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EXHIBIT 10.15
OFFICE LEASE AGREEMENT
BETWEEN
THE CHAPEL HILLS OFFICE BUILDING, A JOINT VENTURE
REFERRED TO AS THE "LANDLORD"
AND
USA NET, INC.
0000 XXXXX XXXXXXX XXXX., XXXXX 000
XXXXXXXX XXXXXXX, XX 00000
REFERRED TO AS THE "TENANT"
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into as of the 11th day of
September, 1997, by and between THE CHAPEL HILLS OFFICE BUILDING, A COLORADO
JOINT VENTURE (hereinafter referred to as the "LANDLORD"), and XXX.XXX, INC.
(hereinafter referred to as the "TENANT").
W I T N E S S E T H:
IN CONSIDERATION of the mutual promises and covenants contained herein,
the parties hereto agree as follows:
1. PREMISES. LANDLORD hereby leases to TENANT and TENANT hereby rents
from LANDLORD, the space (hereinafter called the "Leased Premises" in an office
building located at 0000 Xxxxx Xxxxxxx Xxxxxxxxx, in the City of Colorado
Springs, State of Colorado (hereinafter called the "Project") situated as shown
on Exhibit A attached hereto and made a part hereof. Any measurements specified
on Exhibit A are from the exterior of the outside walls of the Project and to
the center of the interior walls provided however included in Tenant's space is
that area inset in front of the entrance door to allow the door to swing towards
the public corridor. The approximate boundaries and location of the Leased
Premises are outlined in red on Exhibit A. For purposes of this Lease, the
parties agree that the Leased Premises shall be deemed to contain approximately
15,000* leasable square feet (the "Leasable Square Footage"), such Leasable
Square Footage calculated by the formula: the approximate actual or usable
square footage occupied by the Tenant multiplied by the factor 1.1433 to account
for the tenants shared use of the common areas of the Project. The exact
Leasable Square Footage shall be determined solely by the Landlord's architect
and shall be measured in accordance with the rules of B.O.M.A. standard of
measurement for multi-tenancy. This Lease shall be adjusted after the
determination of exact Leasable Square Footage to reflect the exact Leasable
Square Footage and all other items related to the Leasable Square Footage shall
be adjusted accordingly. The purpose of the site plan shown on Exhibit A is to
show the approximate location of the Leased Premises. Landlord reserves the
right at any time to relocate or make additions to the various common areas,
automobile parking areas, and other areas of the Project.
2. USE. TENANT covenants and agrees to use the Leased Premises for the
purpose of conducting therein office use for GENERAL OFFICE USE and for no other
purpose whatsoever, without the prior written consent of the LANDLORD.
3. TERM. The term of this Lease shall commence on October 15, 1997 OR
fifteen (15) days after LANDLORD notifies TENANT that the space is available to
TENANT for occupancy and fixturing, or when TENANT commences business on the
premises, whichever shall occur first and shall continue for a period of 60 full
consecutive months (the "Term"); expiring on the last day of October, 2002.
LANDLORD and TENANT shall execute, acknowledge and deliver a written statement
specifying the commencement date of the Term once it is determined pursuant to
the terms of this Lease Agreement.
4. RENT.
A. TENANT shall pay to LANDLORD annually for the Term of the Lease, without
prior demand thereof, at its address set forth below, the sum as defined below
as the Minimum Rent for each year of the Term of this Lease.
The Minimum Rent for the Term of the Lease shall be calculated by the following
formula: the Leasable Square Footage multiplied by the absolute net rate per
square foot as indicated below, in equal monthly installments, in advance on or
before the 1st day of each month of the Lease Term. The absolute net rate for
each year of the Term shall be: SEE ADDENDUM
All such Rent shall be paid without any set-off, counterclaim or deduction
whatsoever and without demand therefore being made. Minimum rent for any partial
month shall be prorated on a daily basis.
B. Additional Rent, which is estimated at Five Dollars Seventy Five Cents
($5.75) per Leasable square foot for the first year of the Term, shall be
payable by TENANT in monthly installments as are billed by LANDLORD at the
beginning of the Lease for a twelve (12) month period, each such installment
being due on the first day of each month but to be received from the TENANT no
later than the 10th of each month (per paragraph 4(c) herein). The monthly
payments to be made by TENANT shall be adjusted and revised to compensate for
any overpayment of underpayment made by TENANT in such preceding twelve (12)
month period. Within ninety (90) days after the end of each twelve (12) month
period, LANDLORD shall, upon request, make available LANDLORD'S records relating
to the operating costs for such preceding period. At the end of this Lease any
overages collected as Additional Rent which are to the credit of TENANT shall be
reimbursed to TENANT as credit against its Minimum Rent. Additional Rent
includes LANDLORD'S "operating costs" defined in Exhibit "E" (B), page 23 of
this Lease.
C. TENANT shall pay LANDLORD a $100.00 service charge for all monthly rent
payments not received by the 10th day of the month for which they are payable.
Said service charge is to partially cover extra expense involved in handling
delinquent payments. In addition to the above, any rental and other sums payable
hereunder by TENANT which are not paid within ten (10) days after the due date
shall bear interest at the rate of the annual prime rate of BANC ONE plus five
percent per annum or the highest amount legally allowed by law, whichever is
less, from the date due to the date paid.
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* REFER TO ADDENDUM ITEM #4
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D. All Rent, Additional Rent and other sums due to the LANDLORD, unless
specifically provided, are due and payable in advance on or before the first day
of each and every calendar month during said Term of the Lease at the office of
LANDLORD at 0000 Xxxxx Xxxxxxx Xxxxxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx, X.X.X. or
such other place as LANDLORD may in writing advise TENANT.
5. DEPOSITS. It is further agreed that TENANT, concurrently with the
execution of this Lease shall deposit with LANDLORD, and will keep on deposit at
all times during the Term of this Lease, the sum of $15,000.00, as security for
the payment by TENANT of the rent and other charges herein agreed to be paid,
and for the faithful performance of all the terms, conditions and covenants of
this Lease. If, at any time during the Term of this Lease, TENANT shall be in
default in the performance of any provision of this Lease, LANDLORD, shall have
the right to use said deposit, or so much thereof as is necessary in payment of
any rental in default, in reimbursement of any expense incurred by LANDLORD
hereunder and in payment of any damages incurred by LANDLORD by reason of
TENANTS's default. In any such events, TENANT shall, on written demand of
LANDLORD, forthwith remit to LANDLORD a sufficient amount in cash to restore
said deposit to its original amount. If TENANT shall have fully and faithfully
complied with all the provisions of this Lease, said deposit shall be refunded
to TENANT within sixty (60) days after the termination of this Lease. LANDLORD
shall have the right to commingle said deposit with other funds of LANDLORD.
LANDLORD shall deliver the balance of said funds, if any, deposited here by
TENANT to the acquirer of LANDLORD's interest in the Project and, in the event
of a transfer of sale, thereafter. LANDLORD shall be discharged from further
liability with respect to such deposit.
6. The "Lease" consists of this Lease Agreement, the General Terms and
Conditions of Lease Agreement attached hereto, Exhibits attached hereto, and any
subsequent written Modification of Lease executed by the parties hereto in
amending the terms hereof.
IN WITNESS WHEREOF, said LANDLORD and TENANT have caused this Lease to be
executed the day and year first above written.
TENANT: LANDLORD:
XXX.XXX CHAPEL HILLS OFFICE BUILDING,
A COLORADO JOINT VENTURE
BY: BVT CHAPEL HILLS LTD.
BY: /s/ XXXXXXXX X. XXXX BY: /s/ Illegible
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Agent
Its: Chief Operating Officer
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Date: October 17, 1997 Date: 9/11/97
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GENERAL TERMS AND CONDITIONS OF LEASE AGREEMENT
TABLE OF CONTENTS
ITEM PARAGRAPH
Construction of Improvements 1
Availability of Premises 2
Project Construction 3
Financial Responsibility 4
Parking 5
Fire or Casualty 6
Services and Expenses 7
Alterations and Care of Premises 8
Default and Remedies 9
Assignment or Subletting 10
Encumbrances 11
Eminent Domain 12
Mutual Waiver of Subrogation 13
Additional Covenants 14
No Partnership, Joint Venture or Agency 15
Holding Over 16
Quiet Enjoyment 17
Rules and Regulations 18
Force Majeure 19
Recording by Tenant 20
No Option 21
Attornment 22
Notice 23
Representations 24
Amendments of Approvals 25
Grammatical Changes 26
Article Heading 27
Exhibit A - Leased Premises
Exhibit B - Landlord's Work
Exhibit C - Site Plan
Exhibit D - Guaranty
Exhibit E - Services and Expenses
Exhibit F - Rules and Regulations
TENANT: (Initials) LANDLORD: (Initials) /s/ Illegible
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Date: Date: 9/11/97
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GENERAL TERMS AND CONDITIONS OF LEASE AGREEMENT
1. CONSTRUCTION OF IMPROVEMENTS.
A. LANDLORD shall construct certain portions of the Leased
Premises for TENANT's use and occupancy. All work to be performed and paid for
by LANDLORD shall be listed and described in Exhibit "B" attached hereto.
