FORM OF LEASE AGREEMENT
THIS LEASE, is entered into as of ______________, ________, between Xxxxx
X. Xxxxxxxxxxx and Xxxxxx Xxxxxxxxxxx, having an address for notice purposes and
payment of rent of X.X Xxx 000 Xxxxxxxxxxx, XX 00000 ("Landlord"), and
Snowdance, Inc., a Delaware corporation, having an address for notice purposes
of X.X Xxx 000 Xxxxxxxxxxx, XX 00000 ("Tenant").
W I T N E S S E T H:
For good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I
DEMISE OF PREMISES
Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord,
seventeen (17) condominiums units more particularly described on Schedule A. The
condominium units, together with all improvements, appurtenances, easements and
privileges belonging thereto, and all personalty therein as of the date of this
lease (and all replacements thereof) shall hereinafter be called the "Leased
Premises".
ARTICLE II
USE
Tenant may use the Leased Premises for any lawful purpose consistent with
the terms of this Lease.
ARTICLE III
TERM AND COMMENCEMENT OF RENT
This lease shall be effective upon its execution by both Landlord and
Tenant. This lease shall have an initial term of ten (10) years, and shall renew
automatically for additional one year terms unless terminated by Landlord upon
written notice delivered at least sixty (60) days prior to the end of the
current term.
ARTICLE IV
BASE RENT
On the first calendar day of each month, commencing with December 1, 1997,
the Tenant shall pay to Landlord Base Rent of $9,500 for all seventeen of the
condominium units. On November 1 of each year thereafter (a "Rental Increase
Date"), Landlord shall have the option to increase the rent for the next twelve
(12) month period by an amount not exceed five percent (5%) of the Base Rent for
the previous twelve month period. Landlord may, from year to year, forego all or
a portion of such increase in Base Rent, however Landlord's failure to institute
all or any portion of such increase in Base Rent shall not be deemed to be a
waiver of Landlord's right to increase the Base Rent on any future Rental
Increase Date. In the event one or more of the condominium units are sold, Base
Rent shall be reduced proportionately.
ARTICLE V
UTILITIES
In addition to Base Rent, Tenant shall pay when due all bills for water,
sewer, trash and garbage services, gas, electricity, snow removal, garden
maintenance, heating and cooling, and all other utilities used on the Leased
Premises until expiration of the term of this lease. Unless otherwise specified
by Tenant, the source of supply and vendor of each such commodity shall be the
local public utility company or municipality commonly servicing the area. Tenant
shall also obtain and maintain water service, sewer, and electric service lines,
gas service, all adequate to service the Leased Premises for the purposes herein
provided. Landlord shall have no responsibility for providing or maintaining
utilities to the Leased Premises.
ARTICLE VI
CONDOMINIUM FEES
Tenant shall pay when due all condominium fees and assessments, including
any special assessments.
ARTICLE VII
ALTERATIONS BY TENANT; REPLACEMENT OF PERSONALTY
Tenant may make alterations and additions to the Leased Premises upon
Landlord's written consent, which consent shall not be unreasonably withheld.
Such alterations and additions shall be paid for by Tenant and shall become a
part of the Leased Premises and the property of Landlord. Tenant shall, at
Tenant's cost, replace any personalty in the leased premises as and when
necessary in order to maintain the leased premises and such personalty in good
condition.
ARTICLE VIII
PROPERTY TAXES AND OPERATING EXPENSES
Tenant shall be liable for and shall pay before delinquency all taxes and
assessments, and penalties and interest thereon, if any, levied against Tenant's
property and any other personal property of whatsoever kind and to whomsoever
belonging situate or installed in and upon the Leased Premises, whether or not
affixed to the realty. Tenant shall be liable for and shall pay before
delinquency all real property taxes upon the Leased Premises.
ARTICLE IX
RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES
Tenant shall at its sole cost during the term hereof keep and maintain the
Leased Premises, the improvements thereto, and every part thereof in good and
sanitary order, condition and repair and
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in compliance with all laws and regulations applicable thereto unless such
damage or repair is due to the gross negligence of Landlord, its agents or
employees. Landlord shall have the right but not the obligation to enter on the
Leased Premises, upon reasonable notice under the circumstances (no notice being
necessary in an emergency) to take any steps deemed necessary by Landlord to
cure any default by Tenant in performing its obligations under this Article.
ARTICLE X
DAMAGE OR DESTRUCTION
Tenant agrees to notify the Landlord as soon as practicable in the case of
damage to, or destruction of, the Leased Premises or any portion thereof
resulting from fire or other casualty. The Tenant shall, as soon as practicable,
repair, reconstruct and restore the Leased Premises (including personalty) to
substantially the same or an improved condition or utility value as existed
prior to the event causing such damage. Any plans for repair, reconstruction, or
restoration shall require Landlord's prior written approval.
