorded restrictions, covenants, easements and agreements with
respect to the building or project. Lessor is hereby irrevocably
vested with full power and authority to subordinate Lessee's interest
under this Lease to any first mortgage or deed of trust lien hereafter
placed on the Leased Premises, and Lessee agrees upon demand to
execute additional instruments subordinating this Lease as Lessor may
require. If the interests of Lessor under this Lease shall be
transferred by reason of foreclosure or other proceedings for
enforcement of nay first mortgage or deed of trust lien on the Leased
Premises. Lessee shall be bound to the transferee (sometimes call the
"Purchaser") at the opinion 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 Lessor under this Lease, and, if
requested by the Purchaser, Lessee agrees to attorn to the Purchaser,
including the first mortgagee under any such mortgage if it be the
Pruchase, as its Lessor. Lessee shall have the right to quiet
enjoyment.
21
9.05 Estoppel Certificates. Lessee agrees to furnish, from time to time,
within ten (10) days after receipt of a request from Lessor or
Lessor's mortgagee, a statement certifying, if applicable, the
following: Lessee is in possession o f the Leased Premises; the Leased
premises are acceptable; the Lease is in full force and effect, the
lease is unmodified; Lessee 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 (1) month and will not prepaid for more
than one (1) month in advance; there is no existing default by reason
of some act or omission by Lessor or Lessor's mortgagee. Lessee's
failure to deliver such statement, in addition to being a default
under this Lease, hall be deemed to establish conclusively that this
Lease is In full force and effect except as declared by Lessor, that
Lessor is not in default of any of its obligations under this Lease,
and the Lessor has not received more than one month rent in advance.
22
ARTICLE 10
LIENS
-----
(Deleted in Original)
ARTICLE 11
DEFAULT AND REMEDIES
--------------------
11.0 Default and Remedies
11.01 Default by Lessee. The following shall be deemed to be events of default
by Lessee under this Lease: (1) Lessee shall fail to pay when due any
installment of rent of any other payment required pursuant to this Lease;
(2) Lessee shall abandon any substantial portion of the Leased Premises ;
(3) Lessee 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 ten (10) days after written notice to Lessee, of if repairs cannot
reasonably to be completed within ten (10)days, additional tine will be
allowed provided Tenant diligently pursues a cure through completion; (4)
Lessee shall file a petition or be adjudged bankrupt or insolvent under
any applicable federal or state bankruptcy or insolvent 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 lessee' or Lessee shall make a transfer in fraud of
creditors or shall make an assignment for the benefit of creditors; (5)
Lessee shall do or permit to be done any act which results in a lien
being filed against the Leased Premises or the building and /or project
of which the Leased Premises are a part.
11.02 Remedies for Lessees Default. Upon the occurrence of any event of default
set forth in this Lease. Lessor shall have the option to pursue any one
or more of the remedies set forth herein (to the extent they are in
accordance with Colorado law) without any notice or demand. (1) Lessor
may enter upon and take possession of the Leased Premises, by
23
picking or changing locks if necessary, and lock out, expel or remove
Lessee and any other person who may be occupying all or any part of the
Leased Premises without being liable for any claim for damages, and relet
the Leased Premises on behalf of Lessee and all or any party of the
Leased Premises without being liable for any claim for damages, and relet
the Leased Premises on behalf of Lessee and receive the rent directly by
reason of the reletting. Lessee agrees to pay Lessor on demand any
deficiency that may arise by reason of any reletting of the Leased
Premises; further, Lessee agrees to reimburse Lessor for any expenditure
made by it in order to relet the Leased Premises including, but not
limited to remodeling and repair costs. (2) Lessor may enter upon the
Leased Premises, by picking or changing locks if necessary, without being
liable for any claim for damages, and do whatever Lessee is obligated to
do under the terms of this Lease. Lessee agrees to reimburse Lessor on
demand for any expenses which Lessor may incur in effecting compliance
with Lessee's obligations under this Lease; further, Lessee agrees that
Lessor shall not be liable for any damages resulting to Lessee from
effecting compliance with Lessee's obligations under this Lease caused by
the negligence of Lessor or otherwise. (3) Lessor may terminate this
Lease, in which event Lessee shall immediately surrender the LEASED
PREMISES to Lessor and if Lessee fails to surrender the LEASED PREMISES,
Lessor may, without prejudice to any other remedy which it any have for
possession of arrearages in rent, enter upon and take possession of the
LEASED PREMISES, by picking or changing locks if necessary, and lock out,
expel or remove Lessee and any other person who; may be occupying all or
any part of the LEASED PREMISES without being liable for any claim for
damages. Lessee agrees to pay on demand the amount of all loss and damage
which Lessor may suffer by reason of the termination of this Lease under
this section, whether through inability to relet the upon satisfactory
terms or otherwise. Notwithstanding any other remedy set forth in this
Lease, in the event Lessor has made rent concessions of any type of
character, or waived any base rent, and Lesee fails to take possession of
the Leased 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 cancelled and the amount of the
base rent or other rent concessions shall be due and payable immediately
as is no rent concessions or waiver of any base rent had ever been
granted.