B. Any work defined in this Lease which is TENANT's obligation
to complete at its expense and to be performed by TENANT must first be approved
in writing by LANDLORD and shall be constructed in a good and workmanlike
manner, free from any liens for labor and materials. TENANT agrees to indemnify
LANDLORD and hold LANDLORD harmless against any loss, liability or damage
resulting from such work, and to furnish LANDLORD with a certificate of
insurance for general liability and xxxxxxx'x compensation insurance. TENANT
shall promptly pay for any work done initially or subsequently in or about its
Leased Premises, and will not permit or suffer any mechanic's lien to attach to
its Leased Premises, and shall promptly cause any claim for any such lien to be
released, or to secure to LANDLORD's satisfaction, in the event TENANT desires
to contest any such claim.
2. AVAILABILITY OF PREMISES.
A. The Leased Premises shall be completed, within sixty (60)
days of approval of working drawings. Rent commences upon occupancy of the
Leased Premises within the Building. If, for any reason, the Leased Premises
shall not be ready or available for occupancy on the date contemplated, this
Lease shall nevertheless continue in full force and effect, and TENANT shall
have no right to rescind, cancel or terminate the same and LANDLORD shall not be
liable for damages, if any, sustained by said TENANT on account of failure to
obtain possession on the date contemplated and in such event the rent for the
Leased Premises shall not commence until the term commences as defined in the
Lease Agreement Paragraph 3.
B. Preparation for occupancy of the Leased Premises by TENANT
shall be based on work being done to the Leased Premises in accordance with
"Exhibit B". TENANT, shall provide LANDLORD a list of any deficiencies upon
occupancy, and LANDLORD shall promptly proceed to correct those items.
3. PROJECT CONSTRUCTION.
A. Anything in this Lease to the contrary notwithstanding,
providing such cause is not due to the willful act or neglect of the LANDLORD,
the LANDLORD shall not be deemed in default with respect to the performance of
any of the terms, covenants and conditions of this Lease if same shall be due to
any strike, lockout, civil commotion, war-like operation, invasion, rebellion,
hostilities, military or usurped power, sabotage, governmental regulations or
controls, inability to obtain any materials, services, zoning, Project permits
or financing, through Act of God or other cause beyond the control of the
LANDLORD.
4. FINANCIAL RESPONSIBILITY.
TENANT agrees to furnish a financial statement in a form
acceptable to LANDLORD upon TENANT's execution of this Lease.
5. PARKING.
Project shall maintain approximately (3.34) unassigned parking
spaces, per One Thousand (1,000) leasable square feet, which shall be available
for TENANT's use. There are (19) visitor parking spaces available located in the
easterly parking areas which shall be for the use of Tenant's visitors on a
non-exclusive basis.
6. FIRE OR CASUALTY.
It is agreed that if, during the continuance of this Lease,
the Leased Premises shall be so damaged by fire or other casualty, not arising
from the fault or negligence of the TENANT, or those in its employ, so that the
Leased Premises shall thereby be rendered untenantable, then and in such case,
the rent herein reserved, or a just and proportionate part thereof, according to
the nature and extent of the damage which has been sustained, shall be abated
until the Leased Premises shall have been duly repaired and restored, which work
of repair and restoration shall be done with all reasonable diligence; provided
however, that should Tenant be in default at the time same occurs LANDLORD shall
have no such obligation. LANDLORD's obligation to repair and restore shall be
limited to a basic building and the replacement of any interior work which may
have been installed at LANDLORD's cost. In no event in the case of any such
destruction shall LANDLORD be required to repair or restore TENANT's stock in
trade, leasehold improvements, fixtures, furnishings, or floor coverings and
equipment. In the case the Project shall be destroyed so that the Leased
Premises are not restorable within one hundred twenty (120) days in the sole
judgment of the LANDLORD, LANDLORD shall have the right to cancel this Lease and
end the Term hereof, and in case of such cancellation, the rent, and any other
monies due and owing to LANDLORD, shall be paid by TENANT to the date TENANT
vacates the Leased Premises, and all further obligations upon the part of either
party hereto shall cease, and the estate hereby created shall thereupon
terminate. In the event the Leased Premises are damaged by fire or other
casualty during the last year of the Term of the Lease to an extent which
renders the Leased Premises untenantable, the LANDLORD may, at LANDLORD's
option, within thirty (30) days following the day of such fire or other
casualty,
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immediately terminate this Lease and be relieved of any obligation to rebuild or
repair the Leased Premises.
7. SERVICES AND EXPENSES.
The services of the LANDLORD and the payment by TENANT for
said services and of operational expenses are described in Exhibit "E". TENANT's
failure to comply with any one of the provisions of Exhibit "E" shall constitute
a breach of the terms of this Lease in the manner as if the same were contained
herein as general terms and conditions.
8. ALTERATIONS AND CARE OF PREMISES.
A. TENANT will not alter the exterior of the Leased Premises
(including glass and signs, if applicable) and shall have no right to make any
change, alteration, or addition to the Leased Premises without the prior written
consent of LANDLORD; all costs of such work shall be paid promptly by TENANT so
as to prevent the assertion of any liens for labor or materials. LANDLORD
reserves the right to make any alteration on the Leased Premises.
B. The TENANT agrees that it will take good care of the Leased
Premises, fixtures and appurtenances, and suffer no waste or injury, that it
will make all repairs to the Leased Premises, fixtures, and appurtenances
necessitated by the fault of the TENANT, its agents, employees and guests,
invitees and licensees, that it will not do, or permit anything to be done in
the Leased Premises which will in any way increase the fire insurance premium on
the Project, or conflict with the fire insurance policies on the Project; that
it will defend and save harmless the LANDLORD from any liability arising from
injury to person or property caused by any act or omission of TENANT, its
agents, employees or guests; and that it will surrender the Leased Premises at
the expiration of the Term (or the sooner termination thereof for any reason) in
as good condition as they were at the beginning of the Term, ordinary wear and
tear excepted.
C. All alterations, additions, erections or improvements on or
in the Leased Premises at the expiration of this Lease, except trade fixtures,
shall, at the option of the LANDLORD, be and become a part of the Leased
Premises, and shall, at the option of the LANDLORD, remain upon and be
surrendered with the Leased Premises as a part thereof at the termination of
this Lease. Should TENANT fail to remove any furniture or fixtures or personal
property of any kind, then same shall be considered as abandoned and become the
property of the LANDLORD. In the event LANDLORD may desire TENANT to remove
additions or alterations, TENANT, at his expense, shall, upon expiration of this
Lease, restore the Leased Premises to the same and as good order and condition
as when the same were entered upon by TENANT, ordinary wear and tear excepted
and in default thereof, LANDLORD may effect such removals and repairs and TENANT
shall pay LANDLORD the cost thereof, with interest at the rate of one and one
half percent (1.5%) percent per month commencing ten days after billing by
LANDLORD. Improvements constructed by the LANDLORD are not subject to this
section.
9. DEFAULT AND REMEDIES.
A. The following events shall be deemed to be events of
default by TENANT under this Lease:
(i) TENANT shall have failed to pay any installment
of rent or any other charge provided herein, or any portion thereof when the
same shall be due and payable; or
(ii) TENANT shall have failed to comply with any
other provisions of this Lease and shall not cure such failure within thirty
(30) days after LANDLORD, by written notice, has informed TENANT of such
noncompliance (in the case of a default which cannot with due diligence be cured
within a period of thirty (30) days, TENANT shall have such additional time to
cure same as may be reasonably necessary, provided TENANT proceeds promptly and
with due diligence to cure such default after receipt of said notice; or
(iii) TENANT or its guarantor, if any, shall file in
any court a petition in bankruptcy or insolvency or for the reorganization or
arrangement within the meaning of the Bankruptcy Act as amended, or under any
future Bankruptcy Act for the same or similar relief, or for the appointment of
a receiver or trustee of all or a portion of TENANT's property; or
(iv) An involuntary petition of the kind referred to
in subparagraph (iii) herein shall be filed against TENANT or its guarantor, if
any, and such petition shall not be vacated or withdrawn within sixty (60) days
after the date of filing thereof; or
(v) TENANT or its guarantor, if any, shall make an
assignment for the benefit of creditors; or
(vi) TENANT or its guarantor, if any, shall be
adjudicated a bankrupt; or
(vii) A receiver shall be appointed for the property
of TENANT or its guarantor by a court of competent jurisdiction; or
(viii) TENANT shall cease to conduct its normal
business operations in the premises or shall vacate or abandon the premises and
leave same vacated or abandoned for a period of ten (10) days; or
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(ix) TENANT shall do or permit to be done anything
which creates a lien upon the premises which is not paid or discharged promptly;
then LANDLORD, upon three (3) days' written notice to TENANT may elect either
(i) to cancel and terminate this Lease, or (ii) to terminate TENANT's right to
possession only without terminating the Lease.