ARTICLE XI
INSURANCE
Throughout the term of this lease, Tenant shall, at its own cost and
expense, provide and keep in force for the mutual benefit of Landlord and Tenant
the following insurance:
(i) Broad Coverage Comprehensive general public liability insurance,
against claims for bodily injury, death, or property damage occurring in or
about the Leased Premises (including, without limitation, bodily injury,
death or property damage resulting directly or indirectly from any change,
alteration, improvement or repair thereof) with limits acceptable to
Landlord for bodily injury or death to any number of persons in respect of
any one accident or occurrence, and an amount acceptable for Landlord for
damage to property;
(ii) Insurance against loss or damage by fire and such other risks as are
customarily included in broad form extended coverage endorsements covering
"all risks" and which are attached to fire insurance policies covering
property in the State of Vermont similar to the subject building and all
replacements, additions and improvements thereof and all fixtures,
equipment and other personal property therein, in amounts sufficient to
prevent Landlord or Tenant from becoming a co-insurer under the terms of
the applicable policies, but in no event in an amount less than eighty
percent (80%) of the full replacement cost, thereof. The Landlord's
mortgagee shall be named as an insured in all policies.
All insurance to be provided and kept in force by Tenant under the
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provision of this lease (except Xxxxxxx'x Compensation insurance) shall name as
the insured Landlord and Tenant and the holders of any fee or leasehold
mortgages as their respective interest may appear. All such insurance shall be
obtained and paid for by Tenant and shall be procured from reputable and
financially sound insurance companies of recognized responsibility licensed to
do business in the State of Vermont. Tenant shall deliver to such mortgagees and
to Landlord the certificates and renewal certificates thereof, as required to be
obtained by Tenant.
ARTICLE XII
RISK OF LOSS
The Tenant takes all risk of any damage to its property, and to any
property brought on the Leased Premises by it or its agents, servants, licensees
or invitees, that may occur by reason of any cause whatsoever, except the
intentional act or gross negligence of the Landlord or its agents and the
failure of the Landlord to perform the obligations of Landlord contained herein.
ARTICLE XIII
ENVIRONMENTAL INDEMNIFICATION
Tenant shall indemnify and hold harmless Landlord from and against any and
all claims, damages, fines, judgments, penalties, costs, liabilities or lawsuits
(including, without limitation, any and all sums paid for settlement of claims,
attorneys' fees, consultant and expert fees) from or in connection with the
presence or suspected presence of Hazardous Substances in or on the Leased
Premises, that is caused by the Tenant. This indemnification shall include any
and all costs incurred due to any investigation to the site or any cleanup,
removal, or restoration mandated by a federal, state or local agency or
political subdivision. This indemnification shall specifically include any and
all costs due to hazardous substances that flow, diffuse, migrate or percolate
into, onto or under the Premises. "Hazardous Substance" includes any and all
materials or substances that are defined as "hazardous waste", "extremely
hazardous waste", "hazardous substances", or "hazardous material" pursuant to
state, federal or local government law.
ARTICLE XIV
DEFAULT
Each of the following events shall constitute a default hereunder:
(i) if the Tenant shall not pay rent or other amounts required to be paid
to Landlord or others at the times and in the manner stated herein or shall
fail to keep and perform any other material condition, stipulation or
agreement herein contained on the part of the Tenant to be kept and
performed;
(ii) the securing or permitting of the entry of a decree or order of the
court having jurisdiction in the premises
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adjudging the Tenant bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Tenant under the Federal Bankruptcy Code or any
other similar insolvency (federal or state) law, or appointing a receiver,
liquidator, trustee, sequestrator (or other similar official) of the
Tenant, or any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of thirty (30) consecutive days;
or
(iii) if the Leased Premises shall be seized under any levy, execution,
attachment or other process of court or sold by judicial sale relating to
Tenant and the same shall not be promptly vacated or stayed on appeal or
otherwise proved for. In any such events, the Landlord may, at Landlord's
option terminate and end this lease and re-enter upon the property,
whereupon the term hereby granted, and, at the Landlord's option, all
rights, title and interest under it, shall end and the Tenant become a
tenant-at-sufferance; or else the Landlord may take possession of the
premises and rent the same for the account of the Tenant; or pursue any
other remedy afforded by law, the exercise of any of which options herein
contained shall not be deemed the exclusive Landlord's remedy.
Notwithstanding any other provision of this lease or this paragraph:
(a) In the event the Tenant or its successors or assignees shall become
insolvent, bankrupt, or make an assignment for the benefit of the
creditors, or if it or their interest hereunder shall be levied upon or
sold under execution or other legal process, the Landlord may terminate the
lease.