24
A rent concession or waiver of the base rent shall nor relieve Lessee 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 Lessor only by mailing or delivering written
notice of such termination to Lessee, and no other actor omission of
Lessor shall be construed as a termination of this lease.
ARTICLE 12
RELOCATION
Deleted in original
ARTICLE 13
DEFINITIONS
-----------
13.0 Definition
13.01 Abandon. "Abandon" means the vacating of all or a substantial
portion of the LEASED PREMISES by Lessee, whether of not Lessee is
in default of the rental payments due under this Lease.
13.02 Act of God or Force Majeur. An "act of God " or "force majeur" is
defined for purposes of this Lease as strikes, lockouts sitdowns,
material or labor restrictions by any governmental authority,
unusual transportation delay, riots floods, washouts, explosions,
earthquakes, fire, storms, weather (including wet grounds or
inclement weather which prevents construction), acts of the public
enemy, wars, insurrections and any other cause not reasonably
within the control of Lessor and which by the exercise of due
diligence Lessor is unable wholly or in part , to prevent or
overcome.
13.03 Building or Project. "Building or Project" as used in this Lease
means the building and /or project described in Section 1.02
including the LEASED PREMISES and the land upon which the building
or project is situated.
25
13.04 Commencement Date. Completion Date shall be the date on which the
improvements erected and to be erected upon the LEASED PREMISES
shall have been completed in accordance with the plans and
specification described in Article 6.00. The completion date shall
constitute the commencement of the term of this Lease for all
purposes, whether or not Lessee 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 Leased Premises
shall have been completed in accordance with the plans and
specification described in Article 6.00. The completion date shall
constitute the commencement of the term of this Lease for all
purposes, whether or not Lessee has actually taken possession.
Lessor 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,
Lessee shall notify Lessor in writing of its objections. Lessor
shall have a reasonable time after delivery of the notice in which
to take such corrective action as may be necessary and shall
notify Lessee in writing as soon as it deems such corrective
action has been completed and the improvements are ready for
occupancy. Upon completion of construction. Lessee shall deliver
the Lessor a letter accepting the Leased 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 Lessee has executed such letter of acceptance,
taking possession of the Leased Premises by Lessee shall be deemed
to establish conclusively that the improvements have been competed
in accordance with the plans and specification, are suitable for
the purposes for which the Leased Premises are let and that the
Leased Premises are in good and satisfactory condition as to the
date possession was so taken by Lessee, except for latent defaults
if any.
26
13.06 Square Feet. "Square Feet" as used in this Lease includes the area
contained within the Leased Premises together with a common area
percentage factor of the Leased Premises proportionate to the
total building area.
ARTICLE 14
MISCELLANEOUS
-------------
14 Miscellaneous
14.01 Waiver. Failure of Lessor 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 the Lessor shall have the right to declare the
default at any item and take such action as is lawful or
authorized under this 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 if any rent f damaged
according to Lessor by reason of the violation of any of the
terms, provisions or covenants of this Lease. Failure by Lessor to
enforce one or more of the remedies provided upon an event of
default shall not be deemed or construed a waiver of the default
or of any other violation or breach of any of the terms,
provisions and covenants in this Lease.
14.02 Act of God. Lessor shall not be required to perform any covenant
or obligation in this Lease, or be liable in damages to Lessee, so
long as the performance or non-performance of the covenant of
obligation is delayed, caused or prevented by an act of God, force
majeure or by Lessee.