B. In the event of election under (ix) above to terminate
TENANT's right to possession only, LANDLORD may, at LANDLORD's option, enter
into the premises and take and hold possession thereof, without such entry into
possession terminating this Lease or releasing TENANT in whole or in part from
TENANT's obligation to pay the rent hereunder for the full stated Term. Upon
such reentry with fifteen (15) days written notice, LANDLORD may remove all
persons and property from the premises and such property may be removed and
stored in a public warehouse or elsewhere at the cost of, and for the account of
TENANT, all without service of notice or resort to legal process and without
being deemed guilty of trespass, or becoming liable for any loss or damage which
may be occasioned thereby. Upon and after entry into possession without
termination of the Lease, LANDLORD, may but need not relet the premises, or any
part thereof, for the account of TENANT, to any person, firm or corporation,
other than TENANT, for such rent, for such time and upon such terms as LANDLORD,
in LANDLORD's sole discretion, shall determine, and LANDLORD shall not be
required to accept any tenant offered by TENANT or to observe any instruction
given by TENANT about such reletting. In any such case, LANDLORD may make
repairs and redecorate the premises to the extent deemed by LANDLORD necessary
or desirable, and TENANT shall, upon demand pay the costs thereof, together with
LANDLORD's expense of reletting, including commissions. If the consideration
collected by LANDLORD upon any such reletting for TENANT's account, and after
deducting all expenses incident thereto, including brokerage fees and legal
expenses is not sufficient to pay monthly the full amount of the rent provided
in this Lease, TENANT shall pay to LANDLORD the amount of each monthly
deficiency upon demand. In the event that LANDLORD shall have terminated
TENANT's right to possession only, LANDLORD shall have the right to cancel and
terminate this Lease by serving five (5) days written notice on TENANT of such
further election and to pursue any remedy at law or in equity that may be
available to LANDLORD.
C. If TENANT shall fail to remove all personal property upon
the abandonment of the leased premises or upon the termination of this Lease for
any cause whatsoever, the LANDLORD, at its option, may remove the same in any
manner that it shall choose and store the said effects without liability to the
TENANT for loss thereof in any public or private warehouse, and the TENANT
agrees to pay the LANDLORD on demand any and all expenses incurred in such
removal, including court costs and attorney's fees and storage charges on such
personal property for any length of time the personal property shall be in
storage; or the LANDLORD, at its option, without notice, may sell said personal
property, or any of the same, at private sale and without legal process, for
such prices as the LANDLORD may obtain, and apply the proceeds of such sale upon
any amounts due under this Lease from the TENANT to the LANDLORD and upon the
expense incidental to the removal, storage, and sale of the personal property,
rendering the surplus, if any, to the TENANT.
D. In the event of any breach hereunder by TENANT, LANDLORD
may immediately or at any time thereafter, without notice, cure such breach for
the account and at the expense of TENANT. If LANDLORD at any time by reason of
such breach is compelled to pay, or elects to pay, any sum of money or do any
act which will require the payment of any sum of money, or is compelled to incur
any expense, including reasonable attorney's fees, the sum or sums so paid by
LANDLORD, with interest thereon at the rate of one and one half percent (1.5%)
per month from the date of payment thereof, shall be deemed to be due from
TENANT to LANDLORD on the first day of each month following the payment of such
respective sums or expenses.
E. [THIS SECTION DELETED]
F. If at any time or times hereafter, if by reason of default,
eviction or other action at law or equity, LANDLORD employ counsel for advice
with respect to this Lease or any related landlord-tenant law issue, or employs
counsel to intervene, file an eviction, complaint, notice, answer, motion or
other pleading in any suit or proceeding relating to this Lease Agreement or the
tenancy relationship, or to attempt to collect rents under or to enforce this
Lease Agreement against TENANT, its assign(s) or subtenant(s), then, if any of
such events, the prevailing party shall be entitled to all reasonable legal
expenses arising from any such action.
G. This lease shall be construed under Colorado Law.
H. TENANT waives and disclaims any present or future right to
withhold any rental payment or any other payment due under this Lease, or to
set-off in any action for rental, against any obligation of LANDLORD, however
incurred.
I. Should LANDLORD be in default under the terms of this
Lease, LANDLORD shall have reasonable and adequate time in which to cure the
same after written notice to LANDLORD by TENANT.
10. ASSIGNMENT OR SUBLETTING.
A. It is agreed that neither the Leased Premises nor any part
thereof shall be sublet, nor shall this Lease be assigned by TENANT without the
written consent of the LANDLORD having been first obtained, such consent shall
not be unreasonably withheld by LANDLORD. No assignment for the benefit of
creditors, or by operation of law, shall be effective to transfer any rights to
an assignee without the written consent of the LANDLORD having been first
obtained.
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B. It is agreed that if this Lease be assigned, or if the
Leased Premises or any part thereof be sublet or occupied by anyone other than
TENANT, LANDLORD may collect rent from the assignee, subtenant or occupant, and
apply the net amount collected to the rent herein specified, and no such
collection shall be deemed a waiver of the covenant herein against assignment
and subletting, or the acceptance of the assignee, subtenant or occupant as
TENANT, or a release of TENANT from the complete performance by TENANT of the
covenants herein contained on the part of TENANT to be performed.
Notwithstanding any assignment or sublease, TENANT shall remain fully liable on
this Lease and shall not be released from performing any of the terms, covenants
and conditions of this Lease.
C. LANDLORD shall in any case have the right, at its option,
to terminate this Lease, rather than have it sublet or assigned.
D. If at any time during the Term of this Lease any part or
all of the corporate shares of a corporate TENANT or any part or all of the
interests of a partnership or joint venture TENANT shall be transferred by sale,
assignment, bequest, inheritance, operation of law, or other disposition so as
to result in a change in the present effective voting control of TENANT by the
person or persons owning a majority of said corporate shares or partnership or
joint venture interests on the date of this Lease, TENANT shall promptly notify
LANDLORD in writing of such change. LANDLORD, upon receipt of said written
notice, shall not unreasonably withhold approval of such change in interest. If,
however, LANDLORD determines that such change in interest shall materially
affect the terms of this lease, it may terminate this lease at its sole option,
by giving TENANT Ninety (90) days written notice of such termination.
11. ENCUMBRANCES.
A. It is agreed that this Lease is subject and subordinate to
the lien of any trust deeds or mortgages now on, or which at any time may be
made a lien upon the Leased Premises or the Project in which the Leased Premises
are situated, and to all advances made or hereafter to be made upon the security
thereof without any further action or consent being required.
B. At any time, and from time to time, TENANT agrees, upon
request in writing from LANDLORD, to execute, acknowledge and deliver to
LANDLORD a statement in writing certifying that this Lease is unmodified and in
full force and effect or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications and the dates to
which rent, herein stipulated, and other charges have been paid.
C. In the event of any transfer or sale of the Leased Premises
by the LANDLORD, LANDLORD shall be and is hereby entirely freed and relieved of
all liability under any and all of its covenants and obligations contained in or
derived from this Lease arising out of any act, occurrence or omission occurring
after the Consummation of such transfer or sale. The acquirer, at such transfer
or sale or any subsequent transfer or sale of the Lease Premises, shall be
deemed, without any further agreement between the parties or their successors in
interest or between the parties and any such purchaser, to have assumed and
agreed to carry out any and all of the covenants and obligations of LANDLORD
hereunder; this lease shall become part of any change in ownership, from
LANDLORD to any Third Party, under the same terms and conditions hereof.
12. EMINENT DOMAIN.
A. If the whole of the Leased Premises shall be acquired or
condemned by eminent domain for any public or quasi-public use or purpose, then
the Term of this Lease shall cease and terminate as of the date of title vesting
in such proceeding and all rentals shall be paid up to that date and TENANT
shall have no claim against LANDLORD nor the condemning authority for the value
of any unexpired Term of this Lease. If any part of the Leased Premises shall be
acquired or condemned as aforesaid, and in the event that such partial taking or
condemnation shall render the Leased Premises unsuitable for the business of the
TENANT, then the Term of this Lease shall cease and terminate as of the date of
title vesting in such proceeding. TENANT shall neither have a claim against
LANDLORD nor against the condemning authority for the value of any unexpired
Term of this Lease and rent shall be adjusted to the date of such termination.
In the event of a partial taking or condemnation which is not extensive enough
to render the premises unsuitable for the business of the TENANT, the LANDLORD
shall promptly restore the Leased Premises to a condition comparable to its
condition at the time of such condemnation less the portion lost in the taking,
and this Lease shall continue in full force and effect without any reduction or
abatement of rent.
B. In the event of any condemnation or taking as aforesaid,
whether whole or partial, the TENANT shall not be entitled to any part of the
award paid for such condemnation and LANDLORD is to receive the full amount of
such award, the TENANT hereby expressly waiving any right or claim to any part
thereof. Although all damages in the event of condemnation are to belong to the
LANDLORD whether such damages are awarded as compensation for diminution in
value of the leasehold or to the fee of the Leased Premises, TENANT shall have
the right to claim and recover from the condemning authority, but not from
LANDLORD, such compensation as may be separately awarded or recoverable by
TENANT in TENANT's own right on account of any and all damage to TENANT's
business by reason of the condemnation and for or on account of any cost or loss
to which TENANT might be put in removing TENANT's merchandise, furniture,
fixtures, leasehold improvements and equipment.