(b) The failure on the part of the Landlord to re-enter or repossess the
premises, or to exercise any of its rights hereunder upon any default,
shall not be deemed a waiver of any of the terms and conditions of this
lease, and shall not preclude the Landlord from the exercise of any such
rights upon any subsequent occurring default or defaults.
(c) Notwithstanding the foregoing, the Tenant shall not be deemed to be in
default of this lease if it has cured any default other than a payment
default (for which there is no grace period) under the terms of this lease
within a period of thirty (30) days from the date of written notice of such
default by Landlord to Tenant, or, if such default cannot be cured within
said thirty (30) day period, Tenant shall use due diligence to cure said
default.
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ARTICLE XV
OPTION TO PURCHASE
Tenant shall have the option to purchase any one or more of the seventeen
(17) condominiums for $110,000 cash at any time during the term of this Lease
upon thirty (30) days written notice. In such event, Base Rent and all other
amounts due hereunder shall be prorated as appropriate.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
15.1 Landlord shall have the right to enter and inspect the Leased
Premises, or to show it to prospective purchasers or mortgagees at any time upon
reasonable notice.
15.2 The provisions of this lease relating to insurance proceeds shall also
apply to condemnation proceeds.
15.3 No payment by Tenant, or acceptance by the Landlord of a lesser amount
then due from Tenant to Landlord shall be treated otherwise than as a payment on
account. The acceptance by Landlord of any such lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such check,
that such lesser amount is payment in full, shall be given no effect, and
Landlord may accept such check without prejudice to any other rights or remedies
which Landlord may have against Tenant.
15.4 Tenant, subject to the terms and provisions of this lease, on payment
of the rent reserved hereunder and other charges, and observing, keeping and
performing all of the other terms and provisions of this lease on Tenant's part
to be observed, kept and performed, shall lawfully, peaceably and quietly have,
hold, occupy and enjoy the Leased Premises during the term hereof, without
hindrance or ejection by any persons lawfully claiming under Landlord to have
title to the Leased Premises superior to Tenant. The foregoing covenant of quiet
enjoyment is in lieu of any other covenant, express or implied, and it is
understood and agreed that this covenant and any and all other covenants of
Landlord contained in this lease shall be binding upon Landlord and Landlord's
successors.
15.5 No act or thing done by Landlord during the lease term shall be deemed
an acceptance of a surrender of the Leased Premises, and no agreement to accept
such surrender shall be valid, unless in writing signed by Landlord. No employee
of Landlord or of Landlord's agents shall have any power to accept the keys of
the Leased Premises prior to the termination of this lease.
15.6 If any term or provision of this lease, or the application thereof to
any person or circumstances shall, to any extent, be invalid or unenforceable,
the remainder of this lease, or the application of such term or provision to
persons or circumstances other than those as to which is held invalid or
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unenforceable, shall not be affected thereby, and each term and provision of
this lease shall be valid and be enforced to the fullest extent permitted by
law.
15.7 Except as herein otherwise provided, the terms hereof shall be binding
upon and shall inure to the benefit of the successors and assigns, respectively,
of Landlord and Tenant. Each term and each provision of this lease to be
performed by Tenant shall be construed to be both a covenant and a condition.
15.8 Whenever, by the terms of this lease, notice shall or may be given
either to Landlord or to Tenant, such notice shall be in writing and shall be
sent by registered or certified mail, postage prepaid to the addresses set forth
at the beginning of this lease. All such notices shall be effective when
deposited in the United States, provided that the same are received in ordinary
course at the address to which the same were sent.
15.9 Tenant may sublease one or more of the condominiums for periods not
exceeding one year. Tenant may not assign this lease in whole or in part (i.e.,
with respect to one or more condominiums for the remaining term of the lease).
15.10 The paragraph headings throughout this instrument are for convenience
and reference only, and the words contained there in shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or meaning
of the provisions of this lease.
15.11 Either party, on the request of the other, shall promptly furnish a
statement of the status of any matter pertaining to this lease, including,
without limitation, acknowledgements that (or the extent to which) each party is
in compliance with its obligations under the terms of this lease.
15.12 This lease shall be construed according to the laws of
the State of Vermont.
15.13 In the event it becomes necessary for the Landlord to enforce any
provision of this lease by suit or through an attorney, Landlord shall be
awarded reasonable legal expenses incurred.
IN WITNESS HEREOF the parties have executed this lease on the ___ day of
_____________, 1997.
LANDLORDS
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WITNESS Xxxxxx Xxxxxxxxxxx
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WITNESS Xxxxx X. Xxxxxxxxxxx
TENANT: Snowdance, Inc.
By:
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WITNESS Name:
Title:
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