14.03 Attorney's Fees. In the event Lessee defaults in the performance
of any of the terms covenants. Agreements or conditions contained
in this Lease and Lessor places in the hands of an attorney the
enforcement of all or any part of this Lease, the collection of
any rent die or to become due, or recovery of the possession of
the Leased Premises. Lessee agrees to pay Lessor's costs of
collection, including reasonable attorney's fees for the services
of the attorney, whether suit is actually filed or not.
27
14.04 Successors. This Lease shall be binding upon and inure to the
benefit of the Lessor and Lessee and their respective heirs,
personal representative, successors and assigns. It is hereby
covenanted and agreed that should Lessor's interest in the LEASED
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 Lessee hereunder agrees to attorn to the then owner of the
LEASED PREMISES.
14.05 Rent Tax. If applicable in the jurisdiction where the LEASED
PREMISES are situated, Lessee 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 Lessor by Lessee 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 charges 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 Lessee
shall be payable to Lessor at the address set forth in Section
1.05. All payments required to be made by Lessor to Lessee shall
be payable to the Lessee at the address set forth in Section1.05
or at any other address within the United States as Lessee 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) when deposited in the United States Mail,
postage prepaid, certified mail, return receipt requested,
addressed to the parties at the respective address set forth in
Section 1.05
14.08 Submission of Lease. Submission of Lease to Lessee 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 Lessor and Lessee.
28
14.09 Corporate Authority. If Lessee executes this Lease as a
corporation, each of the persons executing this Lease on behalf of
Lessee does hereby personally represent and warrant that Lessee is
a duly authorized and existing corporation, that Lessee is
qualified to do business in the state in which the LEASED PREMISES
are located, that the corporation has full right and authority to
enter into this Lease and that each person signing in behalf of
the corporation is authorized to do so. In the event any
representation or warranty is false, all persons who execute this
Lease shall be liable, individually, as Lessee.
14.10 Severability. In 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 Lessor shall be in default under this Lease
and, if as a consequence of such default, Lessee shall recover a
money judgment against Lessor such judgment shall be satisfied
only out of the right, title and interest of Lessor in the
building as the same may them be encumbered and neither Lessor not
any person or entity comprising Lessor shall be liable for any
deficiency. In no event shall Lessee have the right to levy
execution agents any property of Lessor other than its interest in
the building as herein expressly provided.
14.12 Indemnity. Lessor agrees to indemnify and hold harmless Lessee
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 Lessee. If the Building is, at the
execution hereof or at any time during the term hereof, subject to
a mortgage or deed of trust, the Lessee agrees to give the holder
thereof (the "Note Holder") written notice of each and every
alleged default within ten (10) days after the time for cure
thereof allotted to the Lessor under the forging subparagraph or
within such longer period as may be reasonably necessary if such
default cannot be cured within such (10) days. The Tenant
understands that the Note Holder shall have the right but not the
obligation or duty to cure any such default by the Lessor.
29
14.13 Hazardous Waste. Lessee shall not bring or allow any of its
agents. Employees, contractors or invitees to bring, onto or about
the Leased Premises or the Building, any Hazardous Materials. For
purposes of this Lease, the term "Hazardous Materials" shall mean
any one or more of the following: (a) any "hazardous waste" as
defined by the Resource Conservation and Recovery Act of 1976 (42
U.S.C. Section 6901 et seq.), as amended from time to time, and
regulations promulgated thereunder; (b) any "hazardous substance,
as defined by the Comprehensive Environmental Response.
Compensation and Liability Xxx 0000 (42 U.S.C. Section 9601 et
seq.) ("CERCLA"), as amended from time to time and regulations
promulgated thereunder' (c) any other substance, in a quantity
which, by, any governmental rules, statutes or regulations,
requires special handling or notification of any federal, state or
local governmental entity in its collection, storage, treatment or
disposal.
Each party herein shall immediately advise the other in writing, in the
event such party becomes aware that there is located in or about the
Leased Premises or the Building, or that such party or there lessee or
any other person intends or may bring onto or about the Leased Premises
or the Building any Hazardous Materials without being in full compliance
of all governmental rules and regulations regarding Hazardously
Materials. Each party herein shall save, hold harmless and indemnify the
other form all claims, suits, and liabilities which may be brought as a
result of the use, storage or transportation of any Hazardous Materials
in our about the Leased Premises or the Building by such party, its
agents. contractors or invitees.