13. MUTUAL WAIVER OF SUBROGATION.
Anything in this Lease to the contrary notwithstanding,
neither LANDLORD nor TENANT shall be liable to the other for any business
interruption or any loss or damage to property or injury to or death of persons
occurring on the Leased Premises or the adjoining properties, sidewalks, streets
or
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alleys, or in any manner growing out of or connected with TENANT's use and
occupation of, or LANDLORD's operation and maintenance of, the Leased Premises,
or the condition thereof, or of sidewalks, streets or alleys adjoining, caused
by the negligence or other fault of LANDLORD or TENANT or of their respective
agents, employees, subtenants, licensees or assignees, to the extent that such
business interruption or loss or damage to property or injury to or death of
persons is covered by or indemnified by proceeds received from insurance carried
by the other party (regardless of whether such insurance is payable to or
protects LANDLORD or TENANT or both) or for which such party is otherwise
reimbursed; and LANDLORD and TENANT each hereby respectively waives all right of
recovery against the other, its agents, employees, subtenants, licensees and
assignees, for any such loss or damage to property or injury to or death of
persons to the extent the same is covered or indemnified by proceeds received
from any such insurance, or for which reimbursement is otherwise received.
Nothing in this Paragraph contained shall be construed to impose any other or
greater liability upon either LANDLORD or TENANT than would have existed in the
absence of this Paragraph.
14. ADDITIONAL COVENANTS. TENANT further covenants and agrees:
A. To comply with all lawful orders, building codes,
regulations and requirements issued by any Federal, State or Municipal
Governments, or any department or division thereof, insofar as the same are
applicable to its possession and occupancy of the Leased Premises. TENANT
further covenants not to use the Leased Premises for any purposes now or
hereafter prohibited by the Laws of the United States, the State of Colorado or
applicable ordinances; or for any improper or questionable purpose whatsoever.
B. That it will indemnify LANDLORD and save LANDLORD harmless
from each and every loss, cost, damage or expense arising out of any accident or
other occurrence causing injury to any person or property whomsoever or
whatsoever, and due directly or indirectly to the condition of the Leased
Premises or to the use or neglect of the Project premises, or any part thereof,
by said TENANT, or any person or persons holding under said TENANT, and will
indemnify and hold harmless said LANDLORD from all damages and penalties arising
out of any failure of TENANT, in any respect, to comply with all and any of the
requirements and provisions of this Lease; and shall hold LANDLORD harmless from
any penalty, damage and charge imposed for any violation of any laws, whether
occasioned by act or neglect of said TENANT, or by another or others in the
Leased Premises holding under or through TENANT. TENANT shall not hold or
attempt to hold LANDLORD liable for any injury or damage, either proximate or
otherwise; or liable for any injury or damage occasioned by defective wiring or
breakage or stoppage of plumbing or sewage upon the Leased Premises, whether
said breakage or stoppage results from freezing or otherwise. In the event, that
LANDLORD, in its acts or omissions, is found grossly negligent under this
section, said indemnification shall not apply.
C. That no assent, expressed or implied, to any breach of any
one or more of the covenants or agreements hereof, nor the delay of LANDLORD in
the assertion of any rights hereunder, shall be deemed to be taken to be a
waiver of any succeeding or other breach. The various rights, remedies, powers,
options and elections of LANDLORD reserved, expressed or contained in this Lease
are cumulative and no one of them shall be deemed to be exclusive of the others
or of such other rights, remedies, powers, options or elections as are now or
may hereafter be conferred upon LANDLORD by law.
D. To display no sign, advertisement, notice or other
lettering on any part of the outside of the Leased Premises or the Project of
which they form a part, or inside exterior glass, without, in each instance, the
prior written consent of LANDLORD, such consent may be arbitrarily withheld by
LANDLORD. No trade fixtures or other projections shall be attached to the
outside walls or roof of the Leased Premises without the prior written consent
of the LANDLORD, such consent may be arbitrarily withheld by LANDLORD. LANDLORD
is to provide a bronze strip suite entrance sign according to building standards
with lettering and wording approval by TENANT. Additionally, the lobby directory
strip will be in accordance with building standards with wording approved by
TENANT.
E. To permit LANDLORD to place a "For Rent" sign upon the
Leased Premises, only during the last 90 days of Lease term; and LANDLORD may,
at any reasonable hour of the day, enter into or upon, and go through and view
and inspect, the Leased Premises.
F. That no act or thing done by LANDLORD or LANDLORD's agents
during the Term hereof, or any extension thereof, 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.
G. No payment by TENANT, or receipt by LANDLORD, of a lesser
amount than the rent and other charges herein stipulated, shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement on any check or any letter accompanying any check, or payment as
rent, be deemed an accord and satisfaction, and LANDLORD may accept such check
or payment without prejudice to LANDLORD's right to recover the balance of such
rent or pursue any other remedy available to LANDLORD.
H. That the exhibits or supplements, if any be hereto
attached, are made a part hereof and shall be binding upon the parties hereto,
and if any provision of said exhibits or supplements shall conflict in any
manner with any other provision of this Lease, the provision of the supplement
shall prevail.
I. That all the terms, conditions and covenants to be observed
and performed by the parties hereto shall be applicable and binding upon their
heirs, executors, administrators, successors and assigns.
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J. That the invalidity or unenforceability of any provision of
this Lease shall not affect or impair the validity of any other provision. The
laws of the State of Colorado shall govern the interpretation, validity,
performance and enforcement of this Lease.
15. NO PARTNERSHIP, JOINT VENTURE OR AGENCY.
It is expressly understood that LANDLORD and TENANT are not
partners or joint venturers and that LANDLORD has no right, title or interest in
and to the business of TENANT, and that LANDLORD has no right to represent or
bind TENANT in any respect whatsoever, and that nothing herein contained shall
be deemed, held or construed as making LANDLORD a partner, joint venturer, or
associate of TENANT, nor as rendering LANDLORD liable for any debts, liabilities
or obligations incurred by TENANT. Neither is the relationship between LANDLORD
and TENANT that of Principal and Agent. It is expressly understood that the
relationship between the parties hereto is, and shall at all times, remain that
of LANDLORD and TENANT.
16. HOLDING OVER.
It is agreed that if, after the expiration of this Lease,
TENANT shall, without LANDLORD's consent, remain in possession of the Leased
Premises and shall continue to pay rent without written agreement as to such
possession, such TENANT shall be regarded as a tenant from month to month, at a
monthly rental, payable in advance, equal to two (2) times the monthly rental
for the last full month immediately prior to said expiration, and shall
otherwise be subject to all the terms and conditions of this Lease.
17. QUIET ENJOYMENT.
Upon payment by the TENANT of the rents and other charges
herein provided, and upon the observance and performance of all the covenants,
terms and conditions on TENANT's part to be observed and performed, TENANT shall
peaceably and quietly hold and enjoy the Leased Premises for the term hereby
leased without hindrance or interruption by LANDLORD or any other person or
persons lawfully or equitably claiming by, through or under the LANDLORD,
subject, nevertheless, to the terms and conditions of this Lease.
18. RULES AND REGULATIONS.
TENANT shall comply with all rules and regulations set forth
in Exhibit "F". Any violation of said rules shall be a failure to perform a
covenant of this Lease. LANDLORD shall have the right to make additions and
amendments to said regulations from time to time and such additions and
amendments shall be as binding on TENANT as if set forth herein.
19. FORCE MAJEURE.
In the event that either party shall be delayed or hindered in
or prevented from the performance of any act required hereunder by reason of
strikes, lockouts, riots, insurrection or war, then performance of such act
shall be excused for the period of the delay and the period for the performance
of any such act shall be extended for a period equivalent to the period of such
delay. The provisions of this section shall not operate to excuse TENANT from
prompt payment of Rents or any other payments required by the terms of this
Lease; however, LANDLORD agrees to abatement of rent after 30 days, only if any
act is substantially disruptive affecting all tenants and their ability to do
business.
20. RECORDING BY TENANT.
It is understood by the parties hereto that this Lease or any
memo thereof, shall not be recorded by TENANT without LANDLORD's written
permission.
21. NO OPTION.
The submission of this Lease for examination or execution does
not constitute a reservation of or option for the Leased Premises, and this
Lease becomes effective as a Lease only upon execution and delivery thereof by
LANDLORD and TENANT.
22. ATTORNMENT.
At the election of the encumbrancer, TENANT shall, in the
event of any foreclosure of any encumbrances attorn to the purchaser upon any
such foreclosure sale and recognize such purchaser as the LANDLORD. This lease
shall become part of any change in ownership, from LANDLORD to any Third Party
under the same terms and conditions hereof.
23. NOTICE.
Any notice which may be required to be given hereunder from
either of the parties to the other shall be in writing. Said notice may be
served personally or shall be deemed duly served by LANDLORD upon TENANT if
mailed by Certified Mail, Return Receipt Requested, with proper postage prepaid,
addressed to TENANT at the address at the Leased Premises hereby leased, and by
TENANT upon LANDLORD if mailed by Certified Mail, Return Receipt Requested, with
proper postage prepaid, addressed to LANDLORD at the address in Paragraph 4D of
Lease Agreement, or at such other address as either party may hereafter fix, by
notice in writing to the other.
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24. REPRESENTATIONS.
TENANT acknowledges and agrees that it has not relied upon any
statements, representations, agreements or warranties except as are expressed
herein.
25. AMENDMENTS OR APPROVALS.
No amendment or modification of this Lease, or any approvals
or permissions of LANDLORD required under this Lease, shall be valid or binding
unless reduced to writing and executed by the parties hereto in the same manner
as the execution of this Lease.
26. GRAMMATICAL CHANGES.
Wherever the words "LANDLORD" and "TENANT" are used in this
indenture, they shall include "LANDLORD" and "TENANT's" and shall apply to
persons, both men and women, companies, associations, partnerships, corporations
and trusts.