ARTICLE 15
AMMENDMENT AND LIMITATION OF WARRANTIES
---------------------------------------
15.0 Entire Agreement. IT IS EXTRESSLY AGREED BY LESSEE, AS A MATERIAL
CONSIDERATION FOR THE EXECUTION OF THIS LEASE, THAT THIS LEASE, WITH THE
SPECIFIC REFERNCES TO WRITTEN EXTRINSIC DOCUMENTS. is THE ENTIRE
AGREEMENT OF THE PARTIES;
30
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, IS NOT
INCORPERATED IN WRITING IN THIS LEASE.
15.02 Amendment. THIS LEASE MAY NOT BE ALTERED. WAIVED AMENDED OR EXTEDNED
EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY LESSOR AND LESSEE.
15.03 Limitation of Warranties. LESSOR AND LESSEE EXPRESSLY AGREE THAT THERE
ARE AND SHALL BE NO IMPLIED WARRANTIES OF MERCHTABILITY, HABITABILITY,
FITNSS FOR A PARTICULAR PURPOSE OR OF ANY OTHER KIND ARISING OUT OF THIS
LEASE, AND THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THIS EXPRESSLY SET
FORTH IN THIS LEASE.
ARTICLE 16
OTHER PROVISIONS
----------------
16.0 Other Provisions
Lessor's Contribution Towards Lessee's improvements. If, during the first
twelve (12) months of the term of the lease. Lessee recarpets and repairs
the office portion of the Leased premises when upon the satisfactory
completion of the work and receipt by Lessor of copies of invoices for
this work that have been paid by Lessee. The Lessor shall reimburse the
Lessee for the cost of the work to recarpet and repaint the Leased
Premises up to a maximum contribution of Lessor of Three Thousand Five
hundred and 00/100 Dollars (3,500.00). This reimbursement by Lessor shall
be in the form of a credit against the next months Base Rent due from
Lessee
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If within the first twelve (12) months of the Lease, Lessee desires to
make alterations to the Premises in accordance with Section 6.02 of this
Lease, and these alterations require the purchase and installation of a
new HVAC rooftop unit and receipt by Lessor of copies of invoices for
this work that have been paid by Lessee, the Lessor shall reimburse the
Lessee an amount equal to seventy percent (70%)of the cost of the HVAC
rooftop unit up to a maximum contribution of Lessor of Four Thousand Five
Hundred and 00/100 dollars (4,500,00). This reimbursement by Lessor shall
be in the form of a credit against the next months' Base Rent due from
Lessee.
ARTICLE 17
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SIGNATURES
----------
17.0 Signatures
LESSOR: LESSEE:
COMMERCE SQUARE ASSOCIATES L.L.C. I.E.S. ELECTRONICS INDUSTRIES U.S.A.,
A Colorado Limited liability Company INC., a Delaware corporation
By: By:
-------------------------------------- ----------------------------------
Name: Name: Xxxxx Xxxxx
Title: Manager Title: President and CEO
Date: 09/27/97 Date: 09/26/97
32
EXHIBIT A - Rules and Regulations
RULES AND REFULATIONS
1. Lessor agrees to furnish Lessee two keys without charge. Additional keys
will be furnished at a nominal charge. Lessee shall not change locks or
install additional locks in doors without prior written consent of
Lessor. Lessee shall not make or cause to be made duplicates of keys
procured from Lessor without prior approval of Lessor. All keys to Leased
Premises shall be surrendered to Lessor upon termination of this Lease.
2. Lessee will refer all contractors, contractor's representatives and
installation technician rendering any services on or to the LEASED
PREMISES for Lessee to Lessor for Lessor's approval before performance of
any contractual service. Lessee's contractors and installation
technicians shall comply with Lessor's rules and regulations pertaining
to construction and installation. This provision shall comply with
Lessor's rules and regulations pertaining to construction and
installation. This provision shall apply to all work performed on or
about the Leased Premises or project, 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
Leased Premises or project
3. Lessee shall not at any time occupy any part of the OP or project as
sleeping or lodging quarters.
4. Lessee shall not place, install or operate in the Leased Premises or in
any part of the building any engine, stove or machinery, or conduct
mechanical operations or xxxx thereon or therein, or place or use in or
about the Leased Premises or project any explosives, gasoline, kerosene,
oil, acids, caustics, or nay flammable explosive or hazardous material
without written consent.