27. ARTICLE HEADINGS.
It is agreed that the head notes or article headings are
inserted only as a matter of convenience and for reference, and in no way
define, limit or describe the scope or intent of this Lease.
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EXHIBIT "A"
LEASED PREMISES
[FLOOR PLAN]
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EXHIBIT B
LANDLORD'S WORK AND IMPROVEMENTS
Landlord agrees to paint and carpet (to building standard quality) the entire
floor and provide $7,500 for partitions and doors.
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EXHIBIT "C"
LEGAL DESCRIPTION & SITE PLAN
To Wit:
Xxx 0, Xxxxx 0, XXXXXX XXXXX TECHNOLOGICAL CENTER as recorded in Plat Book P-2
at Page 76, in the records of El Paso County, Colorado, Except the following:
Commencing at the Southeast corner of said Lot 3; thence N 45(Degrees)52'29" E,
69.99 feet to the Point of Beginning of the said exception (the Basis of Bearing
is the Southerly line of said Lot 3, being N 88(Degrees)47'02" E, to which all
bearings are relative); thense S 39(Degrees)15'38" W, 7.61 feet; thence S
88(Degrees)47'06" W, 190.32 feet; N 44(Degrees)29'29" W, 10.19 feet; thence N
02(Degrees)13'55" E, 208.74 feet; thence N 05(Degrees)21'31" E, 71.10 feet;
thence N 38(Degrees)57'59" E, 109.24 feet; thence N 82(Degrees)53'00" E, 4.16
feet; thence S 53(Degrees)11'58" E, 200.82 feet; thence S 06(Degrees)16'34" E,
10.23 feet; thence S 40(Degrees)38'51" W, 52.15 feet; thence S 15(Degrees)11'31"
W, 107.62 feet; thence S 10(Degrees)15'49" E, 84.64 feet to the Point of
Beginning of the above described exception.
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EXHIBIT "D"
GUARANTY
Guaranty, dated as of this 20th day of October, 1997, made by XXXX
STREET ("Guarantor"). Guarantor has received a copy of the Lease between XXX.XXX
and THE CHAPEL HILLS OFFICE BLDG., A JOINT VENTURE (the "LANDLORD") dated the
_____ day of _________________, 19___, (the "Lease"), has examined the Lease and
is familiar with all the terms, covenants and provisions contained therein, and
as an inducement to LANDLORD to enter into the foregoing Lease, does hereby
unconditionally guarantee* in accordance with the Lease, and that TENANT will
faithfully perform and observe each covenant and condition of the Lease to be
performed or observed by TENANT. This Guaranty is an unconditional, irrevocable,
and absolute guarantee of payment and performance. Guarantor does hereby agree
that the TENANT has full authority to make any changes, modifications and
alterations in the foregoing Lease which shall be agreeable to LANDLORD, and
that such changes, modifications and alterations will not relieve the
undersigned from their responsibility hereunder.
Guarantor's obligation under this Guaranty shall in no way be affected
or impaired by reason of the happening from time to time of any of the following
with respect either to the Lease or to this Guaranty, even without notice to or
the further consent of Guarantor.
A. The extension by LANDLORD of the time for payment by TENANT of any
sums owing or payable under this Lease.
B. The assignment, subletting or mortgaging or the purported
assignment, subletting or mortgaging of all or part of TENANT's interest in the
Lease.
C. The waiver, failure, omission or dely of LANDLORD to enforce,
assert, or exercise any right, power or remedy conferred on LANDLORD in the
Lease or by law or any action on the part of LANDLORD granting indulgence or
extension in any form.
D. The voluntary or involuntary liquidation, dissolution, sale or other
disposition of all or substantially all the assets, a receivership, an
insolvency, a bankruptcy, an assignment for the benefit of creditors, a
reorganization, or any other similar proceeding affecting TENANT or any of its
assets, or the disaffirmance of the Lease in any such proceeding.
E. Any other cause, whether similar to or dissimilar from the
foregoing.
Notice of acceptance of this Guaranty and any obligations or
liabilities contracted or incurred by TENANT are all hereby waived by Guarantor.
This Guaranty shall be governed by and construed in accordance with the
laws of the State of Colorado.
No waiver by LANDLORD of the payment by Guarantor of any of his
obligations contained in this Guaranty, nor any extension of time for the
payments by Guarantor of any such obligations, shall affect or impair this
Guaranty or constitute a waiver or relinquishment of any rights of LANDLORD
hereunder for the future. No action brought under this Guaranty against
Guarantor and no recovery had in pursuance thereof shall be any bar or defense
to any further action or recovery which may be brought or had under this
Guaranty by reason of any default or further default by TENANT.
All the provision of this Guaranty shall inure to the benefit of
LANDLORD and its grantors, successors and assigns, and shall inure to the
benefit of any future owner of the fee title of which the Leased Premises (as
defined in the Lease) are a part; and all the provisions of this Guaranty shall
be binding upon the Guarantor, his heirs, legal representatives, successors and
assigns.
If this Guaranty is signed by more than one Guarantor, each such
Guarantor shall be jointly and severally liable hereunder.
All of LANDLORD's rights and remedies under the Lease and under this
Guaranty shall be distinct, separate and cumulative and no such right or remedy
shall be exclusive of or a waiver of any of the others.
IN WITNESS WHEREOF, the undersigned have executed this Guaranty
effective this 20th day of October, 1997.
GUARANTOR:
BY: /s/ Xxxx Street
------------------------------------
XXXX STREET
ADDRESS: 0000 XXXXXXXXX XXXX, XXXXX XXXXXX, XXXXXXXX 00000
-------------------------------
*A LIMITED GUARANTY OF ALL SUMS EXPENDED BY LANDLORD FOR TENANT FINISH AND FOR
THE $57,500 OF RENTAL ABATEMENT.**UPON REPAYMENT OF THE $57,500 PLUS INTEREST,
AS OUTLINED IN SECTION 1(a) OF THE ADDENDUM, THE GUARANTOR SHALL BE RELEASED
FROM ANY AND ALL LIABILITY.
**AT THE END OF THE 16TH MONTH OF THE PRIMARY LEASE TERM AND
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EXHIBIT "E"
SERVICES AND EXPENSES
1. Notwithstanding any term in this Lease to the contrary, it is the
intent of the LANDLORD and TENANT that this Lease is an absolute net lease to
the LANDLORD with the TENANT paying its proportionate share of all costs of
operation of the Project including and not limited to the cost of managing,
operating, cleaning of common areas and tenant spaces per building standards as
may be determined by the LANDLORD from time to time, equipping, protecting,
lighting, relamping, repairing, replacing, heating, air conditioning, of all the
areas of the Project or any other costs reasonably related to the cost of the
operation of the Project. Such costs shall include, but shall not be limited to
utilities, supplies, janitorial services, management fees, employees' wages,
social security and unemployment insurance contributions, union benefits,
rubbish, snow and ice removal, maintenance and replacement of landscaping,
paving, parking lot striping and premiums for insurance.
The LANDLORD shall provide only those services specifically stated in this
Exhibit at the cost of the TENANT. TENANT covenants and agrees to procure all
other services and pay all other costs and expenses or reimburse LANDLORD should
LANDLORD elect to pay certain costs and expenses.
2. INSURANCE.
A. LANDLORD shall procure all risk coverage subject to
standard exclusions (including coverage for rental loss in connection with
damage and destruction covered by the said fire and extended coverage
insurance), liability, xxxxxxx'x compensation and other reasonably necessary
insurance on the Project. TENANT shall reimburse LANDLORD monthly, as Additional
Rent for its proportionate share of the actual net cost and expense to LANDLORD
of such insurance including losses due to deductible insurance of the LANDLORD.
TENANT's proportionate share of such costs shall be determined by Paragraph 7 of
this Exhibit. One-twelfth (1/12th) of the amount due shall be payable on the
first day of each month and added to the monthly rental. These amounts may be
based on an estimate until the actual premiums are available and then available
adjustments shall be made and any difference shall be payable based on TENANT's
actual share as determined. Said payment amount shall be modified annually, if
necessary, in order to accurately reflect the actual insurance premium payment.
B. TENANT shall maintain at its sole cost and expense fire and
extended coverage, vandalism, malicious mischief and special extended coverage
insurance in an amount adequate to cover the cost of replacement of all
furniture, fixtures, alterations, decorations, inventory, goods, merchandise,
improvements and equipment in the Leased Premises, whether supplied or owned by
the TENANT or by the LANDLORD in companies and form acceptable to LANDLORD. The
policy of insurance required to be obtained hereunder by TENANT shall provide
that any and all loss proceeds shall be payable to LANDLORD and TENANT as their
interest may appear and shall state that the insurer will not cancel or change
the insurance without first giving the LANDLORD twenty (20) days prior written
notice. A copy of the policy or a certificate of insurance shall be delivered to
the LANDLORD within thirty (30) days of TENANT's occupancy of the premises.
C. TENANT agrees that it will not keep, use, sell or offer for
sale upon the Leased Premises any article that may be prohibited by the
LANDLORD's form of fire insurance policy. TENANT agrees to pay any increase in
premiums for insurance that may be charged during the Term of tenants or
subtenants in the Project resulting from the presence, storage, use or sale of
equipment, materials, supplies, merchandise or other articles in or about the
Leased Premises, whether or not LANDLORD has consented to the same or not.