5. Lessor will not be responsible for lost or stolen personal property,
equipment, money or jewelry from the Leased Premises or the project
regardless of whether such loss occurs when the area is locked against
entry or not.
33
6. No dogs, cats, fowl or other animals shall be brought in or about the
Leased Premises or project.
7. Employees of Lessor shall not receive or carry messages for or to any
Lessee to other person or contract with or render free or paid services
to any Lessee or to any of Lessee's agents, employees or invitees.
8. None of the Parking, plaza recreation or lawn area, 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 Lessee's agents, employees
or invitees at any time for purposes inconsistent with their designation
by Lessor.
9. The water closets and other water fixtures shall not be used for any
purpose other that those for which they were constructed, and any damage
resulting to them from noise or by the defacing or injury of any party 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
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. Lessee and its employees, agents and invitees shall park their vehicles
only on those parking areas designated by Lessor. Lessee shall furnish
Lessor with state automobile license numbers of Lessee's vehicles and its
employees' vehicles within five (5) days after taking possession of the
Leased Premises and shall notify Lessor of any changes within five (5)
days after such change occurs. Lessee 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 Leased Premises or project.
If Lessee or its employees, agents or invitees park their vehicles in
areas other than the designated parking areas or leave any vehicle in a
state of disrepair, Lessor after giving written notice to Lessee of such
violation, shall have the right to remove such vehicles at the Lessee's
expense.
34
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 Lessor. Failure to observe the rule
and regulations shall terminate Lessee's right to use the parking garage
or area and subject the vehicle in violation of the parking rules and
regulations or removal and impoundment. No termination of parking
privileges or removal of impoundment of a vehicle shall create any
liability on Lessor or be deemed to interfere with Lessee's right to
possession of its Leased Premises. Vehicles must be parked entirely
within the stall lines and all of its 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
Lessor. Parking stickers or other forms of identification supplied by
Lessor shall remain the property of Lessor and not the property of Lessee
and are not transferable. Every person is required to park and lock his
vehicle. All responsibly of damage to vehicles or persons is assumed by
the owner of the vehicle or its driver
14. Movement on or out of the building of furniture or office supplies and
equipment, or dispatch or receipt by Lessee of any merchandise or or
materials which requires use of elevators or stairways, or movement
throughout the building entrances or lobby shall be restricted to hours
designated by Lessor. All such movement shall be under supervision of
Lessor and carried out in the manner agreed between Lessee and Lessor by
prearrangement before performance. Such prearrangements will include
determination by Lessor of time, method, prohibit any article, equipment
or any other item from being brought into the building Lessee assumes,
and shall indemnify Lessor against, all risks and claims of damage to
persons and properties arising in connection with any said movement.
15. Lessor 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. Lessee shall not lay floor covering within the Leased Premises without
written approval of the Lessor. The use of cement or other similar
adhesive materials in not easily removed with water is expressly
prohibited.
35
17. Lessee agrees to cooperate and assist Lessor in the prevention of
canvassing, soliciting and peddling within the building or project.
18. Lessor serves the right to exclude from the building or project between
the hour 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 or project security personnel and who do not present a pass to
the building signed by the Lessee. Each Lessee shall be responsible for
all persons for whom he supplied a pass.
19. It is Lessor's desire to maintain in the building or project the highest
standard of dignity and good taste consistent with comfort and
convenience for Lessee's. Any action or condition not meeting this high
standard should be reported directly to Lessor. Your cooperation will be
mutually beneficial and sincerely appreciated. Lessor 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 LEASED PREMISES and for the preservation of good order
therein.
36
Exhibit B - Description of the Leased Premises
DESCRIPTION OF THE LEASED PREMISES
Suite 110 - 5,700 square feet
0000 Xxxx Xxxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxxx 00000
(Graphic image omitted)
37
Exhibit C - Work Letter
WORK LETTER
The Exhibit C is dated September 24, 1997 between COMMERCE SQUARE
ASSOCIATES L.L.C., a Colorado limited liability company ("Landlord") and I.E.S.
ELECTRONICS INDUSTRIES U.S.A. INC., a Delaware corporation ("Tenant").