D. TENANT, shall for the entire Term hereof, keep in full
force and effect a policy of public liability and property damage insurance with
respect to the Leased Premises, hallways of Leased Premises, and the business
operated by TENANT and any subtenants of TENANT in the Leased Premises. The
limits of said policy shall be no less than One Million ($1,000,000.00) Dollars
combined single limit coverage for bodily injury and property damage liability.
The policy shall name LANDLORD, any person, firm, or corporation designated by
LANDLORD, and TENANT as the insured and shall state that the insurer will not
cancel or change the insurance without first giving the LANDLORD twenty (20)
days prior written notice. The insurance shall be with an insurance company
licensed to do business in the State of Colorado. A copy of the policy or a
certificate of insurance shall be delivered to LANDLORD within thirty (30) days
of TENANT's occupancy of the premises. TENANT shall increase the foregoing
limits if LANDLORD deems such increase is desirable to protect TENANT and
LANDLORD as well.
E. TENANT shall repair any damage that might be caused to the
Leased Premises in connection with breaking and entering of said Leased Premises
for the purpose of larceny.
F. TENANT shall maintain at its own cost and expense a
Standard Form of Worker's Compensation and Employer's Liability Insurance
covering all TENANT's employees for injury or illness suffered in the course of
or arising out of their employment, providing Statutory Worker's Compensation
benefits and Employer's Liability Limits of liability of not less than One
Hundred Thousand ($100,000.00) Dollars and TENANT shall show evidence of such
coverage.
3. UTILITIES.
A. TENANT shall be solely responsible for and shall promptly
pay its proportionate share per Paragraph 7 hereof, of all charges for heat,
water (including sewage charges and/or taxes based on water consumption), gas,
electricity, or any other utility used or consumed in
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the Leased Premises. Should LANDLORD elect to supply the water, gas, heat,
electricity or other utility used or consumed in the Leased Premises, TENANT
agrees to purchase and pay for same as Additional Rent provided such rate is no
higher than TENANT could obtain for like service from the utility company. In no
event shall LANDLORD be liable for an interruption or failure in the supply of
any such utilities to the Leased Premises.
B. TENANT agrees to install no electrical equipment which
overloads the lines or interferes with other equipment in the Project, or any
part thereof and if said lines are overloaded by such installation, to
immediately remedy the same at its own expense and to comply with all
requirements of the Insurance Underwriters or governmental authorities.
4. TAXES.
A. TENANT covenants and agrees to pay to LANDLORD, as
Additional Rent, that sum which is equal to TENANT's proportionate share as
determined in Paragraph 7 of this Exhibit of real estate taxes and special
assessments levied and imposed against the entire Project and payable by
LANDLORD. For the tax year in which this Lease commences or terminates, the
provisions hereof shall apply in the proportionate to which the number of months
the Leased Premises are occupied by TENANT bear to a full tax year. In addition
to the foregoing, TENANT shall be liable for all taxes levied against all
personal property, and trade fixtures placed by TENANT in or about the Leased
Premises, and for any tax increase due to improvements, additions or alterations
to the Leased Premises made during the Term of this Lease.
B. In the event that any tax or assessment other than real
estate, public utility or school zone tax is ever levied against the Project,
such as a rent, business or gross receipt tax or otherwise, said tax shall be
the sole responsibility of TENANT. TENANT shall pay the same as further
Additional Rent before any fine, penalty, interest or costs may be added thereto
for the nonpayment thereof.
5. MAINTENANCE AND REPAIR.
A. LANDLORD agrees to provide regular maintenance so as to
keep in good order, condition, and repair, foundations and structural portions
of the Leased Premises, except for any damage thereof caused by any act or
negligence of TENANT, its employees, invitees, agents, licensees, or
contractors. The LANDLORD shall not be responsible if TENANT is negligent to
make plumbing, electrical, or mechanical repairs or replacements or other
improvements of repairs of any kind upon the Leased Premises except as may be
expressly set out in this Lease. Any dispute between LANDLORD and TENANT as to
the LANDLORD's obligations under this Paragraph shall not excuse the payment of
rent or other performances by TENANT.
B. TENANT agrees that, from and after the date that possession
of the Leased Premises is delivered to the TENANT, and until the end of the Term
hereof, it will be responsible for its prorata share of payments of all repairs,
maintenance, and replacements to the Leased Premises other than those
specifically required to be performed by LANDLORD in Paragraph A above,
including but not limited to the interior and exterior portions of Project
including all doors, windows, plate glass and show windows surrounding the
Leased Premises, roof and Project skin; the mechanical plumbing, heating, air
conditioning, ventilating and electric equipment and systems; partitions, and
all other fixtures, appliances and facilities furnished by TENANT or LANDLORD.
C. LANDLORD reserves the right to elect to provide certain
maintenance, repairs, and replacements, including preventative maintenance. In
the event of such election, TENANT shall pay its proportionate share of expenses
as determined in Paragraph 7 of this Exhibit.
D. TENANT shall not, however, be responsible for repair of any
damage caused by any act of gross negligence of LANDLORD, its employees or
agents. TENANT shall not be required to make structural repairs or alterations
which may be required by governmental rules, order or regulations unless
resulting from the business operations maintained by TENANT in the Leased
Premises. TENANT shall not permit or suffer the Leased Premises, or the walls or
the floors thereof to be endangered by overloading. All repairs, maintenance,
replacement or any other work required by this Paragraph shall be approved by
LANDLORD prior to commencement of such work.
E. Should any provision of this Paragraph 5 be inconsistent
with any other provision of this Lease, this Paragraph 5 shall prevail.
6. COMMON AREAS.
A. The "Common Area" of the Project is that part designated by
LANDLORD from time to time for the common use of all tenants, including among
other facilities, parking area, sidewalks, landscaping, curbs, truckways,
delivery passages, enclosed and open mall, loading areas, private streets and
alleys, lighting facilities, drinking fountains, meeting rooms, locker rooms,
public toilets, hallways, lobbies, elevators, service rooms, equipment and the
like. LANDLORD reserves the right to change from time to time the dimensions and
location of the Common Areas as shown on Exhibit "A" as well as the dimension,
identity and type of any buildings (except the Leased Premises) shown on Exhibit
"A" and to construct additional buildings or additional stories on existing
buildings or other improvements in the Project. LANDLORD also reserves the right
to dedicate portions of the Common Area and other portions of the Project
(except the Leased Premises) for street, park, utility and other public
concessionaires and licensees shall have the non-exclusive right to use the
Common Area, as constituted from time to time, such use to be in common with
LANDLORD, other tenants of the Project and other persons entitled to use the
same, and subject to the rules and regulations governing use as they may be
amended from time to time, including the designation of specific areas in which
automobiles owned by TENANT, its
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employees, sublessees, concessionaires and licensees shall be parked. Upon
request of LANDLORD, TENANT will furnish to LANDLORD a complete list of the
license numbers of all automobiles operated by TENANT, its employees,
sublessees, concessionaires or licensees. TENANT shall not take any action which
would interfere with the rights of other persons to use the Common Area.
LANDLORD may temporarily close any part of the Common Area for such periods of
time as may be necessary to prevent the public from obtaining prescriptive
rights or to make repairs or alterations.
B. LANDLORD will operate and maintain the Common Area. The
"LANDLORD's Operating Costs" shall be those of operating and maintaining the
Common Area in a manner deemed by LANDLORD reasonable and appropriate and for
the best interests of the Project, including, without limitations; all costs and
expense of managing, operating, maintaining, repairing, replacing, lighting,
providing janitorial service, cleaning, painting, striping, policing, insuring,
providing utilities, removing snow, ice debris, conducting efficiency studies,
and regulating traffic; costs and expenses, if any, of heating, ventilating and
air conditioning the common areas; cost and expenses of inspection, maintenance,
and depreciation of machinery and equipment used in the operation and
maintenance of the common facilities, including, if any the Common Area heating,
air conditioning and ventilating equipment, and personal property taxes and
other charges incurred in connection with such equipment; costs and expense of
maintaining, planting, replanting and replacing flowers and shrubbery and
planters; real estate taxes and special assessments applicable to the Common
Area and land underlying same; cost and expense for the rental of music program
services and loudspeaker systems including furnishing electricity therefor;
sprinkler maintenance costs; administrative costs equal to four percent (4%) of
the annual Minimum Rent, of operating and maintaining the Common Area. Such
costs and expenses shall not include depreciation (other than depreciation
specified).
C. TENANT shall pay LANDLORD, as Additional Rent, its
proportionate share of LANDLORD's Operating Costs. The TENANT's proportionate
share shall be determined by Paragraph 7 of this Exhibit.
D. The charge required hereunder shall be paid by TENANT in
monthly installments in such amounts as are estimated and billed by LANDLORD at
the beginning of a twelve (12) month period commencing and ending on dates
designated solely by LANDLORD, each such installment being due on the first day
of each month. The monthly payments to be made by TENANT shall be adjusted and
revised to compensate for any overpayment or underpayment made by TENANT in such
preceding twelve (12) month period. Within ninety (90) days after the end of
each twelve (12) month period, LANDLORD shall, upon request, make available
LANDLORD's records relating to LANDLORD Operating Costs for such preceding
period.
7. PROPORTIONATE SHARE. TENANT's proportionate share of expenses or
other amounts shall be computed by multiplying said expense or amount by a
fraction, the numerator of which shall be the number of Leaseable Square Footage
of area in the Leased Premises leased by the TENANT and the denominator of which
shall be the total number of Leaseable Square Footage of area in the Project.
Total Leaseable Square Footage of area in the Project is subject to change based
on Common Area changes.
8. BOOKS AND RECORDS. LANDLORD shall maintain books and record
outlining the costs of the Services and Expenses described in this Exhibit "E"
and shall make same available for inspection by the TENANT during normal
business hours with reasonable notice by the TENANT.
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EXHIBIT "F"
RULES AND REGULATIONS
A. The sidewalks, entrances, halls, passages, elevators and stairways
shall not be obstructed by any of the tenants or used by them for any other
purpose than for ingress and egress to and from their respective Leased
Premises.
B. Tenants, their agents, employees or visitors, shall not make or
commit any improper noises or disturbances of any kind in the Project, or make
or defile the Project or interfere in any way with other tenants or those having
business with them.
C. The toilet rooms, water closets, locker rooms and other water
apparatus shall not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, ashes, chemicals or other
unsuitable substances, shall be thrown therein. Any damage from such misuse or
abuse shall be borne by the TENANT by whom or by whose employees or visitors it
shall be caused.
D. No carpet, rug or other article shall be placed in corridors as a
door mat, and nothing shall be thrown or allowed to drop by the tenants, their
agents, employees or visitors out of the windows, doors, or balconies, or down
the passages or shafts of the Project, and no tenants shall sweep or throw or
permit to be thrown from the Leased Premises, any dirt or other substance into
any of the corridors or halls, elevators, shafts or stairways of such Project.
E. No articles (except for interior artwork) shall be fastened to or
holes drilled or nails or screws driven into walls, window, partitions, nor
shall the walls or partitions be painted, papered or otherwise covered, or in
any way marked or broken, without the prior written consent of the LANDLORD.
F. Nothing shall be placed on the windows or on the outside of the
Project by the TENANT including communication devices.
G. The only window treatment permitted for the windows in the Leased
Premises is that approved in writing by the LANDLORD.
H. No sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the outside or inside of said Project except those
approved in writing by LANDLORD.
I. After permission to install telephones, call boxes, telegraph wires
or other electric wires shall have been granted, LANDLORD shall approve their
location before installation. No wires shall be run in any part of the Project
excepting by or under the direction of LANDLORD. Attaching of wires to the
outside of the Project is absolutely prohibited. It is understood that
telephones are installed solely for the use and benefit of TENANT and
accordingly, TENANT will defend and save LANDLORD harmless from any damages
thereto.
J. The LANDLORD shall in all cases have the right to prescribe the
weight and proper position of safes or other heavy objects in the Project; and
the bringing in of said safes, all furniture, fixtures or supplies, the taking
out of said articles and moving about of said articles within the Project, shall
only be at such times and in such manner as the LANDLORD shall designate; and
any damage caused by any of the before mentioned operations or by any of the
said articles during the time they are in the Project, shall be repaired by
TENANT at TENANT'S expense.
K. No bicycles or similar vehicles will be allowed in the Building. No
animals or birds shall be brought into or kept upon the Project.
L. No TENANT shall do or permit anything to be done in said Project, or
bring or keep anything therein which will in any way increase the rate of fire
insurance on the Project or on property kept therein, or obstruct or interfere
with the rights of other tenants, or in any way injure or annoy them or conflict
with the laws relating to fires, or with the regulations of the Fire Department
or with any insurance policy upon said Project or any part thereof, or conflict
with any of the rules and ordinances of the Department of Health. Tenants
understand and agree that the vehicle of any tenant, its employees, agents or
guests, parked in an unauthorized area, and particularly in areas designated by
specially as visitor parking or fire lane areas, may be towed away at owner's
risk and expense.
M. LANDLORD shall not be responsible to tenants for loss of property or
for any damage done to the furniture or other effects of tenants by the LANDLORD
or any of its employees or agents or any other persons or firms unless proof of
LANDLORD's gross negligence for such damage or loss of property is established.
N. TENANTS shall securely lock the doors to its tenant spaces at all
times before leaving the Project and TENANTS shall securely lock the doors to
the main entries before leaving the Project during the times other than regular
business hours of the Project.
O. No machinery of any kind, other than normal office machines (i.e.,
electric typewriters, dictating or adding machines, or similar desk type
equipment only), shall be allowed to be operated on the Leased Premises without
prior written consent of LANDLORD.
P. No interference with the heating apparatus will be permitted.
TENANTS shall maintain minimum heating requirements.
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Q. The use of the Leased Premises as sleeping apartments, for the
preparation of foods except as approved by LANDLORD, or for any immoral or
illegal purpose is absolutely prohibited.
R. No TENANT shall conduct, or permit any other person to conduct, any
auction upon its Leased Premises, or store goods, wares, or merchandise upon its
Leased Premises without the prior written approval of the LANDLORD except for
the usual supplies and inventory to be used by the TENANT in the conduct of its
business.
S. All glass, locks and trimmings, in or about the doors and windows of
the Leased Premises and all electric fixtures on the Leased Premises which
belong to the Project shall be kept whole, and whenever broken by TENANT or
TENANT's employees, agents, guests, invitees or licensees, TENANT shall
immediately notify LANDLORD of such breakage. All such breakage shall be
repaired by LANDLORD at TENANT's expense or may be repaired by TENANT at
TENANT's own expense at the option of the LANDLORD.
T. Any and all damage to floors, walls or ceilings due to TENANT or
TENANT's employees failure to shut off running water or liquid, shall be paid by
TENANTS.
U. All furniture or fixtures in carpeted areas shall have carpet
casters, carpet xxxxxxx, or other similar protective devices.
V. No additional locks shall be placed upon any doors without the
written consent of the LANDLORD, and the TENANTS shall not permit any duplicate
keys to be made. All necessary keys shall be furnished by the LANDLORD and the
same shall be surrendered upon the termination of this Lease, and the TENANTS
shall then give to the LANDLORD or his agents explanation of the combination
upon the doors or vaults.
W. If TENANTS do not keep their Leased Premises in a good state of
preservation and cleanliness during the continuance of this Lease, the
Superintendent of LANDLORD or contractor designated by LANDLORD may take charge
of and clean the said Premises at TENANT's cost.
X. TENANTS will not conduct any auction, fire or bankruptcy sales
without first obtaining LANDLORD's written consent; or utilize any illegal
method of business operation; will not use or permit the use of any apparatus
for sound reproduction or transmission of any musical instrument or device in
such manner that the sounds so reproduces, transmitted or produces shall be
audible beyond the interior of the Leased Premises; will not cause or permit
objectionable odors to emanate or be unreasonably dispelled from the Leased
Premises; and will not load or unload or permit the loading or unloading of
merchandise, supplies or other property outside the areas designated therefor
and will comply with LANDLORD's reasonable rules for the delivery and shipping
of merchandise; and will use its best efforts to prevent the parking or standing
outside of said area, of trucks, trailers or other vehicles or equipment engaged
in such loading or unloading; and will not solicit business in the parking lot
or other Common Areas or distribute handbills or other advertising matter in
said areas.
Y. The LANDLORD will establish from time to time the hours of operation
of the mechanical, electrical and security systems of the Project to allow
TENANTS a reasonable period of operation that is equitably consistent with the
uses by the TENANTS of the Project. TENANT shall be responsible for additional
charge on utilities if use of the building by TENANT is over 20% of regular
business hours. Such charge shall be based on the same percentage as use overage
occurs.
Z. LANDLORD reserves the right to make reasonable rules and regulations
to control the use of parking.
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ADDENDUM
TO THE LEASE AGREEMENT
BETWEEN
THE CHAPEL HILLS OFFICE BUILDING, A JOINT VENTURE ("LANDLORD")
AND
XXX.XXX, INC. ("TENANT")
1. Rent
Months Net Rent Operating Expenses
------ -------- ------------------
1-6(a) $11.50 $5.75
7-18 $12.50 $5.75
19-30 $13.00 $5.75
31-52 $13.50 $5.75
53-60 $14.00 $5.75
(a) The net rent for months 1-4 shall be abated and the
Tenant shall be responsible for the Operating
Expenses only. The net rent on 15,000 sq. ft. in
months 1-6 per month is $14,375 and the total
abatement concession is $57,500. The $57,500
concession shall be amortized over months 5 through
16 and shall accrue interest at a rate of 10% per
annum at the beginning of the 5th month.
2. Operating expenses are subject to the provisions of additional
rent contained in Section 4 of the Lease.
3. Landlord reserves the right to submeter the Tenant's premises
area in the event Tenant's use of utilities exceeds normal
building usage.
4. Tenant has the right to use the balance of the space on the
4th floor. The costs of the right shall be the monthly
operating costs on the balance of the space for the first six
(6) months. Beginning in month seven (7), Tenant shall be
responsible for net rent and operating expenses.
5. Landlord agrees to permit Tenant, at Tenant's cost, to erect a
building mounted sign on the freeway side of the building,
which will be clearly visible from the freeway. The sign shall
be in accordance with city and state ordinances and subject to
the consent of the Landlord, which shall not be unreasonably
withheld. Tenant has the option to place signage the same size
and configuration as the former Telephone Express sign. The
sign will be as large as, but will not exceed that size.