1. This Exhibit C is attached to and forms a part of that certain
commercial lease agreement dated September 24, 1997, (the "Office Lease")
pursuant to which Landlord has leased to Tenant office space in the building
located t 0000 Xxxx Xxxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxxx 00000 (the "Building").
2. Tenant agrees to accept the Premises in its current "as is" condition.
This Exhibit C is executed by Landlord and Tenant below:
LANDLORD: TENANT:
COMMERCE SQUARE ASSOCIATES L.L.C. I.E.S. ELECTRONICS INDUSTRIES U.S.A.,
A Colorado Limited liability Company INC., a Delaware corporation
By: By:
-------------------------------------- ----------------------------------
Name: Name: Xxxxx Xxxxx
Title: Manager Title: President and CEO
Date: 09/27/97 Date: 09/26/97
38
Exhibit D - Agreement for Signage
AGREEMENT FOR SIGNAGE
THIS AGREEMENT FOR SIGNAGE is dated this 24th day of September, 1997
between COMMERCE SQUARE ASSOICATES L.L.C. a Colorado limited liability company,
(the "Landlord") and I.E.S. ELECTRONIC INDUSTIRES U.S.A., INC., a Delaware
corporation (the "Tenant")
W I T N E S S E T H
A. By Commercial lease agreement dated September 24, 1997, Landlord
leased to Tenant certain space located at 0000 xxxx Xxxxxxx Xxxxx, Xxxx Xxxx,
Xxxxxxxx 00000.
B. Landlord is willing to provide signage to Tenant pursuant to the terms
and conditions contained herein.
NOW, THEREFORE, the parties agree as follows:
1. Building standard identification showing the Tenant's name and suite
number will be displayed on the entry door. This building standard
identification will be provided by the Landlord at the Landlord's expense upon
written request by the Tenant. Any additional suite and/or building signs will
be at Tenant's expense and will be consistent with existing building signage and
will require the prior written approval of Landlord which will not be
unreasonably withheld.
2. Default. Tenant shall be in default under this Agreement upon the
occurrence of any of the following events:
2.1 Tenant is in default for any reason pursuant to the terms and
conditions of the Commercial Lease Agreement
39
3. Remedies. Upon the occurrence of ay event of default, Landlord shall
be entitled to declare this Agreement terminated, to terminate the rights of
Tenant to utilize the signage, and seek whatever damages Landlord may deem
reasonable and proper including, without limitation, its fees and expenses
(including attorney's fees) incurred in pursing such action.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this statement
on the date above written.
LANDLORD: TENANT:
COMMERCE SQUARE ASSOCIATES L.L.C. I.E.S. ELECTRONICS INDUSTRIES U.S.A.,
A Colorado Limited liability Company INC., a Delaware corporation
By: By:
-------------------------------------- ----------------------------------
Name: Name: Xxxxx Xxxxx
Title: Manager Title: President and CEO
Date: 09/27/97 Date: 09/26/97
40
Exhibit E - Agreement for Parking
AGREEMENT FOR PARKING
This AGREEMTN FOR PARKING is dated this 24th day of September, 1997
between COMMERCE SQUARE ASSOCIATES L.L.C., a Colorado limited liability company,
("Landlord') and I.E.S. ELECTRONICS INDUSTRIES U.S.A. INC., a Delaware
corporation ("Tenant").
W I T N E S S E T H
A. By commercial lease agreement dated September 24th 1997, Landlord,
leased to Tenant certain office building space located at 0000 Xxxx Xxxxxxx
Xxxxx, Xxxx Xxxx, Xxxxxxxx 00000 (the "Building").
B. Appurtenant to the Building are uncovered parking spaces. Tenant
desires to lease from Landlord parking spaces in said areas.
C. Landlord is willing to let certain parking spaces to Tenant pursuant
to the terms and conditions contained herein.
NOW, THEREFORE, the parties agree as follows:
1. Lease of Parking Spaces. Landlord herby leases to Tenant eleven
(11) parking spaces located in the parking area adjacent to and around
the building. Said Lease shall be for a period concurrent with the term
of the Lease.
2. Nonexclusive. This Lease creates a license to utilize the
parking spaces above-referenced. It is not a Lease of specific parking
spaces and no parking spaces shall be reserved for the use of the Tenant.