Landlord shall not allow any other Tenant to erect a sign on
the building without the Tenant's consent. At the end of the
lease term Tenant shall remove the sign, at Tenant's expense,
and make any repairs to the building to restore it to its
previous condition.
6. Tenant has a roof mounted microwave antenna. The Tenant is
solely responsible to maintain and repair any damage that is
created by the installation, removal or maintenance of the
antenna. The Landlord will insure that there will be no roof
obstructions erected which will block the antenna's line of
sight to the south and west.
7. Xxxxxx XxXxxxxxxx has acted as a Transaction Broker by the
agreement of both parties in this transaction.
8. Tenant will have certain areas of its leased premises which it
shall designate to Landlord as secured areas. Janitorial
service will not be supplied by the building to these areas.
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SECOND ADDENDUM TO THE LEASE AGREEMENT
THIS SECOND ADDENDUM to the Office Lease Agreement is entered
into by and between The Chapel Hills Office Building, a Colorado Joint
Venture, as "Landlord", and XXX.Xxx, Inc., as "Tenant".
Landlord and Tenant have entered into a business Office Lease
Agreement dated September 11, 1997 (the "Lease"), and this is the
Second Addendum to that Office Lease Agreement. Terms not defined in
this Second Addendum shall have the meaning given them in the Office
Lease Agreement. Landlord and Tenant desire to modify the Lease
Agreement. For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree
as follows:
1. [LANGUAGE IN THIS SECTION DELETED AND REPLACED WITH THE
FOLLOWING LANGUAGE:]
See Sec. 4 below.
2. The Second Addendum, as depicted on Exhibit A, which is
attached hereto, and being more particularly described as
Suite 306, 0000 Xxxxx Xxxxxxx Xxxx., Xxxxxxxx Xxxxxxx, XX
00000, depicts the expansion of the original premises by 1,868
rentable square feet. By execution of this Addendum, Landlord
and Tenant hereby agree that the total premises area of Suite
306 shall contain a total premises area of 1,868 rentable
square feet ("New Premises Area").
3. This Second Addendum to the Office Lease Agreement provides
that the term of this expansion space shall be conterminous
with the Lease.
4. The commencement date of this lease shall be upon substantial
completion of improvements to premises estimated to be June 1,
1998.
5. The termination date of this lease shall be October 31, 2002.
6. The per annum square footage rent for the expansion space
shall be per the terms of the Lease.
7. Tenant Finish: Landlord agrees to provide the following:
a. Replace carpet with same quality carpet as in Tenant's
existing suite.
b. Repaint entire suite with same color paint as in
Tenant's existing suite.
c. Remove one (1) wall.
8. In addition, Tenant will pay its prorata share of operating
expenses, as defined in the original lease agreement.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Second
Addendum to the Lease Agreement as of this 20 day of May, 1998.
LANDLORD: TENANT:
CHAPEL HILLS OFFICE BUILDING, XXX.XXX, INC.
A JOINT VENTURE
By: /s/ Illegible By: /s/ Xxxxxxxx X. Xxxx
---------------------------- --------------------------------
Title: Agent Title: COO
------------------------- ------------------------------
Date: May 15, 1998 Date: May 20, 1998
-------------------------- ------------------------------
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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("Amendment") is made as of August 12,
1998, by and between XXX.XXX, INC., a Delaware corporation ("Tenant"), and BVT
CHAPEL HILLS, LTD., a Tennessee limited partnership ("Landlord"), with reference
to the following facts.
RECITALS
A. Landlord (then known as The Chapel Hills Office Building, a Joint
Venture) and Tenant entered into a certain Office Lease Agreement dated as of
September 11, 1997, as supplemented and amended by that certain Addendum to
Lease Agreement, and that certain Second Addendum to Lease Agreement dated May
20, 1998 (as supplemented and amended, the "Lease"), pursuant to which Tenant
leases from Landlord certain premises described in the Lease (the "Leased
Premises") and located in the building known as 0000 Xxxxx Xxxxxxx Xxxxxxxxx
(the "Project") in Colorado Springs, Colorado.
B. Tenant wishes to add certain space in the Project to the Leased
Premises, and Landlord has consented to that addition, subject to the terms and
conditions of this Amendment. All capitalized terms used in this Amendment but
not otherwise defined herein shall have the meanings given to them in the Lease.
AGREEMENT
In consideration of the recitals set forth above and the covenants
contained herein, Landlord and Tenant hereby agree as follows:
1. Expansion of Premises. The Leased Premises will be expanded as
of the Expansion Date (as defined below) to include those premises known as
"Suite 301" of the Project and depicted in Exhibit A attached hereto ("Suite
301"). By adding Suite 301 to the Leased Premises, the Leasable Square Footage
of the Leased Premises will increase by 2,396 square feet, which Leasable Square
Footage is calculated based on a revised load factor of 1.145 (the "Suite 301
Leasable Area"). The total Leasable Square Footage of the Leased Premises shall
be 25,209 square feet.
2. Term. Tenant's lease of Suite 301 will commence as of the date
(the "Expansion Date") that is the later of August 15, 1998 or the date that
Tenant is notified by Landlord that the improvements to Suite 301 required under
Section 4 below have been substantially completed. The lease of Suite 301 will
expire on the last day of the Term, which Landlord and Tenant acknowledge and
agree is October 31, 2002.
3. Rent.
3.1 Commencing as of the Expansion Date, and continuing
until December 31, 1998, Tenant will pay to Landlord annual Minimum Rent for
Suite 301 in an amount equal to
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the Xxxxx 000 Xxxxxxxx Xxxx multiplied by $14.00, which additional Minimum Rent
will be pro-rated on a per diem basis for the month in which the Expansion Date
occurs.
3.2 Commencing January 1, 1999, and continuing through
the remainder of the Term, Tenant will pay to Landlord annual Minimum Rent for
Suite 301 in an amount equal to the Xxxxx 000 Xxxxxxxx Xxxx multiplied by the
following amounts during the following years:
January 1, 1999 to December 31, 1999: $14.50
January 1, 2000 to December 31, 2000: $15.00
January 1, 2001 to December 31, 2001: $15.50
January 1, 2002 to October 31, 2002: $16.00
3.3 In addition to Minimum Rent, Tenant will pay all
applicable Additional Rent and other charges with respect to the Suite 301
Leasable Area, including its pro rata share of operating expenses, in the manner
and at the times provided in the Lease, effective upon the Expansion Date.
4. Tenant Improvements. Landlord will perform and pay for the
following improvements to Suite 301: (a) replacement of the carpet; (b)
repainting; and (c) addition of an interior door to Suite 306, and any other
reasonable items, all subject to Tenant's reasonable approval, but at a total
cost not to exceed $5.00 per square foot of the Suite 301 Leasable Area. Except
as required by the preceding sentence, Tenant acknowledges that it has inspected
Suite 301, is familiar with its physical condition, and accepts Suite 301 in its
"As Is" condition. Tenant acknowledges and agrees that Landlord makes no
warranties, either explicit or implied, regarding the suitability of Suite 301
for any use or purpose.
5. Parking. Section 5 of the General Terms and Condition of Lease
Agreement is hereby amended and restated to read as follows:
The Project shall include approximately 2.9 parking spaces per
One Thousand (1,000) leasable square feet, which parking spaces shall
be available for Tenant's use on a non-exclusive basis with other
tenants of the Project and visitors.
6. Broker's Commissions. Tenant and Landlord represent and
warrant to each other that there are no claims for brokerage commissions or
finder's fees in connection with this Amendment. Tenant agrees to indemnify
Landlord against and hold it harmless from all liabilities arising from any
claims of brokerage commissions and finder's fees made by any broker or finder
engaged by Tenant, and Landlord agrees to indemnify Tenant against and hold it
harmless from all liabilities arising from any claims of brokerage commissions
and finder's fees made by any broker or finder engaged by Landlord.
7. Authority. Each of the persons executing this instrument on
behalf of a party warrants that such party is a duly authorized and existing
entity, that such party has full right and authority to fulfill each of its
obligations hereunder, and that each of the persons signing on behalf of such
party is authorized to do so.
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8. Successors and Assigns. All provisions of this Amendment will
be binding upon and inure to the benefit of the parties hereto, their successors
and assigns.
9. Effect of Agreement. This Amendment will not constitute an
offer by Landlord nor will it be of any binding effect on Landlord until it is
signed by Landlord. This Amendment contains the entire agreement between the
parties relating to the matters discussed herein. Except as specifically set
forth in this Amendment, all provisions of the Lease remain in full force and
effect.
10. Counterparts. This Amendment may be executed in separate
counterparts, each of which, when taken together, will constitute a single
document.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
TENANT:
XXX.XXX, INC.,
A Delaware corporation
By: /s/ XXXXXXXX X. XXXX
--------------------------------------
Name: Xxxxxxxx X. Xxxx
------------------------------------
Title: COO
-----------------------------------
LANDLORD:
BVT CHAPEL HILLS, LTD.,
A Tennessee limited partnership
By: BVT Real Estate Development, Inc.
A Tennessee corporation, as
General Partner
By: /s/ J. XXXXX XXXXXXXX, XX.
-----------------------------
Name: J. Xxxxx Xxxxxxxx, Xx.
--------------------------
Title: Assistant Secretary
--------------------------
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