3. Operation of Parking Spaces. Tenant agrees to comply with all
rules and regulations imposed by Landlord for the operation, utilization
and maintenance of the parking spaces. Tenant shall not undertake any
activity, which will increase Landlord's insurance or create a
disturbance or waste to the parking spaces. Landlord shall have the
right, at any time and from time to time by written notice to Tenant, to
designate specific
41
parking spaces for use by Tenant, its agents, employees and invitees, in
which case Tenant shall use, and shall require its agents, employees and
invites, in which case Tenant shall use, and shall require its agents,
employees and invites to use only such spaces.
4. Default. Tenant shall be in default under this Agreement upon
the occurrence of any of the following events:
4.1 Failure to pay the rental described herein when due
4.2 Tenant in its default for any reason pursuant to the terms and
conditions of the Office Lease.
5. Remedies. Upon the occurrence of an event of default, Landlord
shall be entitled to declare this Agreement terminated, to terminate the
rights of Tenant to utilize the parking spaces, and seek whatever damages
Landlord may deem reasonable and proper including, without limitation,
its fees and expenses (including attorney's fees) incurred in pursuing
such action.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this
statement on the date above written.
LANDLORD: TENANT:
COMMERCE SQUARE ASSOCIATES L.L.C. I.E.S. ELECTRONICS INDUSTRIES U.S.A.,
A Colorado Limited liability Company INC., a Delaware corporation
By: By:
-------------------------------------- ----------------------------------
Name: Name: Xxxxx Xxxxx
Title: Manager Title: President and CEO
Date: 09/27/97 Date: 09/26/97
42
Exhibit F - Commencement Letter
COMMENCEMENT OF LEASE TERM AND ESTOPPEL CERTIFICATE
THIS COMMENCEMENT OF LEASE TERM AND ESTOPPEL CERTIFICATE dated this 24th
day of September, 1997, by and between COMMERCE SQUARE ASSOCIATES L.L.C., a
Colorado limited liability company, ("Landlord"), whose address is 000 Xxxxxxx
Xxxxxx, xxxxxx 000, Xxxxxx, Xxxxxxxx 00000 and I.E.S. ELECTRONICS INDUSTIRES
U.S.A. INC,. a Delaware corporation (the "Tenant") whose address is 0000 Xxxx
Xxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx, Xxxxxxxx 00000.
W I T N E S S E T H
WHEREAS, the landlord and Tenant, entered into a commercial lease
agreement dated September 24, 1997, (the Lease") which lease demised the
Premises located at 0000 Xxxx Xxxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxxx 00000,
described in Exhibit B to the Lease.
WHEREAS, the parties desire to reaffirm and/or amend and certify to
certain provisions of the Lease; and WHEREAS, the parties desire that the
matters set forth herein be conclusive and binding on the parties
NOW, THEREFORE, for a good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Lease Commencement Date is deemed and agreed to be October 1,
1997, and the Lease Termination Date is agreed and deemed to be September 30,
2000, unless sooner terminated, as provided therein.
2. Tenant's first installment of Base Rent in the amount of Three
Thousand Eight Hundred and 00/100 Dollars ($3,800.00) for the month of October,
1997 is due upon execution of the Lease.
43
3. Tenant's first installment of Tenant's Pro Rate Share of Operating
Expenses in the amount of One Thousand Four Hundred One and 25/100 Dollars
($1,401.25) for the month of October, 1997 is due upon execution of the Lease.
4. Tenant Security Deposit of Three Thousand Eight Hundred and 00/100
Dollars ($3.800.00) is due upon execution of the Lease.
5. By execution hereof, Tenant acknowledges and agrees that all
improvements or work required of Landlord has been satisfactorily performed.
6. Except as may be amended herein, all terms and conditions of the lease
shall continue in full force and effect and are hereby republished and
reaffirmed in their entirety.
7. This Certificates shall be binding upon and may be relied upon by the
parties hereto and their respective legal representatives, successors and
assigns.
IN WITNESS WHEREOF, the Landlord and Tenant have executed this statement
on the date above written
LANDLORD: TENANT:
COMMERCE SQUARE ASSOCIATES L.L.C. I.E.S. ELECTRONICS INDUSTRIES U.S.A.,
A Colorado Limited liability Company INC., a Delaware corporation
By: By:
-------------------------------------- ----------------------------------
Name: Name: Xxxxx Xxxxx
Title: Manager Title: President and CEO
Date: 09/27/97 Date: 09/26/97
44
